## F I L E D United States Court of Appeals Tenth Circuit 

### October 25, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOHN COUTURE,

Plaintiff - Appellant,

v. No. 04-1397 BELLE BONFILS MEMORIAL BLOOD CENTER, Defendant - Appellee. (D. Colorado) (D.C. No. 02-RB-2319 (OES))

----------------------------------------- AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF COLORADO; AIDS ALLIANCE FOR CHILDREN, YOUTH AND FAMILIES; ASSOCIATION OF NURSES IN AIDS CARE; BOULDER COUNTY AIDS PROJECT; NORTHERN COLORADO AIDS PROJECT; WHITMAN-WALKER CLINIC; AMERICAN ACADEMY OF HIV MEDICINE; INTERNATIONAL ASSOCIATION OF PHYSICIANS IN AIDS CARE; NATIONAL ASSOCIATION OF PEOPLE WITH AIDS; WESTERN COLORADO AIDS PROJECT; WOMEN’S LIGHTHOUSE PROJECT; TRAINING AND ADVOCACY SUPPORT CENTER; NATIONAL EMPLOYMENT LAWYERS ASSOCIATION; COLORADO CROSS DISABILITY COALITION; CENTER’S LEGAL INITIATIVES PROJECT; AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES; and AMERICA’S BLOOD CENTERS

Amici Curiae.* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

1 Couture does not argue on appeal that the district court erred in granting summary judgment to Bonfils on his common law claim s. We accordingly conclude he has waived any argument concerning thos e claims. -2- ORDER AND JUDGMENT *

Before BRISCOE , ANDERSON , and O’BRIEN , Circuit Judges.

John Couture appeals the district court’s order denying his motion for partial summary judgment and granting defendant Bon fils Memorial Blood Center’s motion for summary judgment. That order d isposed of all of Couture’s claims under the Americans with Disabilities Act (“ ADA”), 42 U.S.C. §§ 12101- 213, and the Colorado Anti-Discrimination Act (“CAD A”), Colo. Rev. Stat. § 24-34-402, as well as his Colorado common law cla ims of promissory estoppel and outrageous conduct. 1 We affirm.

BACKGROUND Bonfils is a nonprofit corporation and Colorado’s o nly community blood center. In July 2001, Couture learned that Bonfils had openings for2 Bonfils summarizes the duties of a donor technicianas follows: “register,

interview, screen and select potential donors; perf orm sample and whole blood collections; provide donor care; and conduct equipm ent quality control while delivering excellent customer service and adhering to company standards.” Appellant’s App. at 368. -3- phlebotomists, individuals who draw blood from bloo d donors. Although he had no experience in the medical field, Couture submitt ed an application to become a donor technician, an individual whose primary duty was to perform all aspects of phlebotomy on donors wishing to give blood to Bonfils. 2 Bonfils hired Couture. On his first day of work, A ugust 6, 2001, Couture filled out a “Post Employment Employee Profile” on which he responded “no” to the question of whether he was “disabled.” After c ompleting the orientation session for all new Bonfils employees, Couture embarked on phlebotomy training with all other newly hired donor technicians. On August 20, 2001, as Couture and his fellow train ees were preparing to practice drawing blood from each other, Couture tol d Dwayne Chavez, Bonfils’ Collections Trainer, that he was HIV-positive. With Couture’s permission, Chavez informed Karen McBreen, the Director of Comm unity Donor Operations, and Anne Rooney McCord, the Vice President of HumanResources, of Couture’s

status. Over the next three days, McCord met several times privately with Couture and consulted with Bonfils’ Medical Director, Dr. W illiam Dickey. Dr. Dickey3 There was some confusion in the terminology used to describe some of the

