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 lawsuit, Allen Rushing was working as a Senior Courier for 

the National Nuclear Security Administration, 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 district court in New 

Mexico. He alleged the DOE discriminated against him based on disability, national 

origin, and sexual orientation, and retaliated against him for filing an equal 

* After examining the briefs and appellate record, this panel 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 This order and judgment is not binding precedent, 

except under the doctrines of law 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

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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 Courier. The human resources department 

identified a group of seven applicants, including Mr. Rushing, who were at least 

minimally qualified for the Lead Courier position. A leadership review panel then 

met and evaluated each candidate using five assessment questions designed to reflect 

each applicant’s performance during the past year. Three candidates received a score 

of 136 or higher out of a possible score of 140. Mr. Rushing received a score of 114, 

and three other candidates scored lower than him. The candidates who received the 

top three scores advanced in the hiring 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 the underlying lawsuit. The 

1

 We note in his brief, Mr. Rushing at times 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 discrimination 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 shows that Mr. Rushing filed an internal EEO complaint with the 

agency. We also note that neither party 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 appeal, we need not consider it, see United States v. 

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government moved for summary judgment on all claims, and Mr. Rushing filed a 

response in opposition. 

The district court first considered 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 legitimate, nondiscriminatory reason 

for not interviewing him—because he was not one of the top three candidates based 

on the panel score assessments—was pretext for discrimination. 

The court next observed that Mr. Rushing’s response did not address his 

claims for discrimination 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] plaintiff establishes a 

prima facie case of retaliation by showing: (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 are necessary for the resolution of the case at hand.”). 

 

2

 The district court analyzed 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 plaintiff advances a prima facie case of discrimination, the 

burden shifts to the employer to articulate a ‘legitimate, nondiscriminatory reason’ 

for not hiring the plaintiff.” Lincoln, 900 F.3d at 1193 (quoting McDonnell Douglas, 

411 U.S. at 802). “If the employer articulates a satisfactory reason, the burden shifts 

back to the plaintiff to demonstrate that the employer’s stated reason is pretext for 

discrimination.” Id.

3

 Mr. Rushing states in his opening brief that he “drop[ped]” these claims. 

Aplt. Opening Br. at 6 n.1. 

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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 (10th Cir. 2000)). Although the court found that 

Mr. Rushing engaged in protected opposition 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 conclusion, the district court observed 

Mr. Rushing did not explain how the five occurrences he identified in his response to 

summary judgment could meet the definition of an adverse employment action, 

which requires that the act “carry a ‘significant 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 claims and entered judgment in favor of 

the DOE. This timely appeal followed. 

II. Discussion 

Summary judgment is proper “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). We review de novo the district court’s decision granting 

summary judgment. Savant Homes, Inc. v. Collins, 809 F.3d 1133, 1137 

(10th Cir. 2016). 

We have recognized “[t]he first 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 

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with the district court’s decision, but he has “utterly fail[ed] . . . to explain what was 

wrong with the reasoning the district court relied on in reaching its decision.” Id. 

For his first issue, Mr. Rushing argues the district court erred in determining 

that he had not produced sufficient evidence of causation to survive summary 

judgment on his retaliation claim. He contends the district court “held that [he] 

provided sufficient evidence to establish the first two prongs of a prima facie case of 

retaliation” because his “action of filing an EEOC complaint is a protected activity 

and [his] termination was an adverse employment action.” Aplt. Opening Br. at 10. 

He further argues the district court “reasoned that the causation 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 causation between [his] EEOC discrimination charge and [his] 

termination.” Id. at 12. 

In response, the government contends that “Rushing appears to be discussing 

some other case—because that is not what happened here.” Aplee. 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 that Rushing failed to present 

sufficient evidence of an adverse employment action.” Id. As for Mr. Rushing’s 

references to his “termination,” the government further explains that Mr. Rushing 

never alleged in district court that he had been terminated. To the contrary, he 

alleged in his complaint that he “works for Defendant as a Senior Courier,” Aplt. 

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App., vol. I at 6 (emphasis added), and he repeats 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 challenge, the district court’s ruling that he failed to offer 

sufficient evidence of an adverse employment action. Instead, he attacks rulings on 

the causation element and on the issue of pretext that the district court never made.” 

Aplee. Br. at 16. The government therefore 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 court’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 opening 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 address propriety of district court’s ruling 

because appellant failed to “challenge the court’s reasoning on th[at] point”). 

4

 Mr. Rushing does attempt to address this issue in his reply brief, arguing for 

the first time that he did present sufficient evidence 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 time in a reply brief.” Reedy v. Werholtz, 660 F.3d 1270, 1274 

(10th Cir. 2011) (internal 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 first time in its reply brief). 

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Mr. Rushing’s second issue fares no better. He argues the district court 

granted summary judgment despite material issues of fact in dispute 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 claim. 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 disability 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 the grant of summary judgment 

on his disability claim, or mention that he is challenging the district court’s 

determination that he failed to show the government’s legitimate, nondiscriminatory 

reason for not advancing him in the hiring process was pretextual. We therefore 

agree with the government that Mr. Rushing has waived this argument 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 Cir. 1998) (“Arguments inadequately briefed in 

the opening brief are waived.”); Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 

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1994) (explaining that “perfunctory complaints” 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 

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