UNITED STATES COURT OF APPEALS TENTH CIRCUIT

BOBBY ESPINOZA, Plaintiff - Appellant,

v. DEPARTMENT OF CORRECTIONS, Defendant - Appellee. No. 12-1009 (D.C. No. 1:10-CV -00548-CMA-KLM) (D. Colo.)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Judge, GORSUCH and MATHESON , Circuit Judges.
In 2010, Bobby Espinoza su ed the Colorado Department of Corrections (“DOC”) for retaliation under Title VII of the Civil Rights Act of 1964. The DOC moved for and was granted summary judgment. Mr. Espinoza appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 12 91, we affirm.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral es toppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10 th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### February 4, 2013
Elisabeth A. Shumaker Clerk of Court-2- I. BACKGROUND
A. Factual History Mr. Espinoza, who is Hispanic, was hired as a DOC correctional officer in 2004. In April 2007, he was promoted to sergean t, a position also known as “Correctional Officer II.” This promotion was subject to a six-month trial period before Mr. Espinoza would be certified as a sergea nt. His position was located at the Colorado Territorial Correctional Facility (“CTCF”).
1. Mr. Espinoza’s Work Absence and Discipline On June 22, 2007, a few months into his trial period, Mr. Espinoza called a superior and reported he w ould be unable to work his upcoming graveyard shift. His absence was designated sick leave. 1 The following day was Mr. Espinoza’s scheduled day off. Mr. Espinoza’s supervisor, Captai n Gary Moroney, who is white, 2 drafted a “Performance Document” describing the eff ect of Mr. Espinoza’s absence. The Performance Document states that Mr. Espino za’s absence “caused the facility to drop below minimum staffing” and required other office rs to cover his shift. Appx. at 98. It further states Mr. Espinoza had “two days off instead of one ,” that he “should be setting

1 According to Mr. Espinoza, he was ab sent from work because his son was involved in a car accident.

2 Mr. Espinoza believed that Capt. Morone y discriminated against him because he is Hispanic. We refer to Capt. Morone y and other non-Hispanic whites who were involved in this ma tter as “white.”-3- positive accountability/org anizational commitment examples,” and that his absence “reflected a very bad example and sen[t] a very negative message to supervisors and subordinates alike about [h is] leadership skills.” Id.
2. Meetings with Captain Moroney On June 27, 2007, Mr. Espinoza met with Capt. Moroney and discussed the Performance Document. The DOC asserts Mr. Es pinoza grew angry at the meeting. Mr. Espinoza recalls that he was not angry and that Capt. Moroney be came aggressive and verbally hostile. Mr. Espinoza refused to sign the Performance Document. He also admits he told Capt. Moroney that the Performance Document was “chicken shit.” Id. at 201. Capt. Moroney prepared a report recounting Mr. Espi noza’s work absence, his “chicken shit” comment, and his refusal to sign the Performance Document. On July 2, 2007, Mr. Espino za again met with Capt. Moroney. Also present were Major Linda Maifeld, who is white, and A ssociate Warden Michel Arellano, who is Hispanic. Associate Warden Arellano began the meeting with introductory remarks and left. The parties dispute the tone of the rest of the meeting. But it is undisputed that while Capt. Moroney described hi s version of what happened at the June 27 meeting, Mr. Espinoza interrupted him, pointed his finger at him, and accused him of “lying through his teeth.” Id. at 115.-4- The meeting ended abruptly, and Major Ma ifeld and Capt. Moroney escorted Mr. Espinoza from CTCF. While in the parking lot, Mr. Espinoza refused Major Maifeld’s request to return to the build ing to complete paperwork.
3. Allegation of Discrimination and Corrective Action The next day, July 3, 2007, Mr. Espino za met with a union representative and Associate Warden Arellano. According to Mr. Espinoza, at this meeting he told Associate Warden Arellano that Capt. Moro ney had discriminate d against him on the basis of his race, and Associate Warden Are llano “acknowledged that cultural differences existed at CTCF.” Id. at 255. 3 Mr. Espinoza’s complaint of racial discrimination at this meeting forms the basis of his Title VII retaliation claim. Almost two weeks later, on Ju ly 16, 2007, Mr. Espinoza wa s called to the office of Warden James Abbott, who is black. Ward en Abbott issued Mr. Espinoza a written reprimand called a “Corrective Action.” The document recounts Mr. Espinoza’s “chicken shit” comment to Capt. Moroney on June 27 and his “extremely insubordinate” behavior during the meeting with Major Maifeld and Capt. Moroney on July 2. Id. at 127. It states these actions constituted “condu ct unbecoming of an officer and disrespect