other available positions. -4- determined that Couture could no longer continue hi s phlebotomy training because he was HIV-positive. Dr. Dickey testified that he “thought it was inappropriate to terminate [Couture]” and that he “ encouraged [McCord] to find something [else at Bonfils].” Dickey Dep., Appellant’s App. at 156. He further testified that he and McCord agreed that “[t]he pay should be something comparable” in terms of “pay and benefits” at any other position at Bonfils. Id. McCord testified that, when she met with Couture, C outure “said that maybe this position wasn’t a good fit, and were the re other positions that he could do in the company?” McCord Dep., id. at 191-92. She further testified that she “printed out a copy of openings on [Bonfils’] Web site.” Id. at 192. They “specifically talked about the community relations representative in Boulder and the laboratory production tech” positions. Id. 3 McCord told Couture that he was “the type of person that [they] wanted to have as a n employee and that [they] hoped that [they] could come up with something that would meet his needs.” Id.
at 193. The next day, Couture met with McCord to further di scuss these other positions. McCord testified that Couture “said that he was very appreciative . . . [that] it had been handled professionally and respectfully.” Id. at 194. However,-5-

Couture “had thought about it overnight. He reallyconsidered it, and he really wanted to be a phlebotomist, and that he would take the precautions necessary.” Id. McCord testified that she told him she would disc uss the situation again with Dr. Dickey and “get back to him.” Id. McCord met again with Dr. Dickey, who said that he was not “comfortable” with Couture continuing to train for the donor tech nician position but “that . . . he certainly, absolutely supported finding a position for [Couture] in the organization.” Id. Accordingly, McCord met again with Couture and “t old him that those positions that [they] had talked about t he day before, [she would] be happy to set up some interviews for him and that [s he would] . . . pay him for his time over that day and the next day to get . . . so me interviews done and see if there was a position that he was interested in.” Id. at 196. Couture interviewed for the position of product man agement technician, one of the available jobs he and McCord had discuss ed. Following the interview, he told McCord he “would try it.” Couture Dep., id. at 357. Couture testified that the base pay rate was the same for the product mana gement technician position and the donor technician position. Id. at 355. McCord testified that, in considering the product management technician posit ion for Couture, she “wanted him to be financially whole, however that occurred. ” McCord Dep., Appellee’s Supp. App. at SA24. Couture likewise testified that McCord told him that the-6-

“laboratory position that [he] was applying for hada lower rate of pay than the community blood drive phlebotomist, but she said sh e was willing to . . . compensate [him] so there would be not that much di fference between the two salaries.” Couture Dep., Appellant’s App. at 354. McCord further testified that Couture thought “thatthe advancement opportunities as a donor tech were greater than tho se he could hope for” in the product management technician position. McCord Dep., id. at 197. However, she stated that Bonfils was “going through some sig nificant restructuring” and that “they were designing a system to have more opp ortunity for advancement” in the management technician position. Id. In comparing the two positions, she stated that the donor technician position “had more interaction with donors” whereas the “product management tech position had m ore interaction with the customers in our hospitals.” Id. Couture began training for the product management t echnician position on Monday, August 27. On Thursday, August 30, he “pun ched in for 5 or 10 minutes” and then left. Couture Dep., id. at 221. Later that morning, he left a voicemail message for McCord indicating that “[he] appreciate[d] the job offer, but this wasn’t what [he] was looking for.” Id. He explained that the job “just wasn’t a good fit. [He] just wasn’t happy doing the tasks assigned to [him].” Id. at 220. He further stated he “just chose not to [d o the job], because [he] was just-7-

unhappy.” Id. Couture also testified that he thought the “opportunity for advancement” was better with the donor technician job, id. , and that he preferred that position because it involved “local travel” an d he “could wear scrubs that were Bonfils-provided.” Id. Still later that day, McCord called him and “said t hat she was sorry to lose [him] as an employee; that in the brief time that [ he] was there, [he] exhibited qualities that Bonfils was looking for,” and that “ she would continue to keep her eyes open for positions that [he] was qualified for.” Id. at 335. On September 11, 2001, McCord drafted, but apparent ly never sent, a letter to Couture, stating that she was “disappointed that[he] chose not to stay with the company,” and inviting him to let her know if there were other positions at Bonfils “[he] would like to be considered for.” Id. at 398. In October 2001, Bonfils’ counsel sent a letter to Couture stating i ts “unqualified willingness (and desire) to reinstate [Couture] in the last position he held.” Id. at 401. After receiving, at his request, a notice of right to sue from the Equal Employment Opportunity Commission, Couture filed th is action. After both parties filed motions for summary judgment, the dis trict court granted Bonfils’ motion and dismissed all of Couture’s claims. This appeal followed. Couture argues the district court erred when it granted sum mary judgment to Bonfils on the ground that Couture suffered no adverse employm ent action when Bonfils told-8-

