UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

KARON R. ROBINSON, an individual, Plaintiff - Appellee / Cross - Appellant,

v. CAVALRY PORTFOLIO SERVICES, LLC, a foreign limited liability company, Defendant - Appellant / Cross - Appellee. Nos. 08-5020 & 08-5022 (N.D. Okla.) (D.C. No. 4:05-CV -00727-GKF-FHM)

ORDER AND JUDGMENT *

Before O’BRIEN , GORSUCH , and HOLMES , Circuit Judges.

KaRon Robinson (KaRon) filed a Title VII suit claiming he r employer, Cavalry Portfolio Services, L.L.C. (Cavalry), discri minated against her because she is a white

* This order and judgment is an unpub lished decision, not bi nding precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1. It is appropriate as it relates to law of th e case, issue preclusion and claim preclusion. Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). Citation to an order and judgment must be accompanied by an appropriate parenthetical notation

B (unpublished). Id

. FILED United States Court of Appeals Tenth Circuit February 10, 2010
Elisabeth A. Shumaker Clerk of Courtwoman married to a black man, Orlando Robinson (Orlando). 1 KaRon represented herself at trial. The jury re turned a verdict in her favor on claims of disparate treatment, retaliation and hostile work envir onment. Cavalry appeals from the district court’s denial of its motion for a directed verdict on KaRon’s claims and, in the alternative, the denial of Cavalry’s post-trial request for a new tria l based on KaRon’s conduct during her selfrepresentation. KaRon cross-appeals from the di strict court’s grant of a directed verdict to Cavalry on her constructive discharge and punitive damage s claims. We reverse and remand for the district court to enter a directed verdict for Cavalry on KaRon’s discrimination, retalia tion and hostile work e nvironment claims.
I. FACTUAL BACKGROUND 2 Orlando and KaRon both worked at the Cavalry office in Tulsa, Oklahoma. Orlando began working at Cavalry in December, 2003. He recruited his wife to apply for a job and she began her employment with Cavalry on July 26, 2004.
A. Cavalry’s Business Operati ons and Payment Structure. Cavalry is a debt collection service agency. Its home office is located in Phoenix, Arizona, with satellite offices in St. Paul, Minnesota and Tulsa, Oklahoma. Collection specialists (specialists) such as KaRon are as signed delinquent accounts to try to collect. The original distribution of acco unts is automatically sent to the individual specialist’s queue by the portfolio managers in the Phoenix office, usually within the first ten days of

1 We use the Robinsons’ first names for clarity and ease of expression.

2 These facts were not contested at trial.- 3 - the month. 3 On the collection floor, specialists are placed in “teams” under one manager who, in turn, reports to a manager/director. If a specialist does not receive an adequate amount of accounts, it is the manager’s respons ibility to go to a director to ask that Phoenix be notified of the s ituation. Managers do not wo rk individual accounts, but receive commissions based on the collections of the people on their team. Some specialists who work “manual” accounts (meaning the spec ialist manually dials the phone rather than having a computer automatically dial their ne xt account) have access to a computer program, called “skip tools,” to res earch and correct debtors’ invalid telephone numbers or addresses. Collection accounts differed in the am ount owed and in the difficulty in successfully negotiating repayment. Du ring a new employee’s training, Cavalry “[g]enerally . . . focused on the newer people working smaller balanced accounts [approximately $500.00] . . . [b ecause] the [training specialists ] didn’t have skip tools.” (Vol. II at 652.) Specialists could accept se veral forms of payment from the debtors. One form was post-dated checks. Another wa s an Automatic Clearinghouse payment (an ACH). This is an agreemen t from a customer to automatic ally pay monthly from his or her bank account. The advant age for the customer is he or she pays no interest. The benefit for the collection specialist is th e monthly payment goes toward his or her commission every month without having to follow up w ith the customer.

3 There was some testimony that, at one time, Tulsa management had control of the distribution of accounts to its office. However, there was no testimony that this control was in effect during KaRon’s employment.- 4 - Specialists could also “exha ust” an account because it was uncollectible. The specialist’s computer screen a llowed them to designate one of three different reasons to exhaust: unable to locate a customer after a diligent search; customer unable to pay; and the customer’s absolute refusa l to pay. When an account is exhausted, the collector presses a button on the computer and the account is forwarded to the collector’s manager’s queue to either be sent on as uncoll ectible or, if the spec ialist is exhausting too many accounts, sent back to the specialist for them to try contacting the debtor again. A major potential source of income for a collections specialist is the commission received on paying accounts. The commission percentage is based on a scoring formula derived from different factors relating to a de btor’s propensity to pay on the account and the availability of state la ws to enforce collections. The Phoenix office assigns a higher commission rate on more difficult accounts. Fo r example, if the debtor was located in a state where the laws were not favorable to su it, the commission rate would be higher. If the specialist discovered the current address of the debtor had changed to a different state with a lower rating factor, th e commission would be changed as well. The commission for each payment was applied to the specia list’s monthly goal – an amount calculated from the specialist’s pay rate and the numbe r of hours worked each month. As a specialist’s negotiated payments reached incremental levels a pproaching her goal, such as 50%, 75% and 100%, she would r eceive increasing bonus payments.
B. KaRon Robinson’s Employment 1. Academy Bay At the time KaRon was employed, all new employees were assigned to work in- 5 - the training unit known as Academy Bay, an experimental training program initiated in May or June 2004. Upon completion of cert ain criteria, an employee would “graduate” to the floor and receive an assignment to a collection team. Rhonda Bemore was the manager of Academy Bay and the direct s upervisor of approximately twenty new employees. Bemore’s supervisors were Andrew Brown, Vice-President of Tulsa operations, Mickey Warren (title unknown) and Mike Madewell, Site Manager and “for a period of time,” Academy Bay Director. (Vol. II at 769.) Madewell determined who would graduate to the floor with input from Brown and Bemore. While in Academy Bay, KaRon complained to Brown ab out Bemore’s supervision cl aiming “she was a little more strict or a little more harsh th an she should be, th at she didn’t get [KaRon’s] letters done very efficiently, [and] that she didn’t answer [KaRon’s] questions in a professional manner.” ( Id. at 638.)
2. Racial Incident On October 21, 2004, Ki m Cooper, a Cavalry employee in Academy Bay, approached Bemore to report an incident in the lunch room regarding race. Bemore asked who was involved and Cooper named KaRon and Mark Torres. Bemore relayed the report to Madewell who summoned KaRon and Torres for interviews and to give written statements. Madewell spoke with KaRon first. She wrote the following

statement: Mark and I were having lunch and Ma rk politely asked me if I only dated black guys like Mariza did. I told him no I was attracted to both I just happened to end up [with] one of a di fferent race. He responded [with] the fact that he would neve r date someone of another race, he just couldn’t stand having to listen to them complain about the whole slavery topics. He- 6 - thought they used it as a crutch. Mark continued to express that he’s not a racist that he just didn’t really lik e blacks until he got to know them. Which is fine however there were seve ral times he used the word “Nigger” while referring to them. He explained th at he just didn’t like the fact that they can call each other by th at word but he can’t call them that. I’m pretty sure he wasn’t using the term neg[ativ ely] he was just using the term to describe a certain situation. Howeve r there were several people in the breakroom and I’m sure they over-heard him using the term. I did [talk to] him outside after lunch bec[ause] I was offended and Mark explained to me that he was using the word to explain hi mself in that situation but he wasn’t calling anyone here that. He apologized to me for even using the term and I explained to him that I understood if he felt that however work is not the place to discuss it. He had also made a comment that he didn’t have black in his bloodline because if he did he woul d be scraping that sh_t off. I told him that was a very racist thing to say and once again he cont[inued] to explain that he has black frie nds, and he’s not a racist. (Vol. IV at 1589-90.) Torres was interviewed next. He wrote in relevant part: First of all I have to say th at I am naturally a jokster [ sic ] and I am always joking around with people, this is just who I am. Jokingly I [said] to KaRon “if you leave your husband are you going to find you a good looking white guy.” Obviously, I guess she got offended by me saying that and she said kind of inquizitively [ sic ] “Are you prejudiced?” I said “No of course not, I was just curious.” Then me being the jokster [ sic ] that I am trying to be funny I was asking my buddy Adam “why is it the black guys in my team can say “whats up my nigga” to each other but if we said it we would get hurt.” I was just giving my opinion in a funny way but because the N word was used, even thought it was not directed at anyone, and even though if I happened to be black I would not be writing this right now, it should not have been said. My Opinion – I want to apolige [ sic ], but I would also like to say I really don’t think its right that the N-word is [said] almost on a daily basis by some of the black humans that work at this site. But because I [said] this word, even thou gh it was not directed at anyo ne and I would never direct that word to anyone, that I am sitti ng here under questi on because I am not African American. When I hear African Americans say this word daily. I want to reiterate the word was not [said] towards anyone it was used in the tense [ sic ] of asking a question. Thats it thats the bottom. [ sic ] Why,- 7 - because Mark Torres says so! ( Id. at 1591-92.) After reading Torres’ statement, Made well also interviewed Adam Aven who

wrote: During lunch in the break room (east break room) myself, Mark T. and the young lady were visiting together while we ate. She asked Marc for his opinion [and] or thoughts on a particul ar subject [and] he proceeded to tell her. Some of his views pr obably sounded “rac ial” in nature, but in reality probably weren’t. But the way she pe rceived them may have offended her. (R. Vol. IV at 1588). Madewe ll gave Torres a verbal warnin g that his conduct would not be tolerated and any further similar conduct would lead to disciplinary action, including termination. Madewell then delivered the wr itten statements to Vick i Arnold, the on-site human resources representative. In turn, To dd Tipton, director of human resources in Phoenix, was made aware of the statements. Two days later, Torres was terminated fo r excessive tardiness. Apparently believing his statements to KaRon were at l east a partial cause of his lay off, Torres was waiting in the parking lot when KaRon and Or lando left work that evening. Torres shouted insults and threats. The Robinsons we re asked to come back inside the building while someone else went outside to tell To rres he must leave or the police would be called. Torres left.
3. David Shaw’s Unit Academy Bay was discontinued at the end of December 2004 and the specialists remaining in Academy Bay were assigned to floor units. KaRon was assigned to David Shaw’s unit. While in Shaw’s unit, KaRon complained about the am ount of accounts she- 8 - received. The same complaint, however, was voiced by many specialists. She also informed Shaw she was having problems with her computer but nothing was done about it. On April 20, 2005, without explanation, KaRon telephoned to submit her resignation. Orlando resigned the same day. According to KaRon, her resignation was ca used by her treatment after the Torres incident. She claimed Cavalry gave her fewer and less lucrative accounts, had her commissions lowered and told her she could not be seen w ith her husband even though other couples were free to mingle. She al so claimed she was not promoted out of Academy Bay when other less competent employe es graduated to the floor. She alleged she was subject to verbal abuse and inequita ble disciplinary measures by her supervisors and the conditions of her work forced her to resign. 4
II. PROCEDURAL BACKGROUND A. Pretrial KaRon filed a claim with the Equal Employment Opportunity Commission on June 13, 2005, and on Septembe r 28, 2005, she received a no tice of right to sue. She filed her lawsuit on December 22, 2005, ra ising three claims: sexual discrimination, retaliation and hostile work envi ronment pursuant to Title VII of the Civil Rights Act of

4 KaRon’s anger and her intention to sue Cavalry at the time she resigned are not disputed. Before leaving her employment, Ka Ron copied and retained numerous Cavalry documents containing client in formation. During re-direct examination of David Shaw, she asked, “So you don’t think it’s fair that [I] secured the informat ion to show . . . mistreatment?” (Vol. II at 739.) On her last day, she transferred 50 to 75 of her accounts to the “Spanish bin,” where th e accounts would be assigned to a specialist proficient in Spanish. In her questions to Shaw, she stated she did this in an attempt to prevent Shaw from receiving any commission on those accounts.- 9 - 1964, 42 U.S.C. § 2000e et seq ., seeking actual, compensatory and punitive damages. At some point KaRon abandoned her sexual disc rimination claim. The pre-trial order identifies the issues as: “1.) r ace discrimination [based on racial association]; 2.) hostile work environment; and 3.) retaliation whic h ultimately resulted in her constructive discharge.” (R. Vol. I at 37.)
B. Trial The jury trial began on Ap ril 18, 2007, and continued through April 24, 2007. KaRon called Bemore, Brown, Madewell and Shaw to testify as hostile witnesses. She also called black co-employees Vince Brinkley, who worked with her in Academy Bay, and Kari Kiger, a co-worker in David Shaw ’s unit. In additi on, KaRon presented testimony from her husband (a manager-in-trai ning) and Gregory Kent Mitchell, another manager-in-training. After KaRon presented her case, Cavalry moved for judgment as a matter of law on all claims. The district court took the mo tion under advisement. At the completion of all evidence, Cavalry renewed its motion. The district court granted a directed verdict to Cavalry on KaRon’s constructiv e discharge and punitive dama ges claims, but allowed the jury to determine her discri mination, retaliation and hostile work environment claims.
C. The Verdict and Post-Trial Motions The jury returned with a verdict in KaRon’s favor on her discrimination, retaliation and hostile work envi ronment claims, awarding her $150,001 in compensatory damages and $150,000 in back pay. Both parties filed post-trial motions. KaRon requested over two million dollars in future damages based on the jury’s finding she was- 10 - subject to a hostile work environment which pr evented her successful career at Cavalry. Cavalry filed a renewed motion for judgment as a matter of law claiming KaRon failed to establish her prima facie case, and even if she did, she faile d to show Cavalry’s business reasons for its actions were pretext. Cavalr y also filed a motion for a new trial claiming KaRon’s emotional outbursts and improper questions tainted the trial’s outcome. The court granted Cavalry’s motion for a new trial solely on the back-pay damages. The remaining post-trial motions were denied. Following a new trial on back-pay damage s, the court reduced the jury’s award from $150,000 to $12,14 1.71 including interest. 5 Cavalry appeals from the denial of its motions for either a directed verdict or a new trial. KaRon cross-appeals from the directed verdict on constructive discharge (inc luding future damages) and the denial of punitive damages.
III. DISCUSSION A. Waiver As an initial matter, KaRon maintains Cava lry waived all but one of its arguments on appeal because it failed to raise the othe r issues when making its pre-verdict motion for a directed verdict. 6 “To preserve a sufficiency of the evidence claim for appellate review, a party must move for judgment as a matter of law (directed verdict) under Federal Rule of Civil Procedure 50(a) at the close of the evidence . . . . Motions under Rule 50 must ‘specify the judgment soug ht and the law and the facts on which the

5 KaRon was represented by counsel at the damages trial before the district court.

6 KaRon does not specify exactly which argument she believes was preserved.- 11 - moving party is entitled to the judgment.’” United Int’l Holdings, Inc. v. Wharf (Holdings) Ltd. , 210 F.3d 1207, 1228 (10t h Cir. 2000) (quoting Fed. R. Civ. P. 50(a)(2)). Rule 50(a) may not be circumvented “by rais ing for the first time in a post-trial motion issues not raised in an earlier motion for directed verdict.” Id. Cavalry maintains the issues were raised at the proper time but, in any event, KaRon waived her challenge by failing to raise it in the district court. See Guides, Ltd. v. Yarmouth Group Prop. Mgmt. Inc. , 295 F.3d 1065, 1076 n.3 ( 10th Cir. 2002) (“When the non-moving party fails to raise the inadequa cy of a Rule 50(a) motion in opposition to a Rule 50(b) motion, that part y cannot raise waiver as an argument on appeal.”). Given KaRon’s waiver of her argument, we consider all issues determined by the district court.
B. Sufficiency of the Evidence We review the district court’s denial of a Rule 50(b) motion for judgment as a matter of law de novo, applying the same standard as the district court. Id. at 1073. We review the entire record and co nstrue the evidence with all reasonable inferences in the light most favorable to the nonmoving party. We do not make cred ibility determinations or weigh the evidence. Id. Judgment as a matter of law is appropriate “only if there is no legally sufficient evidentiary basis for the claim.” Id. “[A] plaintiff’s prima facie case, combined with sufficien t evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves v. Sanderson Plumbing Products , 530 U.S. 133, 148 (2000). “Proof that the defendan t’s explanation is unworthy of credence is simply one form of circumstan tial evidence that is probative of intentional discrimination,- 12 - and it may be quite persuasive.” Id. at 147; see also St. Mary’s Honor Ctr. v. Hicks , 509 U.S. 502, 511 (1993) (“The factfinder’s disb elief of the reasons put forward by the defendant (particularly if disbelief is acco mpanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination.”). This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury’s finding of liability. Certainly there will be instances where, although the plainti ff has established a prima facie case and set forth sufficient evidence to re ject the defendant's explanation, no rational factfinder could conclude th at the action was discriminatory. * * * * Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evid ence that supports the employer’s case and that properly may be considered on a motion for judgment as a matter of law. Reeves , 530 U.S. at 148-49.
1. Retaliation KaRon claims Cavalry’s discriminatory acti ons were in retaliation for her report of the Torres incident. 7 The relevant anti-retaliation provision states: It shall be an unlawful employment practice for an employer to discriminate against any of his employee s or applicants for employment . . . because he has opposed any prac tice made an unlawful employment practice by this subchapter, or becaus e he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. 42 U.S.C. § 2000e-3(a).

7 Actually, she was not the reporting pa rty, but did supply a statement.- 13 - Establishing a prima facie case requires a pl aintiff to show “(1) that he engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action.” Argo v. Blue Cross & Blue Shield of Kan., Inc. , 452 F.3d 1193, 1202 (10th Cir. 2006) (footnote om itted). “[T]he antiretaliation provision . . . is not limited to discriminatory actions that affect the terms and conditions of employment.” Burlington N. & Sant a Fe Ry. Co. v. White , 548 U.S. 53, 64 (2006). Instead, the plai ntiff must demonstrate a reasonable employee would have found the challenged action materially adve rse, which means “the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a char ge of discrimination.” Id. at 57. “A causal connection may be shown by evidence of circum stances that justify an infe rence of retaliatory motive, such as protected conduct closel y followed by adverse action.” O’Neal v. Ferguson
Constr. Co. , 237 F.3d 1248, 1253 (10th Cir. 2001) (quotation omitted). Standing alone, temporal proximity between the protected ac tivity and the retaliato ry conduct must be very close in time. Otherwise, “the plain tiff must offer additiona l evidence to establish causation.” Id. Cavalry argues KaRon’s retaliation claim mu st fail because she did not engage in a protected activity when she wrote her summar y of the Torres incident. It argues she did not initiate a complaint and the content of her statement did not notify Cavalry she was opposing an employment practice in viola tion of Title VII. KaRon claims it makes no difference whether she initiated the complaint against Torres. Because Cavalry does not- 14 - dispute it knew Torres made alle gedly racist remarks to KaRon in the presence of other employees, her report regarding the incide nt clearly opposed Torres’ conduct. KaRon is correct that she need not have initiated the complaint to management to come within the statute’s protection. In Crawford v. Metro. Gov’t. of Nashville & Davidson County, Tenn. , the Supreme Court held: [A] person can “oppose” by responding to someone else’s question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee wh o reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question. 129 S. Ct. 846, 851 (2009). However, she misperceives what co nstitutes an unlawful “employment practice.” A complaint of a si ngle racist remark by a colleague, without more, is not “opposition pr otected by Title VII.” Jordan v. Alternative Res., Corp. , 467 F.3d 378, 380 (4 th Cir. 2006). As the law stands, Title VII does not create a claim for every employee who complains about the pote ntial for Title VII violations or about other employees’ isolated racial slurs. It protects an employee who opposes ‘any practice made an unlawful employme nt practice,’ 42 U.S.C. § 2000e-3(a), or who ‘reasonably believes’ he is o pposing a practice made an unlawful practice by Title VII. Id. “The employer must know not on ly that the employee has opposed an action of the employer . . ., but that the opposition was based on a belief that the employer’s action constituted discrimination prohib ited by Title VII (here, racial or national-origin discrimination).” Zokari v. Gates , 561 F.3d 1076, 1081 (10th Cir. 2009) (emphasis added).
In Clark County Sch. Dist. v. Breeden , a female employee claimed retaliation after- 15 - she met with her male supervisor and anothe r male co-employee to review psychological reports for four job applicants. In one applic ant’s report, the applicant had stated to a coworker, “I hear making love to you is like ma king love to the Grand Canyon.” 532 U.S. 268, 269 (2001) (per curium). “The supervis or read the comment al oud, looked at the female employee and said, ‘I don’t know whatthat means.’ The other employee then said, ‘Well, I'll tell you late r,’ and both men chuckled.” Id. The female employee complained about the remarks to the supervisor and tw o assistant superintendents. Reversing the Ninth Circuit, the Supreme Cour t upheld the dismissa l of the employee's retaliation claim, concluding that “no one could reasonably belie ve that the incident . . . violated Title VII.” Id. at 270. The Court explained: “Title VII forbids ac tions taken on the basis of sex that ‘discriminate against any indi vidual with respect to his co mpensation, terms, conditions, or privileges of employment.’” Id. (quoting 42 U.S.C. § 2 000e-2(a)(1)). “Hence, a recurring point in [Supreme Court] opinions is that simple teasing, offhand comments, and isolated incidents (unless extremely se rious) will not amount to discriminatory changes in the terms and co nditions of employment.” Id. at 271 (quotations and alterations omitted). Thus, the Court “implicitly reject[ed] a ny interpretation of Title VII which would permit a plaintiff to maintain a retaliation clai m based on an unreasonable good-faith belief that the underlyi ng conduct violated Title VII.” Crumpacker v. Kan. Dep’t of Human Res. , 338 F.3d 1163, 1171 (10th Cir. 2003). “[T]he absence of a reference to unlawful discrimination . . . can preclude a retaliation claim because an employer cannot engage in unlawful retaliati on if it does not know that the employee has- 16 - opposed or is opposing a violation of Title VII.” Petersen v. Utah Dep't of Corr. , 301 F.3d 1182, 1188 (10th Cir. 2002). 8 No reasonable person could have believed that the single Torres incident violated Title VII’s standard. It is undisputed the employees’ reports, incl uding KaRon’s, do not claim Cavalry did anything wrong. They stat e a co-employee made a racial slur. In the words of the Fourth Circuit: “[N]othing in our ruling condones the contemptible comment made by the coworker in this case . . . . [But] co mplaining about an isolated racial slur is not oppositi on protected by Title VII.” Jordan , 467 F.3d at 380. Thus, KaRon failed to establish her prima facie retaliation case.
2. Disparate Treatment Title VII’s anti-discrimi nation provision states: It shall be an unlawful employment practice for an employer- (1) to fail or refuse to hire or to di scharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

8 See also Pope v. ESA Serv’s, Inc. , 406 F.3d 1001, 1010 (8th Cir. 2005) (in Title VII retaliation case, employee’s comments about the absence of black managers did not constitute protected activity because employee fa iled to attribute the absence of managers to racial discrimination); Trammel v. Simmons First Bank of Searcy , 345 F.3d 611, 615 (8th Cir. 2003) (ADEA plaintiff’s letter-wr iting campaign accusing employer of improper loan procedures was not protected activity be cause the letters were not written to oppose age discrimination); Freilich v. Upper Chesapeake Health, Inc. , 313 F.3d 205, 216-17 (4th Cir. 2002) (physician’s ADA retaliation claim failed because her opposition to her employer’s treatment of dialysis patients was based on violations of state medical malpractice law and not the ADA); Barber v. CSX Distrib. Serv’s. , 68 F.3d 694, 701 (3d Cir. 1995) (employee’s ADEA retaliation clai m failed because employee’s criticism of employer's selection of a less qualified, younge r applicant for a job, without specifically complaining about age discrimination, did not constitute protected conduct).- 17 - (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwis e adversely affect his status as an employee, because of su ch individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). In a disparate treatment case, the plaintiff must show “(1) that [s]he is a member of a racial minority, (2) that [s]he suffered an adverse em ployment action, and (3) that similarly situated employees were treated differently.” Trujillo v. Univ. of Colo. Health
Sciences Ctr. , 157 F.3d 1211, 1215 (10th Cir. 1998). 9 Cavalry argues KaRon failed to produce evidence that she suffe red an adverse employment action or similarly situated employees were treated differently. More over, she failed to demonstrate Cavalry’s

9 The evidentiary basis for the district court’s determin ation that KaRon presented sufficient evidence to establish her disparate treatment claim and pretext is hazy. After the hearing on the post-trial mo tions, the district court ora lly ruled it would rely on the reasons stated in its written order denying the motion for a directed verdict to hold “that based on the evidence adduced at trial a reasonable jury would have had a legally sufficient evidentiary basi s to find for the plaintiff with re spect to her claims of disparate treatment, hostile work environment and retalia tion.” (R. Vol. III at 1518.) The court then stated: “Certain of defendant’s explana tions given were such that I think plaintiff failed to show that some of those business reasons were pretextual . . . . So at least with respect to that one ACH . . . plaintiff failed to show that Ms. Bemore’s actions [reissuing the ACH] were pretextual. I don’t believe, tho ugh, that . . . . I heard a sufficient business reason given with respect to the low number of accounts and even if it is ultimately determined that the record doe s support that, I do believe that plaintiff adduced sufficient evidentiary support to show that the business reason for the low number of accounts was pretextual. Then we get into the temporal proximity and I think the record should reflect I remember many, many arguments about temporal proximity on the record here at trial.” ( Id. at 1518-19.) The court’s written order give s no rationale or examples from the evidence at trial explaining its denial of the directed verdic t other than stating the retaliation claim was supported by “the fact that she did . . . complain.” (R. Vol. I at 107.)- 18 - business reason for the number of her accounts was pretext. a) Adverse Employment Action “Only acts that constitute a significant ch ange in employment status, such as hiring, firing, failing to promote, rea ssignment with significantly different responsibilities, or a decision causing a significan t change in benefits will rise to the level of an adverse employment action.” Haynes v. Level 3 Commc’ns, LLC , 456 F.3d 1215, 1222 (10th Cir. 2006) (quota tion omitted). “While advers e employment actions extend beyond readily quantifiable losses, not everythi ng that makes an employee unhappy is an actionable adverse action. Otherwise, minor and even trivial employment actions . . . would form the basis of a discrimination suit.” MacKenzie v. City & County of Denver , 414 F.3d 1266, 1279 ( 10th Cir. 2005) (quotation omitted). KaRon asserts the evidence established three adverse employment actions: (1) Cavalry failed to promote her out of Academy Bay while promoting less qualified candidates; (2) she was given a lower number of accounts and/or lo wer quality accounts to prevent her from reaching her goals and receiving commissions; and (3) her commis sion rates were inappropriately lowered while she worked w ith Shaw’s team. (1) Failure to Promote KaRon introduced a report listing Acad emy Bay employees’ post-dated check amounts for an unspecified month. Although KaRon had the most checks and the largest amount of payments, several of the other employees on the report were moved from Academy Bay to a floor unit before KaRon. KaRon also introduced six “report cards” from September through December 2004. The report cards were issued daily to notify- 19 - the Academy Bay trainees of their progre ss. Each assessed KaRon as a “strong performer” and one classified her as an “elite” performer. (R. Vol. II at 668-69.) Orlando testified a Cavalry manager, Darrell Bunch, told him “[KaRon’s] the best collector in [Academy Bay]” a nd Bunch was trying to get he r on his team but Brown and Tipton said “she wasn’t ready” and “to pick someone else.” ( Id. at 891.) He also testified Bunch stated “[he di d not] know why they’re inten tionally holding her back.” ( Id. at 892.) Bemore testified a collecto r would graduate if her work was consistent and met five criteria in one month. The exact requireme nts were often modified but, at one point, the requirements included: (1) negotiate five payment arrangements; (2) negotiate five settlements; (3) complete thr ee ACH forms; (4) achieve 35% of the specialist’s monthly goal and average 150 calls daily; and (5) negotia te five post-dated accounts for at least $1,000 gross. Bemore agreed KaRon was focused, professional and “showing consistency.” ( Id. at 524.) She testified KaRon he lped train a newer employee, Kim Cooper, who graduated before KaRon. Wh en KaRon asked why Cooper graduated from Academy Bay, Bemore responded, “Kim must ha ve hit all of her criteria or she wouldn’t have graduated.” ( Id. at 522.) Bemore stated she thought KaRon met several of the criteria each month but did not “think that [KaR on] hit every single piece of the criteria.” ( Id. at 513.) Madewell testified management decided to retain some more experienced workers within Academy Bay so the floor managers would be assigned seas oned as well as new specialists. At least ten collectors were in Academy Bay when it closed at the end of- 20 - December 2004. Three of the collectors had been employed longer than KaRon -- Vince Brinkley, Judy Riley and Kathy Norton. Br inkley was listed as the number one Academy Bay employee on one of the report cards introduced by KaRon and number three on another. Riley was listed as number two. After careful review of the evidence, we must conclude KaRon failed to show she was treated differently than other employees in regards to her promotion or that the business reasons proffered by Ca valry were pretext. While KaRon demonstrated she was very successful in some aspects of her work , she simply did not prove she had met the graduation criteria in a single month. Ther e was no testimony or documentary evidence demonstrating other employees had graduated without mee ting all the criteria. In addition, KaRon’s exhibits demonstrated that equally qualified employees, such as Brinkley, also remained in Academy Bay th rough December 2004. Although Bunch told Orlando he believed Ka Ron was the best worker in Acad emy Bay, there is no evidence Bunch was involved with Acad emy Bay decisions or that he knew the relative abilities of all the Academy Bay employees. (2) Commission Rates KaRon claimed Cavalry’s discrimination ag ainst her also included the lowering of her commission rate after she had made a rrangements for payments. She introduced printouts of accounts in which her commission ra te was lowered from its original level. However, Mitchell and Bemore testified th ey too had commissions on paying accounts lowered; some were changed back but others were not. Bemore stated if the employee notifies his manager and there was a mistake, the rate was changed back. KaRon then- 21 - asked: “Have you ever heard of anyone at Cavalry other than myself have a commission rate changed and nobody change it back to th e previous commission rate?” (Vol. II at 502.) Bemore responded: “T o my knowledge, they’re supposed to be changed back . . . . As an employee now, I notify my direct repor t which is Andrew Brown and he sends an e-mail and then he gets back with me and then it’s rectified.” ( Id .) Mitchell and Brown reiterated commissions we re changed on paying deals and the employee must bring the problem to the atte ntion of a manager, who would then check with the Phoenix office to determine the reason for the change. KaRon presented no testimony that she requested Shaw investig ate a commission change and even KaRon’s questions did not imply she asked to have he r commissions reinstated to their original level. Moreover, many of the exhibits sh owing a decreased commission occurred while, according to Orlando, his wife was getting along well in Shaw’s unit. Thus, the jury was given no factual basis to re asonably conclude KaRon was tr eated differently than other similarly situated employees when her co mmission rate changed or that the business reason for the change was pretext. (3) Number and Quality of KaRon’s Accounts KaRon claimed she was given fewer and less workable accounts than others after the Torres incident. Vince Brinkley testifie d on one occasion, at some point in time, KaRon showed him she had only 79 accounts in her queue. Brinkley stated the number was not appropriate and he had no less than 800 to 900 accounts in his queue. Orlando recounted a manager’s meeti ng he attended when Bemore told Madewell KaRon did not- 22 - have any accounts. 10 When Orlando asked why, Madewell told him “well, I did it for a reason but I’ll talk to you about it later.” ( Id. at 887.) In addition, Orlando stated his wife had shown him accounts missing from he r queue with Bemore’s initials on them, implying Bemore somehow inappr opriately moved these accounts. Gregory Mitchell testified the Robinsons complained to him that KaRon was not treated fairly in the distribution of accou nts and Bemore was not properly scanning KaRon’s ACH accounts into the system. Mi tchell reported these complaints to Brown and Warren, but he did not recall what happened to the reports. KaRon submitted several prin touts showing the number of her accounts on four dates while she worked in Sh aw’s unit. The printouts sh owed: on January 28, 2005, KaRon had a total of 218 accounts; on January 31, 2005, a total of 191 accounts; on February 2, 2005, a total of 190 accounts; on February 3, 2005, a total of 147 accounts; and, on April 13, 2005, a total of 211 accounts. Mitchell test ified it would be possible for a specialist to hit her goal w ith these numbers but unlikely if the accounts were less than $500.00. Kari Kiger testified that when sh e worked with KaRon in Shaw’s unit, KaRon asked Shaw for more accounts because she only had 300. Ki ger said Cavalry managers had said “they could get [accounts] for [Kig er] personally” if she “didn’t have enough accounts.” (Vol. II at 861.) However, “to [K iger’s] knowledge” nothing was done about KaRon’s number of accounts. ( Id. at 858.)

10 One may wonder why Bemore woul d notify Madewell that KaRon needed more accounts if Bemore was deliberately reducing her accounts to insure KaRon’s failure.- 23 - KaRon also claimed Bemore discriminate d against her by returning unworkable accounts to her queue. KaRon submitted 52 pr intouts of her computer screen showing accounts she had “exhausted” as uncollectible which Bemore return ed to her queue to “rework” between the end of November through December 2004. Orlando testified that on “several” of those accounts “[t]here was no thing more that could be done with the account and they were given back to [KaRon]. There were bankruptcies that legally we cannot call, deceased accounts, people who are dead, you can’t collect[] from them because they are deceased.” ( Id. at 888.) Cavalry maintained the managers at the Tulsa office did not participate in the distribution of accounts. Brow n, Shaw, Madewell and Kiger all testified the number of new accounts for each specialist was de termined by the Phoenix office. 11 While Shaw stated he believed Warren had access to di stribute accounts “at one time,” he did not testify when this occurred. ( Id. at 716.) Orlando testifie d “at one particular time [disbursement] did get switched to Phoenix, but when I was there at one time this Tulsa office had control of distribution.” ( Id. at 896.) Neither Orlando nor Shaw testified Tulsa distributed the accounts from October 2004 through April 2005, the time period KaRon claims she was discriminated against. Testimony regarding wh o had the ability to transfer accounts after assignment was, at best, confusing. It is uncontested the managers could move accounts back to a specialist to rework. Madewell marked on e of KaRon’s accounts for “rework.” ( Id. at

11 Brinkley was unsure, but assumed th e Tulsa office dist ributed the accounts because “someone has to do it.” ( Id. at 853.)- 24 - 977.) Upper Tulsa management—Brown, Wa rren and Madewell—could also request more accounts from Phoenix for specialists. It appears at least one Tulsa employee could move an account upon request from upper ma nagement for the purpose of assigning related accounts or for other business reasons . It was uncontested the number of accounts in a queue could change daily or even within the same day. Specialists could exhaust an account or move it to the Spanish bin. 12 Affording every reasonabl e inference in favor of KaRon, the jury could reasonabl y believe, at least on certain dates, KaRon received fewer accounts than her colleagues b ecause upper management was no t acting as forcefully on her behalf as it did for other specialists. 13 The next question is whether KaRon provid ed evidence that th e managers’ failure to secure more accounts for KaRon altered th e terms and conditions of her employment. Orlando opined he never had less than 500 accounts and “unless you have an adequate number of accounts, you cannot h it your goal consistently . . . . [I]t’s impossible.” ( Id. at 882.) But KaRon did not submit evidence re garding her salary, the amount she made on commission or her ability to meet her monthly goals. She did produce disciplinary

12 By unilaterally moving an account to the Spanish bin, a specialist could artificially reduce the number of accounts in their queue.

13 KaRon would have us conclude that the fact the Phoenix office assigned the accounts “only serves to underscore the f act that upper management, including Todd Tipton of the Phoenix office, was in on th e decision to, together with Madewell and Bemore, intentionally discriminate against [K aRon].” (Appellee’s Response Br. at 38.) This conclusion would be base d solely on speculation. There is no evidence Phoenix management, other than Tipton in Human Re sources, knew about the Torres incident and no evidence Tipton had any connection to th e account distribution department. KaRon presented no evidence of conspiracy between the Tulsa and Phoenix offices.- 25 - reports of verbal warnings given to three other workers for failing to maintain their collections at an acceptable level but no simila r reports on her performance. In addition, KaRon presented no evidence showing the numb er of exhausted accounts returned to her queue were larger than the number returned to other empl oyees. Because KaRon failed to provide evidence that the number of acco unts in her queue changed the terms and conditions of her employment, she failed to submit evidence sufficient to establish her prima facie case.
3. Hostile Work Environment “[A] plaintiff may establis h a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment.” Meritor Savings Bank,
FSB v. Vinson , 477 U.S. 57, 66 (1986). A hostile work environment claim requires a plaintiff to show “that under the totality of the circumstances (1) the harassment was pervasive or severe enough to alter the term s, conditions, or privilege of employment, and (2) the harassment was racial or stemmed from racial animus.” Chavez v. New Mexico , 397 F.3d 826, 832 (10th Cir. 2005). Severity and pervasiveness ar e evaluated according to the totality of the circumstances, consid ering such factors as “the frequency of the discriminatory conduct; its severity; whether it is physically threatenin g or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Harris v. Forklift Sys., Inc. , 510 U.S. 17, 23 (1993); see also Harsco Corp. v. Renner , 475 F.3d 1179, 1187 (10t h Cir. 2007) (listing factors to be considered in determining whether environment is hostile or abusive). “Facially neutral abusive conduct can support a finding of . . . an imus sufficient to sustain a hostile work- 26 - environment claim when that conduct is viewed in the context of other, overtly [racially] discriminatory conduct.” O’Shea v. Yellow Tech. Serv’s. , 185 F.3d 1093, 1097 (10th Cir. 1999). “A plaintiff cannot meet this burden by demonstrating a few is olated incidents of racial enmity or sporadic racial slurs.” Chavez , 397 F.3d at 832 (q uotations omitted). KaRon claims there was no discrimination pr ior to the Torres incident but shortly thereafter she experienced a significant ch ange in the way she was treated by her supervisors. Looking at the period of time fr om October 21, 2004, through December 30, 2004, while KaRon was in Academy Bay, Vince Brinkley testified it seemed Bemore and KaRon were “okay” but “all of a sudden” there were “quite a few incidents.” (R. Vol. II at 852.) He said he “kind of felt” like Bemore treated KaRon more harshly than other employees and, on one occas ion, told KaRon to “s it down and shut up.” ( Id. at 841, 852.) In addition, Brinkley testified Madewell would not answer KaRon’s question at an employee meeting even after another empl oyee said “[KaRon] has a question.” ( Id. at 842.) Brinkley stated Madewell “made a refe rence to [KaRon] being stupid or something like that.” ( Id. ) KaRon claimed Bemore unfairly gave her a written disciplinary action on November 18, 2004. Brown explained he ca lled a meeting with KaRon on November 17, 2004, which Bemore and Warren attended. Bemore was told KaRon was taking her accounts to Orlando to work for her. At that time, the employe es on the floor had additional tools to work an a ccount that were unavailable in Academy Bay. Brown told KaRon she could not ask her husband to work her accounts. He separately told Orlando- 27 - he could do “a second talk-off,” 14 but could not work KaRon’s accounts as it would give her an unfair advantage. ( Id. at 1066.) After the meeting KaRon moved her worksp ace, which had been located next to Bemore’s, to another cubicle farther away from Bemore. The managers called KaRon back in because a work station could not be moved without advance permission. The meeting took place in a glass conference room which could be seen by other employees. During this meeting, KaRon became visibly ups et and left. She called her husband in tears and told him to bring her the keys in the break room. Orland o testified KaRon told him she had been “ambushed,” and to let Be more know she was outside and could not return to work. ( Id. at 874) Orlando testified he did so and Bemore “offered to clock her out.” The next day, Bemore gave KaRon a written reprima nd for moving her workstation without permission and for le aving work without notifying her supervisor. Bemore testified Cavalry’s policy required an employee to give notice directly to the supervisor before leaving early from work. In resp onse, KaRon submitted a report recounting an incident during Torres’s employment when To rres’s wife brought a note stating he was ill but Bemore did not reprimand Torres for failing to call. Kiger testified there were two instan ces when she heard negative comments regarding the Robinsons. The timing of these statements was not established. The first comment was made by an unidentified male empl oyee who continues to work at Cavalry.

14 Employees were encouraged to assist each other when a debtor was recalcitrant about payment. Often a second voice may be persuasive, “especially male versus female.” (Vol. II at 1066.)- 28 - Kiger stated he said, “I personally wouldn’t do that [inter-racial marriage] myself but if that makes them happy, good.” ( Id. at 859.) Kiger described the situation as follows: “[Y]ou know, otherwise he wasn’t condoning your relationship as you being married but he wasn’t going to say that it, he was suga r-coating it . . . I don’t know why he wouldn’t want you to be married, but for the type of jokes the person makes, I would say it would probably be racial.” ( Id. at 859-60.) Kiger also testified, “[a]t some point in time [Bemore made] a comment to [K iger] that [Kiger] felt was inappropriate due to [the Robinsons’] interracial relationship.” ( Id. at 861-62.) Kiger did not reveal what Bemore said nor did Kiger testify she re layed these comments to KaRon. KaRon was transferred to Shaw’s unit le ss than three months after the Torres incident and did not thereafter associate with Bemore. Kiger testified Shaw was occasionally unavailable, “condescending” a nd “overbearing” to KaRon but she never saw Shaw directly intimidate KaRon. ( Id. at 862.). Other employees also complained about Shaw’s supervision. Orlando tes tified Shaw was not “hostile” to KaRon “until towards the end.” ( Id. at 891.) He did not testify how Shaw was hostile. Even when viewing th ese circumstances with all favor able inferences to KaRon’s claims the evidence rev ealed, at most, an unpleasant wo rk environment. Bemore and Madewell were rude on one occasion. Bemo re, known as a harsh supervisor, picked on KaRon. However, on cross-examination, Orlando confirmed no one ever made a negative comment to him about the racial difference between him and his wife. He conceded he never complained that he felt like he was being treated unfairly because of his race and neither Bemore nor Madewell made any comments which would indicate- 29 - there was a problem with the fact he was ma rried to a white woman. It is further uncontested that neither KaRon nor her husb and told upper management or the human resources department that Ka Ron believed she was being di scriminated against because of her marriage. Without discriminatory overtones, discourte ous treatment is si mply not sufficient to impose liability under Title VII. See Chavez , 397 F.3d at 833. (“Title VII is not a code of workplace conduct . . . a hostile environm ent claim requires a showing not only of severe and pervasive harass ment, but of severe and pe rvasive harassment based on [race].”). While KaRon may ha ve believed Bemore was unfair, “this court’s obligation is not to mandate that certain individuals wo rk on their interpersonal skills and cease engaging in inter-departmen tal personality conflicts.” Somoza v. Univ. of Denver , 513 F.3d 1206, 1218 (10th Cir. 2008); see also MacKenzie , 414 F.3d at 1280 (courts “should filter out complaints attacking the ordi nary tribulations of the workplace”). 15

15 The jury’s conclusion to the contrary is not surprisi ng given KaRon’s questions and comments during the trial. KaRon did not testify, but instead accused the witnesses of discriminatory behavior in her questions, implying sh e had personal knowledge the Cavalry witnesses were lying when they denied the accusations. For example, the following colloquy took place during KaR on’s direct examination of Bemore: Q. [O]n November 17th, could you please explain to the jury what happened on that day? A. What day is that? Q. The day we had a one-on-one mee ting and you had told me that I wasn’t allowed to be seen or sp eak to my husband, even on breaks and lunches, because it made other people uncomfortable? A. I didn’t tell you that.- 30 - Because the evidence at tr ial failed to establish Ka Ron engaged in protected opposition to a discriminatory employment practice or that she suffered an adverse employment action, the district court erred in denying Cavalry’s requ est for judgment as a matter of law. In light of our ruling on the hostile work environment claim, we are confident that the district court was correct in not allowing Ms. Ro binson’s constructive discharge claim to go to the jury. Hall v. U.S. Dep’t of Labor , 476 F.3d 847, 851 (10th Cir. 2007) (“A constructive discharge claim based on a hostile work environment goes a step farther. An employee is constructively di scharged when the em ployer by his illegal discriminatory acts makes ‘working conditions so difficult that a re asonable person in the employee’s position would feel co mpelled to resign.’” (citing Sanchez v. Denver Pub. Schs. , 164 F.3d 527, 534 (10th Cir. 1998); see also Johnson v. Weld County, Colo. , No.

(R. Vol. II at 566-67.) During Shaw’s testimony: Q. Did you find it necessary to pu ll all married couples apart at the same time and put them in separate meetings? A. I didn’t pull any married couples apart. ( Id. at 735.). During Brown’s testimony she in ferred he was lying when he said Kiger had not come to him to relate deroga tory comments about her marriage. ( Id. at 677.) In fact, Kiger never testified she went to Brown. KaRon also asked Mitchell, “Did you ever tell anyone at Cavalry you were goin g to lie during your deposition?” ( Id. at 979.) These are just a few examples of the type of “testi mony” KaRon was able to present to the jury. While the court gave a proper cautiona ry instruction, the mere volume of allegations repeated in the questions (and not substantiated through testimony or other evidence) would have been nearly impossible fo r the jury to ignore. In fact, no evidence of damages was presented at the first tr ial other than one comment made as an afterthought in KaRon’s closing. She stated, “I forgot this earlier but the back pay that is owed to me after what I made in Nevada is $158,000 for the past two years.” ( Id. at 1118). No other evid ence was presented at trial. The jury awarded her $150,001.- 31 - 08-1365, Slip. Op. at 26 n.6 (10th Cir. Feb. 8, 2010) (“Because Ms. Johnson’s facts fail to meet the threshold required for a retalia tion claim — a material adverse harm — it follows that those same facts cannot satis fy the higher threshold required for a constructive discharge claim.”) Given our co nclusion, we deem the remaining issues on appeal moot. REVERSED and REMANDED for entry of judgment in accordance with this order. Entered by the Court: Terrence L. O’Brien United States Circuit Judge