3 According to Associate Warden Arellano, Mr. Espi noza never alleged racial discrimination at this meeting. Associ ate Warden Arellano recalls referring to “correctional cultures,” not “cultural differences.” Appx. at 371. Nonetheless, in reviewing a grant of summa ry judgment, this court views the facts presented in the light most favorable to the no nmoving party, in this case Mr. Espinoza. See Brown v. ScriptPro, LLC , 700 F.3d 1222, 1224 (10th Ci r. 2012). For the purposes of this appeal, the DOC does not dispute that at the July 3, 2007 meeting, Mr. Espinoza complained that Capt. Moroney treated hi m differently because he is Hispanic.-5- towards [his] supervisors . . . in direct viol ation of [DOC regulation] AR 1450-1, Staff Code of Conduct.” Id. The Corrective Action require d Mr. Espinoza to complete four tasks: submit a report to Capt. Moroney on the meaning and importance of DOC regulation AR 1450-1; attend training on professiona lism and unlawful discrimina tion/sexual harassment; submit a report on a “Self Discipline and Emotiona l Control” video to Capt. Moroney; and submit a written apology to Capt . Moroney conc erning his behavior at the June 27 and July 2 meetings. The Correctiv e Action warned that “[i]f this type of behavior happens again, there will be a Corrective or Disciplinary Action.” Id.
B. Procedural History
1. Investigation and Grievance Process On July 23, 2007, Mr. Espi noza filed a complaint with the DOC’s Office of the Inspector General (the “OIG”) that he ha d “been subjected to an abusive, hostile, demeaning and discriminato ry work environment.” Id. at 131. The OIG conducted a formal investigation into his allegations a nd completed an investigative summary (“OIG report”). 4 Between July 23 and November 2, 2007 , Mr. Espinoza sought and obtained relief from the Corrective Action by filing grievanc es with DOC officials. Mr. Espinoza secured the following relief: removal of th e Performance Document and the Corrective

4 The record does not include the conclusions of the OIG report.-6- Action from his personnel file; a promise to “e nd . . . the abusive, retaliatory and hostile work environment if it occurred,” id. at 151; and reinstatement of 184 hours of his leave time. As a result of the grievance process, he was never required to perform any of the tasks listed in the Corrective Action. Also du ring this period, Mr. Espinoza’s promotion to sergeant was certified, and he was transfer red to another facility at his request. Prison officials denied Mr. Espinoza’s re quests for attorney fees and medical expenses incurred in grieving the Corrective Ac tion, as well as reinstatement of all leave taken during the grievance process. Mr. Es pinoza appealed the denial of the remaining requested relief to the Colorado State Pers onnel Board, which denied his petition for a hearing.
2. District Court After securing a right-to-sue letter fro m the Equal Employment Opportunity Commission, Mr. Espinoza sued the DOC in fede ral district court for retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3. His complaint alleged that Warden Abbott i ssued the Corrective Action in re taliation for his complaint that Capt. Moroney had engaged in racial di scrimination. Mr. Espinoza requested compensatory damages under 42 U.S.C. § 1981a, as well as co sts and attorney fees. The DOC successfully moved fo r summary judgment. The district court held that Mr. Espinoza had failed to establish two elem ents of a prima facie case of Title VII retaliation: (1) that he engaged in protected opposition to discrimination, and (2) that he-7- suffered an adverse employment action that a reasonable employ ee would have found material.
II. DISCUSSION Mr. Espinoza challenges the district c ourt’s summary judgment dismissal of his Title VII retaliation claim. We review the di strict court’s grant of summary judgment de