him he could no longer continue training for the do nor technician job, but could train for the product management technician job. H e further argues the district court should have denied summary judgment for Bonfi ls, and granted his motion for partial summary judgment, on the grounds that: (1) Bonfils regarded Couture as disabled, Couture is in fact disabled, and Bonfi ls terminated him from the donor technician position because of that disability, in violation of the ADA and the CADA; and (2) Bonfils failed to conduct an indi vidualized inquiry into whether Couture could safely perform the donor tech nician job, and Couture presented undisputed evidence that he could performit safely, thereby refuting Bonfils’ claim that Couture presented a direct thre at to the safety of others.

DISCUSSION We review the grant of summary judgment de novo, ap plying the same standard as did the district court. MacKenzie v. City & County of Denver , 414 F.3d 1266, 1273 (10th Cir. 2005). “Summary judgment is appropriate if there are no genuine issues of material fact and the movant i s entitled to judgment as a matter of law.” Id. Further, we review the record and any reasonable inferences therefrom in the light most favorable to the nonmoving party. Id. The ADA provides that: No covered entity shall discriminate against a qual ified individual with a disability because of the disability of such individual in regard-9-

to job application procedures, the hiring, advancem ent, or discharge of employees, employee compensation, job training, and other terms conditions, and privileges of employment. 42 U.S.C. § 12112(a). The CADA similarly prohibits an employer from discriminating on the basis of disability against an otherwise qualified individual. Colo. Rev. Stat. § 24-34-402(a). “To establish a p rima facie case of disability discrimination under the [ADA], a plaintiff must sh ow that (1) [he] is disabled within the meaning of the ADA; (2) [he] is qualifie d for [his] employment position; and (3) the defendant discriminated again st [him] because of [his] disability.” Doebele v. Sprint/United Mgmt. Co. , 342 F.3d 1117, 1128 (10th Cir. 2003). Under both the ADA and the CADA, a plaintif f must show that he suffered an “adverse employment action” as part of his prima facie case. See Meiners v. Univ. of Kan. , 359 F.3d 1222,1228-29 (10th Cir. 2004); Lawley v. Dep’t of Higher Educ. , 36 P.3d 1239, 1247 (Colo. 2001) (en banc). The district court granted summary judgment to Bonf ils, concluding that Couture had suffered no adverse employment action w hen he was reassigned from the donor technician position to the product manage ment technician position because Couture’s “mere dissatisfaction with the al ternative job is not sufficient to transform the transfer into an adverse employment action.” Order at 5, Appellant’s App. at 147. The court accordingly didnot reach the remaining-10-

issues. We agree with the district court that Cout ure’s failure to demonstrate that he suffered an adverse employment action is fatal t o his claims. The Supreme Court has stated that employer conduc t is adverse employment action if it “constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassig nment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth , 524 U.S. 742, 761 (1998). Our circuit “liberally defines the phrase ‘adverse employment action.’” Sanchez v. Denver Pub. Schs. , 164 F.3d 527, 532 (10th Cir. 1998). It is “not s imply limited to monetary losses in the form of wages or benefits. Instead, we take ‘a case-bycase approach,’ examining the unique factors releva nt to the situation at hand.” Id. (citation omitted). “One factor that strongly ind icates a challenged action is an ‘adverse employment action’ is that the action c auses ‘harm to future employment prospects.’” Hillig v. Rumsfeld , 381 F.3d 1028, 1031 (10th Cir. 2004) (quoting Berry v. Stevinson Chevrolet , 74 F.3d 980, 986-87 (10th Cir. 1996)). However, “we will not consider ‘a mere inconvenienc e or an alteration of job responsibilities’ to be an adverse employment action.” Sanchez , 164 F.3d at 532 (quoting Crady v. Liberty Nat’l Bank-Trust Co. , 993 F.2d 132, 136 (7th Cir. 1993)). We have similarly stated that “not everyth ing that makes an employee-11-

