UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ ALLEN RUSHING, Plaintiff - Appellant,

v. JENNIFER GRANHOLM, Secretary of the United States Department of Energy, Defendant - Appellee. No. 21-2103 (D.C. No. 1:20-CV-00658-NF-KHR) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, HOLMES and ROSSMAN , Circuit Judges.

________________ _________________ At the time of this lawsu it, Allen Rushing was workin g as a Senior Courier for the National Nuclear Security Administrati on, an agency within the United States Department of Energy (DOE). After he was not selected to advance in the hiring process for a Lead Courier position, he sued the DOE in federal di strict court in New Mexico. He alleged the DOE discriminate d against him based on disability, national origin, and sexual orientation, and reta liated against him for filing an equal

* After examining the briefs and appella te record, this pa nel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 27, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-2103 Document: 010110690021 Date Filed: 05/27/2022 Page: 12 employment opportunity (EEO) complaint. The district court granted the DOE’s motion for summary judgment, and Mr. Rushing now appeals. Exercising jurisdiction pursuant to 28 U.S.C. §1291, we affirm. I. Background Mr. Rushing applied to be a Lead Cour ier. The human resources department identified a group of seven applicants, incl uding Mr. Rushing, who were at least minimally qualified for the Lead Courier pos ition. A leadership review panel then met and evaluated each candida te using five assessment que stions designed to reflect each applicant’s performance during the past year. Three candidates received a score of 136 or higher out of a possi ble score of 140. Mr. Rush ing received a score of 114, and three other candidates scored lower th an him. The candidates who received the top three scores advanced in the hiri ng process and were given interviews. Mr. Rushing and the other candidates with lower scores were not given further consideration. After he was not chosen to advance in the hiring process, Mr. Rushing filed an EEO complaint with the agency. 1 He subsequently filed th e underlying lawsuit. The

1 We note in his brief, Mr. Rushing at tim es refers to filing an “EEO Charge of Discrimination,” see, e.g. , Aplt. Opening Br. at 7-8, but at other times refers to filing an “EEOC complaint,” id. at 10, or “EEOC di scrimination charge,” id. at 12. The references to the “EEOC” might suggest that he filed a complaint with the Equal Employment Opportunity Commission, not the agency’s EEO office. But all the record evidence s hows that Mr. Rushing filed an in ternal EEO complaint with the agency. We also note that neither part y addresses exhaustion of administrative remedies in their appellate briefing. Because exhaustion is not jurisdictional, see Lincoln v. BNSF Ry., Co., 900 F.3d 1166, 1185 (10th Cir. 2018), and it is not necessary to resolve this app eal, we need not consider it, see United States v. Appellate Case: 21-2103 Document: 010110690021 Date Filed: 05/27/2022 Page: 23 government moved for summary judgment on all claims, and Mr. Rushing filed a response in opposition. The district court first consider ed Mr. Rushing’s disability claim. 2 The court concluded Mr. Rushing established a prima facie case of disability discrimination, but he had failed to show that the government’s legiti mate, nondiscriminatory reason for not interviewing him—becau se he was not one of the top three candidates based on the panel score assessments—wa s pretext for discrimination. The court next observed that Mr. Ru shing’s response did not address his claims for discriminati on based on national origin and sexual orientation. 3 Finally, the district court determined that Mr. Rushing failed to establish a prima facie case of retaliation. The court explained that “‘[a] pl aintiff establishes a prima facie case of retaliation by showin g: (1) he or she engaged in protected opposition to discrimination; (2) he or she was subject to an adverse employment

Burkholder , 816 F.3d 607, 620 n. 11 (10th Cir. 2016) (“ In our adversary, common-law system, courts properly answer only the questions that the parties present to them and that ar e necessary for the resolution of the case at hand.”).

2 The district court anal yzed the claim using the burden-shifting framework from McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-06 (1973). Under that framework, “[i]f the plainti ff advances a prima facie ca se of discrimination, the burden shifts to the employer to articula te a ‘legitimate, nondisc riminatory reason’ for not hiring the plaintiff.” Lincoln , 900 F.3d at 1193 (quoting McDonnell Douglas , 411 U.S. at 802). “If the employer articula tes a satisfactory reason, the burden shifts back to the plaintiff to de monstrate that the employer’s stated reason is pretext for discrimination.” Id.

3 Mr. Rushing states in his opening brie f that he “drop[pe d]” these claims. Aplt. Opening Br. at 6 n.1. Appellate Case: 21-2103 Document: 010110690021 Date Filed: 05/27/2022 Page: 34 action; and (3) a causal connection exists between the protected activity and the adverse action.’” Aplt. App ., vol. II at 231-32 (quoting Kendrick v. Penske Transp. Servs., Inc. , 220 F.3d 1220, 1234 (10t h Cir. 2000)). Althou gh the court found that Mr. Rushing engaged in protected oppositi on to discrimination when he filed his EEO complaint, the court concluded he had not shown he was subject to an adverse employment action. In reaching that c onclusion, the distri ct court observed Mr. Rushing did not explain how the five occu rrences he identified in his response to summary judgment could meet the defin ition of an adverse employment action, which requires that the act “carry a ‘s ignificant risk of humiliation, damage to reputation, and a concomitant harm to future employment prospects.’” Id. at 233 (quoting Annett v. Univ. of Kan. , 371 F.3d 1233, 1239 ( 10th Cir. 2004)). The court granted the motion on all clai ms and entered judg ment in favor of the DOE. This timely appeal followed. II. Discussion Summary judgment is proper “if the m ovant shows that there is no genuine dispute as to any material fact and the mova nt is entitled to j udgment as a matter of law.” Fed. R. Civ. P. 56(a) . We review de novo the dist rict court’s decision granting summary judgment. Savant Homes, Inc. v. Collins , 809 F.3d 1133, 1137 (10th Cir. 2016). We have recognized “[t]he fi rst task of an appellant is to explain to us why the district court’s decision was wrong.” Nixon v. City and Cnty. of Denver , 784 F.3d 1364, 1366 (10th Cir. 2015). Mr. Rushing’s brief purports to raise two issues of error Appellate Case: 21-2103 Document: 010110690021 Date Filed: 05/27/2022 Page: 45 with the district court’s decision, but he ha s “utterly fail[ed] . . . to explain what was wrong with the reasoning the district cour t relied on in reaching its decision.” Id. For his first issue, Mr. Rushing argues th e district court e rred in determining that he had not produced sufficient ev idence of causation to survive summary judgment on his retaliation claim. He contends the distri ct court “held that [he] provided sufficient evidence to establish the first two prongs of a prima facie case of retaliation” because hi s “action of filing an EEOC co mplaint is a protected activity and [his] termination was an adverse employment action.” Aplt. Opening Br. at 10. He further argues the district court “r easoned that the ca usation prong was unnecessary” because Mr. Rushing failed to offer evidence that the “proffered reason for [his] termination was pretextual.” Id. He maintains on appeal that he “presented sufficient evidence of causati on between [his] EEOC discrimination charge and [his] termination.” Id. at 12. In response, the government contends th at “Rushing appears to be discussing some other case—because that is not what happened here.” Aple e. Br. at 16. We agree. As the government correctly explains: “The district court found that Rushing’s filing of the EEO complaint was protected activity, but it granted summary judgment on the second element because it found th at Rushing failed to present sufficient evidence of an a dverse employment action.” Id. As for Mr. Rushing’s references to his “termina tion,” the government further explains that Mr. Rushing never alleged in district c ourt that he had been termin ated. To the contrary, he alleged in his complaint that he “ works for Defendant as a Se nior Courier,” Aplt. Appellate Case: 21-2103 Document: 010110690021 Date Filed: 05/27/2022 Page: 56 App., vol. I at 6 (emphasis added), and he re peats that allegation in his opening brief,

see Aplt. Opening Br. at 7. The government asserts that Mr. Rushing’s opening brief “does not acknowledge, much less challe nge, the district court’s ruli ng that he failed to offer sufficient evidence of an a dverse employment action. In stead, he attacks rulings on the causation element and on the issue of pretext that the di strict court never made.” Aplee. Br. at 16. The government therefor e argues that Mr. Rushing has waived any challenge to the district court’s grant of summary judgment on his retaliation claim. See id. We are persuaded by the government’s argument that Mr. Rushing has waived any challenge to the district c ourt’s ruling on his retaliation claim by not addressing the basis for that ruling in his opening brief. 4 See Nixon , 784 F.3d at 1369 (affirming dismissal of claim because ope ning brief “contain[ed] nary a word to challenge the basis of the dismissal”); see also Reedy v. Werholtz , 660 F.3d 1270, 1275 (10th Cir. 2011) (declining to addres s propriety of dist rict court’s ruling because appellant failed to “challenge th e court’s reasoning on th[at] point”).

4 Mr. Rushing does attempt to address th is issue in his repl y brief, arguing for the first time that he did pr esent sufficient evid ence of an adverse employment action. But “[t]he general rule in this circuit is that a party waives issues and arguments raised for the first tim e in a reply brief.” Reedy v. Werholtz , 660 F.3d 1270, 1274 (10th Cir. 2011) (interna l quotation marks omitted). And “[w]e see no reason to depart from that rule here.” Id. ; see also, e.g. , In re Motor Fuel Temperature Sales Pracs. Litig. , 872 F.3d 1094, 1112 & n.5 (10th Cir. 2017) (applying this waiver rule where appellant failed to address district court’s reasoning in its opening brief and instead addressed it for the firs t time in its reply brief). Appellate Case: 21-2103 Document: 010110690021 Date Filed: 05/27/2022 Page: 67 Mr. Rushing’s second issue fares no bette r. He argues the district court granted summary judgment despite material i ssues of fact in di spute related to the “Leadership Review done by the Agency .” Aplt. Opening Br. at 13. But Mr. Rushing does not explain what claim this argument relates to or what aspect of the district court’s decision he is challenging. See id. at 13-14. He offers only a repeated citation to one page from his response to summary judgment. See id. (citing Aplt. App., vol. II at 158). On that page , Mr. Rushing argued that the evidence he presented about the Leadership Review was “sufficient evidence of pretext to survive the summary judgment stage” on his disability cl aim. Aplt. App., vol. II at 158. But the district court rejected this argument, explaining that Mr. Rushing failed to show pretext because he “[did] not correlate the fact of his disa bility to any of the actions taken by the review panel.” Id. at 229. On appeal, Mr. Rushing fails to address the district court’s reasoning. He does not appropriately frame and develop any challenge to th e grant of summary judgment on his disability claim, or mention that he is challenging th e district court’s determination that he failed to show the government’s legitimate, nondiscriminatory reason for not advancing him in the hiring process was pr etextual. We therefore agree with the government that Mr. Rushing has waived this argum ent by failing to adequately brief it, so we cannot address it on appeal. See, e.g. , Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 679 (10th Ci r. 1998) (“Arguments inadequately briefed in the opening brief are waived.”); Murrell v. Shalala , 43 F.3d 1388, 1389 n.2 (10th Cir. Appellate Case: 21-2103 Document: 010110690021 Date Filed: 05/27/2022 Page: 78 1994) (explaining that “perfunctory compla ints” that “fail to frame and develop an issue” are insufficient “to invoke appellate review”). III. Conclusion For the foregoing reasons, we affirm the district court’s judgment.

Entered for the Court Veronica S. Rossman Circuit Judge Appellate Case: 21-2103 Document: 010110690021 Date Filed: 05/27/2022 Page: 8