novo. Fye v. Okla. Corp. Comm’n , 516 F.3d 1217, 1222 (10t h Cir. 2008). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ .P. 56(a). “A dispute is genuine if there is suffi cient evidence so that a rational trier of fact could resolve the issue either way.” Crowe v. ADT Sec. Servs., Inc. , 649 F.3d 1189, 1194 (10th Cir. 2011) (quotations omitted). In revi ewing the record, “[w] e view all evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.” Fye , 516 F.3d at 1223.
A. Burden-Shifting Framework Mr. Espinoza agrees that, because he lacks direct evidence of retaliation, his claim is subject to the three-part framework established in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). Through this burde n-shifting framework, Mr. Espinoza may indirectly prove that retaliation played a motiv ating part in the issu ance of the Corrective Action. See Twigg v. Hawker Beechcraft Corp. , 659 F.3d 987, 998 (10th Cir. 2011); Somoza v. Univ. of Denver , 513 F.3d 1206, 1211 (10th Cir. 2008). Under McDonnell Douglas , Mr. Espinoza first must present a prima facie case of-8- retaliation. See Stover v. Martinez , 382 F.3d 1064, 1070 (10th Cir. 2004). This step requires him to show (1) he engaged in protected opposition to discrimination; (2) he suffered an action that a reasonable employee would have found mate rially adverse; and (3) there was a causal nexus between the opposition to di scrimination and the adverse action. See Williams v. W.D. Sports, N.M., Inc ., 497 F.3d 1079, 10 86 (10th Cir. 2007); see also Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 67-68 (2006). In this appeal, only the first two elements of a prim a facie case of retaliation are at issue. If Mr. Espinoza presents a prima facie case of retaliation, the burden shifts under the second McDonnell Douglas step to the DOC “to produce a legitimate, nondiscriminatory justification for ta king the disputed employment action.” Stover , 382 F.3d at 1071. Finally, if th e DOC satisfies this burden, th e burden shifts back to Mr. Espinoza to demonstrate that the DOC’s assert ed reasons for his discipline are a pretext for retaliation. See Fye , 516 F.3d at 1227; Stover , 382 F.3d at 1071. The district court used alternative grounds to grant the DOC’s motion for summary judgment. The court de termined that Mr. Espinoza failed to make out either of the first two elements of a prima facie case of retaliation. We may affirm the district court’s ruling on any basis apparent in the record. See Seegmiller v. LaVerkin City , 528 F.3d 762, 766 (10th Cir. 2008). As discussed below, we affirm the distri ct court’s determination that Mr. Espinoza failed to raise a genuine dispute of materi al fact regarding whether he engaged in protected opposition to discrimination.-9- B. Protected Opposition to Discrimination
1. Reasonable Good-Faith Belief Standard Title 42 U.S.C. § 2000e-3(a) prohibits an employer from retaliating against an employee because the employee “opposed any practice made an unlawful employment practice by [Title VII].” Thus, the threshold element of a pr ima facie case of retaliation requires the employee to show he opposed a perceived violation of Title VII, such as employer discrimination. See Antonio v. Sygma Network, Inc ., 458 F.3d 1177, 1181 (10th Cir. 2006). An employee’s “[p]rotect ed opposition can range from filing formal charges to voicing informal complaints to superiors.” Hertz v. Luzenac Am., Inc. , 370 F.3d 1014, 1015 (10th Cir. 2004). To demonstrate protected opposition to discrimination, the employee must show “he had a reasonable good-faith belief that th e opposed behavior was discriminatory.” Id. at 1016; see Bd. of Cnty. Comm’rs v. E.E.O.C. , 405 F.3d 840, 852 (10th Cir. 2005). This standard has subjective a nd objective components. Little v. United Tech., Carrier Transicold Div. , 103 F.3d 956, 960 (11th Cir. 1997); see also Crumpacker v. Kan. Dep’t of Human Res. , 338 F.3d 1163, 1171 (10th Cir. 2003) (holding that a plaintiff cannot maintain a retaliation claim based on an “ unreasonable subjective good-faith belief that the opposed conduct violated Title VII” (em phasis added)). “A pl aintiff must not only show that he subjectively (that is, in good faith) believed that his employer was engaged in unlawful employment practices, but also that his belief was objectively reasonable in light of the facts and record presented.” Little , 103 F.3d at 960.-10- The reasonable good-faith belief standard “empowers employees to report what they reasonably believe is discriminato ry conduct without fear of reprisal,” Bd. of Cnty

. Comm’rs , 405 F.3d at 852, and does not require th at the plaintiff “con vince the jury that his employer . . . actually discriminated against him,” Hertz , 370 F.3d at 1015-16; see also Crumpacker , 338 F.3d at 1171 n.5 (10th Cir. 2 003). The employee’s complaint of discrimination may constitute pr otected opposition even if it is mistaken, so long as the belief that discrimination occurred was objec tively reasonable and made in good faith. See Love v. RE/MAX of Am., Inc. , 738 F.2d 383, 385 (10th Cir. 1984).
2. Mr. Espinoza’s Compla int of Discrimination It is undisputed for purposes of appeal th at at the July 3, 2007 meeting, Mr. Espinoza complained to Associate Warden Arellano that Capt. Moroney discriminated against him because of his race. We also assume without deciding that Mr. Espinoza presented evidence that he had a subjective

— i.e., good-faith

— belief that he experienced discrimination. 5 The issue is whether Mr. Espino za presented evidence that, when viewed in the light most favorable to him, indicates it was objectively reasonable for him to believe that Capt. Moroney discrimina ted against him on the basis of race. Mr. Espinoza argues that he “had a multitude [of] data points” that led him to reasonably believe he experience d discrimination. Aplt. Br. at 37. These “data points” include the following: (a) Capt. Morone y did not discipline white sergeants who

5 The DOC in its brief concentrates on the objective reasonableness of Mr. Espinoza’s belief that he experienced discrimination.-11- canceled their shifts; (b) he witnessed Capt. Moroney mistreat a black employee; (c) he heard rumors that Hispanic employees were segregated together in one CTCF cell house; and (d) Associate Warden Arellano was unsurp rised by his complaint of discrimination and said “cultural differences existed at CTCF ,” Appx. at 255. In addressing these four arguments, we are mindful that “[a]lthough ou r review of the record is de novo, we conduct that review from the perspective of the district court at the time it made its [summary judgment] ruling, ordinarily limiti ng our review to the materials adequately brought to the attention of the district court by the parties.” Fye , 516 F.3d at 1223 (quotations omitted).

a. Different Treatment of White Sergeants Mr. Espinoza first argues that he had an objectively reasonable belief that he experienced discrimination because two white sergeants had “called off” work without being disciplined, whereas he was disciplined for calling in to mi ss work. Aplt. Br. at 28. In the district court, Mr. Espinoza cited only to his affidavit to support his belief that the other sergeants had been treated diffe rently. He averred, “I believed that Capt. Moroney discrimi nated against me because I was Hisp anic because I was singled out for calling off when I knew of other non-Hispanic employees [who] had called in to cancel their shift without proble ms.” Appx. at 255. The DOC responded by citing to Mr. Espinoza’s deposition testimony. He testified that he “had to cover for two [white ] sergeants that called off [one] day.” Appx. at 359. When asked whether he knew the reason the sergeants called off, Mr. Espinoza-12- responded, “No, sir, I don’t.” Id. at 360. When asked if he knew whether the sergeants had scheduled their leave in advanc e, he responded, “No, sir.” Id. He then was asked whether he had “any reason to believe that [t heir absences were not] scheduled ahead of time.” Id. He replied, “I don’t know.” Id. This was the entirety of the information about the sergeants that the parties presented to the district court. The question is whether this evidence raises a genuine dispute of material fact about whether Mr. Espinoza had an objectivel y reasonable belief that the white sergeants were treated differently from him on the basi s of race. To form such a belief, Mr. Espinoza would have had to know something ab out whether the sergeants’ absences were similar to his. Mr. Espinoza argues the serg eants’ absences were similar to his because (i) he and the sergeants calle d off work; (ii) at least one sergeant took leave in conjunction with a scheduled da y off, as Mr. Espinoza did; and (iii) all their absences required others to cover their shifts. We address these points in turn. i. Calling Off Work Mr. Espinoza’s affidavit suggests that his absence was similar to the other sergeants’ absences because they also called off work. But Mr. Espinoza testified he did not know whether the sergeants had scheduled their leave in advance. Thus, he did not know whether they actually called off—i.e., notified CTCF of their absences shortly before a scheduled shift—as he had done. Mr. Espinoza only knew the other sergeants were absent from work. Accordingly, Mr. Espinoza provided the di strict court with no evidence supporting-13- an objectively reasonable belief that th e other sergeants al so called off work. ii. Leave in Conjunction w ith Scheduled Time Off Mr. Espinoza next argues that he reasona bly believed he was treated differently from the white sergeants because at least one sergeant took leave in conjunction with scheduled days off and was not disciplined. In contrast, the Performance Document states Mr. Espinoza was discip lined for calling off on a da y preceding his scheduled day off. To support this argument, Mr. Espinoza relies on the OIG report’s finding that one of the sergeants took leave in conjunction with scheduled da ys off. But Mr. Espinoza did not cite to the OIG report in opposing th e DOC’s motion for summa ry judgment. Our review is constrained to the ev idence adequately brought to the attention of the district

court. Fye , 516 F.3d at 1223. Even if we could consider the OIG repor t, it reveals that one of the sergeants was not absent during the time Mr. Espinoza alleged and that the other sergeant had prescheduled sick leave in conjunction with scheduled days off to undergo a medical procedure. Rather than bolster Mr. Espino za’s argument that he reasonably believed the sergeants’ absences were sim ilar to his, the OIG report undermines his claim. iii. Covering Shifts Finally, Mr. Espinoza argues that the serg eants’ absences were similar to his because each absence required othe rs to cover the shift. He testified that on June 27, 2007, he “had to work in a different cellhouse because [he] had to cover for [the] two-14- sergeants.” Appx. at 359. Although the se rgeants were not disc iplined, the Performance Document states Mr. Espinoza wa s disciplined because his abse nce “caused the facility to drop below minimum staffing” and required tw o officers to cover hi s graveyard shift. Id. at 98. Mr. Espinoza’s argument is not persuasive because his absence required a different form of “covering” than did the other sergeants’ absences. According to the Performance Document, “[a] Swing Shift offi cer had to remain on duty until 0200 hours and a Day Shift officer had to report for du ty at 0200 to cover the shortage created by [Mr. Espinoza’s] call off.” Id. In other words, his absence burdened other employees by requiring them to work parts of a graveyard shift when they otherwise would be off. In contrast, Mr. Espinoza’s testimony indicates that he had to “work in a different cellhouse” to cover for the sergeants, not that he had to report to wo rk when he otherwise would not have to. Id. at 359. He presented no evidence that the sergeants’ absences caused him or any other employee to remain on duty longer or report to duty earlier.
* * * We do not suggest that Mr. Espinoza need ed to know every de tail about the white sergeants’ alleged absences before he could make a reasonable complaint of discrimination. But he needed to know at least some facts that would support an objectively reasonable belief that their absences were similar to his. See Little , 103 F.3d at 960 (holding that a plaintiff must show “his belief was objectively reasonable in light of the facts and record presente d”). Such relevant facts could include the reason for their-15- absences; whether their absences were prescheduled or sudd en; whether they used sick leave or some other form of leave; the timing of the absences in conjunction with scheduled time off; and the type of shift (day time, evening, or graveyard) for which they were absent. Mr. Espinoza prov ided no evidence to the district court that he based his discrimination allegation on any of these pertinent facts. In other words, a reasonable allegation requires a reasonable factual basi s, and Mr. Espinoza did not have one. Accordingly, we agree with the district court that Mr. Espinoza’s evidence regarding the white sergeants is insufficient to support an objectively reasonable belief that Capt. Moroney discrimina ted against him. b. Treatment of a Black Employee Mr. Espinoza also argues that he reasonably believed he experienced discrimination because he ha d previously witnessed Capt . Moroney mistreat a black employee who expressed belief that the mi streatment was racially motivated. In the district court, Mr. Espinoza cited to his affidavit and de position testimony to support this argument. His affidavit states that he “observed Capt. Moroney treat a person who was non-Caucasian poorly, and th at person told [him] he believed he was being treated differently because he wa s non-Caucasian.” Appx. at 255. Mr. Espinoza described the incident as follows in his deposition: I heard [Capt. Moroney] telling – it was something to the point [about] what the guy had done. And Mo roney turned around and told him, he said: I’ll kick your ass. Don’t let this bum hip fool you; I can still kick some ass. The guy was like kind of stumblin g all over himself. And Moroney-16- said: Just get back over and do what you’re supposed to do, or something like that, and walked away from the guy. I’m not sure what the whole thin g was about. Id. at 247. The employee, whose name Mr. Espinoza did not know, later asked him “if [Mr. Espinoza] thought . . . the union could help him.” Id. Mr. Espinoza “told him he needed to go talk to them himself; [Mr. Espinoza] didn’t know if they co uld or not. And it was pretty much left at that.” Id. When asked whether Mr. Espinoza perceived that Capt. Moroney mistreated the employee because of his race, he responded: Well, yeah, because after the [black employee] came and talked to me, . . . that’s pretty much what he insinuated to me . . . . So that’s why I come to that [conc lusion]. I saw what I saw, and I kind of felt it. And then [the empl oyee] coming to me kind of, you know, verified it to me.

. . . [The employee] said he felt it wa s [because of race]. He said it wasn’t the first time that [he] and Mo roney had issues. But I never did ask him, you know, to get into it. Id. at 248. We have no reason to doubt that Mr. Espinoza had a subjective good-faith belief that Capt. Moroney mistreated this employe e on the basis of his race. But we must determine whether Mr. Espinoza presented facts showing it was objectively reasonable for him to draw this conclusion and further that it was objectively reasonable for him to conclude that Capt. Moroney also discrimi nated against Mr. Espinoza. His testimony suggests that his belief was based on (i) what he observed in Capt. Moroney’s treatment of the black employee, and (ii) what the employee later told him.-17- i. Mr. Espinoza’s Observations Mr. Espinoza witnessed Capt. Moroney ye ll threats and profanity for something the black employee “had done” and ordered th e employee to “do what [he was] supposed to do.” Id. at 247. Although it might be unus ual that Capt. Moroney treated a subordinate in this manner, Mr. Espinoza has provided no indication that Capt. Moroney’s conduct was out of the ordinary fo r him or other superior officers at CTCF. And although Title VII prohibits racial disc rimination, it “does not set forth a general civility code for the American workplace.” Burlington N. Santa Fe Ry. Co. , 548 U.S. at 68 (quotations omitted). An em ployer’s “rude and unfair con duct” and profanity do not alone violate Title VII. Petersen v. Utah Dep’t of Corr. , 301 F.3d 1182, 1188 (10th Cir. 2002); Baldwin v. Blue Cross/Blue Shield of Ala. , 480 F.3d 1287, 1302 (11th Cir. 2007). Mr. Espinoza’s testimony suggests Capt. Moroney grew verbally aggressive for something the black employee “had done” a nd told the employee to do what he was supposed to be doing. Id. at 247. Mr. Espinoza admits he was “not sure what the whole thing was about,” id. , but just “kind of felt” discrimination had occurred, id. at 248. His description of this incident provides no facts from which to conclude it was objectively reasonable to believe that Capt . Moroney mistreated this employee because of his race. ii. Black Employee’s Statements to Mr. Espinoza Mr. Espinoza notes that the black employee e ither “insinuated” or expressly stated to him that Capt. Moroney’s actions toward the employee were racially motivated. Id. The employee also told Mr. Espinoza that he and Capt. Moroney previously “had issues,”-18- but Mr. Espinoza did not as k for further details. Id. The employee’s statement or insinuation was his opinion, and we can assume it was sincere. But this opinion at mo st could help form Mr. Espinoza’s subjective goodfaith belief that the employee and he both suffer ed discrimination; it could not form the basis of an objectively reasonable belief that discrimination has occurred. It was unreasonable for Mr. Espinoza to assume Capt. Moroney discriminated against him because another employee expre ssed an opinion, unsupported by facts, that he suffered discrimination by Capt. Mo roney. Mr. Espinoza admits he “never did ask” the employee to describe previous encounters with Capt. Moroney, id. , which could have led to facts— not subjective opinions and feelings—sup porting Mr. Espinoza’s belief that he too experienced discrimination. On appeal, Mr. Espinoza also points us to the OIG report, which states that a different employee “told Sergeant Espinoza he felt having been pulled off of a training class by Moroney without an explanation may have been [due to] prejudice.” Id. at 143. This employee “agreed [Mr.] Espinoza might have believed [the employee] felt Moroney might have been a little prejudice [sic].” Id. Mr. Espinoza did not cite this evidence to th e district court. We will not disturb the district court’s ruling based on evidence Mr. Espinoza did not properly present to it. Even if we were to consider this evidence, it again would only support a subjective goodfaith belief, not an objectively reasonabl e one, that Mr. Espinoza experienced discrimination. It was not obj ectively reasonable for Mr. Espinoza to base his allegation-19- of discrimination on another employee’s su bjective opinion that Capt. Moroney “might have been” prejudiced. Id. Mr. Espinoza’s attempt to rely on the opini ons and feelings of other employees is also problematic in light of his reliance on hi s own feelings. In de scribing his July 2, 2007 meeting with Capt. Moroney and Major Ma ifeld, he testified he felt they “ganged up on” him, were “totally all against” him, and “didn’t give [him ] an opportunity to explain anything.” Id. at 239. When asked what made him believe their conduct was based on his race, he replied, “I don’ t know. I just felt that it was.” Id. When asked whether they had given him any indication that their actions were based on his race, he responded, “No.” Id.

c. Rumors or Statements of Segregation Mr. Espinoza briefly asserts on appeal that he was “aware of rumors or statements that Hispanic employees at CTCF were segreg ated together in one cell house.” Aplt. Br. at 15. The district court said these rumors could not form the basis of Mr. Espinoza’s belief that he experienced discrimination becau se the rumors were “contrary to his own experience, which he said included being a ssigned to a cell house with both Hispanic and non-Hispanic employees.” Appx. at 389. We agree with the district court’s reasoni ng. It was not objectively reasonable for Mr. Espinoza to believe he experienced di scrimination because he had heard rumors about discriminatory work assignments, especi ally when the rumors were counter to his own experience. Mr. Espinoza could not recall where he heard the rumors; did not know-20- who allegedly was segregati ng Hispanic employees, let alone Capt. Moroney; and testified that, contrary to the rumors, he worked with non-Hispanics in his cell house, including white employees. d. Associate Warden Arellano’s “Cultural Differences” Comment Finally, Mr. Espinoza argues that when he complained of discrimination, “Associate Warden Arellano did not dispute the claim that racial or national origin discrimination had occurred,” but instead “ack nowledged that cultural differences existed at CTCF and indicated that th ey were working on this situ ation.” Aplt. Br. at 15. The first problem with this argument is timing. Associate Warden Arellano’s comment could not have helped Mr. Espinoza form an objectively reasonable belief that he was opposing discrimination. Mr. Es pinoza himself acknowledges that Associate Warden Arellano made this comment after Mr. Espinoza complained of discrimination. Thus, Associate Warden Arellano’s comment that there were cultural differences at CTCF could not have been part of Mr. Espi noza’s determination that he experienced discrimination. Even if the comment were relevant to the issue at hand, Mr. Espinoza did not present evidence on wh at Associate Warden Arellano mean t by this statement, develop a factual record to demonstrate what the diffe rences were, or explain how this comment established a basis for his belief of discrimination in this instance. See Little , 103 F.3d at 960 (explaining that a plainti ff must show “his belief was objectively reasonable in light of the facts and record presented”). Mr. Espinoza offered the district court only his-21- unsupported belief that white sergeants we re not disciplined fo r similar absences, opinions of other employees about discriminato ry treatment, and rumors of segregation that were counter to his own experience. This evidence is insufficient to show that his subjective belief that he experienced disc rimination was also objectively reasonable.
* * * Mr. Espinoza presented four bases to de monstrate that he reasonably believed Capt. Moroney discriminated agai nst him. We conclude that the evidence he presented to the district court, separately and in the a ggregate, fails to raise a genuine dispute of material fact as to whether his belief was obj ectively reasonable. He therefore has failed to establish the first element of a prima facie case of retalia tion: that he engaged in protected opposition to discrimination.
III. CONCLUSION For the foregoing reasons, we affirm the di strict court’s grant of the DOC’s motion for summary judgment.
ENTERED FOR THE COURT

Scott M. Matheson, Jr. Circuit Judge