unhappy is an actionable adverse action. Otherwise , minor and even trivial employment actions that an irritable, chip-on-the-s houlder employee did not like would form the basis of a discrimination suit.” Mackenzie , 414 F.3d at 1279 (quoting Smart v. Ball State Univ. , 89 F.3d 437, 441 (7th Cir. 1996)); see also James v. Booz-Allen & Hamilton, Inc. , 368 F.3d 371, 377 (4th Cir. 2004) (holding that “an employee’s dissatisfaction with this or that aspect of work does not mean an employer has committed an actionable ad verse action”). In this case, Couture concedes that the base pay rate was the same in the product management technician position as in the do nor technician position. He asserts that he would have had more opportunity to earn extra pay at the donor technician job. However, he has not alleged with a ny specificity the degree to which he would be entitled to such extra pay. “Uns upported conclusory allegations . . . do not create an issue of fact.” MacKenzie , 414 F.3d at 1273. Furthermore, McCord testified that Bonfils was unde rgoing a restructuring that would have created more opportunities to earn simil ar shift differentials at the product management technician job. Couture also alleges that the product management te chnician job was less interesting and involved less contact with donors and less local travel. He testified that he “just wasn’t happy doing the task s assigned to [him],” and that the job “wasn’t what [he] was looking for.” Coutur e Dep., Appellant’s App. at4 Couture also attempts to cast his reassignment as a“firing” from his job as

a donor technician and “rehiring” at the product ma nagement technician position. However, it is undisputed that he continued to be p aid the entire time he worked at Bonfils and that Bonfils management engaged in a n ongoing dialogue with him in an attempt to find another job to which he could be reassigned. Thus, we reject his argument that Bonfils “terminated” him and then “rehired” him. -12- 220-21. Mere dissatisfaction with the job to whichan ADA plaintiff has been reassigned is insufficient to establish that the re assignment constituted an adverse employment action. Nor does Couture contest the fa ct, set out above, that he was offered other jobs at Bonfils, including the job of community relations representative in Boulder, where he would directly interact with the public and be the “face” of Bonfils in the community. While reas signment to an undesirable job may constitute an adverse employment action, reassi gnment to one which is simply undesired by the plaintiff is not. 4 Couture places great reliance upon our decision in Hillig , in which we reiterated our policy of “liberally defin[ing]” the phrase “adverse employment action,” Hillig , 381 F.3d at 1031, and indicated it is not necessa rily limited to a “tangible employment action” such as “‘hiring, firi ng, failing to promote, reassignment with significantly different responsib ilities, or a decision causing a significant change in benefits.’” Id. (quoting Burlington Indus. , 524 U.S. at 761). However, we also acknowledged that a plaintiff clai ming a reassignment was an adverse employment action must show more “than a re quirement to develop new-13-

skills.” Id. at 1033 (discussing Tran v. Trs. of State Colls. , 355 F.3d 1263, 1268 (10th Cir. 2004)). Moreover, in Hillig itself, the plaintiff demonstrated a “harm to future employment prospects” by showing that sev erely negative job references harmed her prospects of future employment. Id. at 1035. Nothing about Couture’s reassignment to the product management te chnician position could conceivably hurt his future employment prospects. Hillig accordingly does not compel the conclusion that Couture suffered an adve rse employment action. In sum, as the district court found, Couture was me rely dissatisfied with his new position. That alone is insufficient to establ ish that he experienced an adverse employment action.5 Couture has filed a motion to strike portions of Ap pellee’s supplemental

appendix on various grounds. The motion has been r eferred to this panel. At the heart of the motion to strike lies a dispute about whether certain materials contained in the supplemental appendix were before the district court. For example, the parties disagree on whether certain pa ges from McCord’s deposition testimony, which we quote infra , were before the court. That very language was in fact quoted to the district court, without objec tion by Couture, in Bonfils’ motion for summary judgment. We are unconvinced th at these materials were not fully before the court. We therefore deny the moti on to strike. -14- CONCLUSION For the foregoing reasons, we AFFIRM the district c ourt’s grant of summary judgment to Bonfils. 5
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge