UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ ZEYNEP UNAL, Plaintiff - Appellant,

v. LOS ALAMOS PUBLIC SCHOOLS; LOS ALAMOS PUBLIC SCHOOLS SCHOOL BOARD; EUGENE SCHMITT and KATHRYN VANDENKIEBOOM, in their individual capacities, Defendants - Appellees. No. 15-2055 (D.C. No. 1:13-CV -00367-LAM-WPL) (D. N.M.)

_________________________________ ORDER AND JUDGMENT *

_________________________________ Before BRISCOE , LUCERO , and McHUGH , Circuit Judges.

_________________________________
I. INTRODUCTION Zeynep Unal, an elementary school teach er in the Los Alamos Public School District (LAPS), brought suit against LAPS, its Superintendent, and the principal of the elementary school where she worked (c ollectively, Defendant s) alleging various claims of national-origin disc rimination and retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, the Equal Protection Clause of the

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel.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

### January 29, 2016 Elisabeth A. Shumaker Clerk of Court2 Fourteenth Amendment to the U.S. Constit ution, and the New Mexico Human Rights Act. The district court granted summary judgment in favor of Defendants on all claims. On appeal, Ms. Unal argues she pr esented sufficient evidence at summary judgment to send her hostile-work-environmen t and retaliation cl aims to a jury. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse in part and affirm in part. II. BACKGROUND A. Factual History Because this matter comes to us on appeal from a gr ant of summary judgment for Defendants, we present the facts in the light most favorable to the nonmoving party, Ms. Unal. Eisenhour v. Weber Cty. , 744 F.3d 1220, 1226 (10th Cir. 2014). Ms. Unal, a Turkish-born Muslim woman who speaks with a distin ct Turkish accent, has worked for LAPS as an el ementary teacher in the district’s Gi fted and Talented Education (GATE) program since 2004. In 2006, she began working at Aspen Elementary School. In 2008, LAPS hired Katheryn Vandenkieboom as the principal of Aspen Elementary School. As princi pal, Ms. Vandenkieboo m was Ms. Unal’s supervisor from 2008 to 2012. Ms. Unal alleges that during her tim e working under Ms. Vandenkieboom’s supervision, the school had a culture of racial and ethnic insensitivity and Ms. Vandenkieboom made, encouraged, or acquiesced in various hostile comments. Some of these insensitive comments were di rected at Ms. Unal. For example, while eating lunch in the faculty lounge one day, Ms. Vandenkieboo m and others began discussing an American movi e. Ms. Vandenkieboom, in fr ont of the staff, told3 Ms. Unal “You wouldn’t know about this . You are not from here.” On another occasion during an after-school Christmas concert in which Ms. Unal’s own child was participating, Ms. Vande nkieboom thanked various teachers for their attendance at the concert but approached Ms. Unal a nd asked, “what are y ou doing here?” Ms. Vandenkieboom would also condescendingly correct Ms . Unal’s pronunciation in front of staff. And another staff member once called Ms. Unal “a turkey from Turkey,” although the staf f member later apologized. Beyond the comments made directly to Ms. Unal, Ms. Vandenkieboom and her staff made insensitive re marks about other nationa lities. Ms. Vandenkieboom repeatedly referred to a Viet namese family as the “little people,” and staff members joked openly about an Asian family’s surn ame, Fu, equating it w ith a crude insult, “F.U.” The school’s office staff would al so make announcements over the school’s intercom system in feigned foreign accents and laugh about it. 1 Ms. Unal was not the only faculty member to notice this insensit ive conduct. On January 7, 2012, Sherry Sanchez, the school’s speech therapist, wrote an email to Ms. Unal summarizing discriminatory conduct she had observed at the school.

1 Ms. Unal also relies on evidence s howing Ms. Vandenkieboom told a group of staff members that she wished certain Hispanic and Native American students who left an offensive message on the school’s voicemail “would all die” and that they “don’t deserve the dirt they walk on.” But Ms. Unal failed to demonstrate that, in making these comments, Ms. Vandenkieboom was motivated by national-origin or racial animus toward the st udents, rather than offense based on the content of their message. In addition, there was no evidence presented that Ms. Unal was aware of these comments during the time she was allegedly subject to a hostile work environment. We therefore do not consider them.4 Ms. Unal, who was the only foreign-born teacher at Aspen Elementary, also alleges she was subjected to disparate treatment because of her national origin. For instance, prior to Ms. Vandenkieboom’s ar rival, Ms. Unal was considered a good teacher and regularly received positive reviews; however, once Ms. Vandenkieboom became principal, Ms. Unal’s coworkers observed that th is changed. They noticed that Ms. Vandenkieboom treated Ms. Unal as if she “didn’t really know what she was doing.” Ms. Unal also observed that Ms. Vandenkieboom would not make eye contact with her. On one occasion, Ms. Unal informed Ms. Vandenkieboom it was against state regulations to require Ms. Unal to grade th e GATE students and to insist she also teach regular education cla sses. Ms. Vandenkieboom did not believe Ms. Unal until a LAPS administrator conf irmed that Ms. Vandenkieboom’s requests were contrary to state regulations. Ms. Vandenkieboom also excluded Ms . Unal from certain work-related communications in which Ms. Unal had prev iously participated. For example, early in Ms. Vandenkieboom’s tenure as principal of Aspen Elem entary, she sent an email to all the teachers except Ms. Unal re questing feedback on the GATE program and also held a GATE meeting to which she did not invite Ms. Unal. But Ms. Vandenkieboom did not exclude other teachers from communi cations regarding their specialized programs. Ms. Vandenk ieboom also esta blished disparate expectations for faculty at tendance at meetings schedu led to discuss students who had Individualized Education Plans (IEP ). Although Ms. Vandenkieboom routinely5 excused teachers from attending meetings to discuss Ms. Unal’s IEP students, she made no such exceptions for attendance at other teachers ’ IEP meetings. Ms. Vandenkieboom was also uncharacter istically slow in responding to Ms. Unal’s professional needs. During the 2010–2011 school year, for example, Ms. Vandenkieboom assigned Ms. Unal a cl ass size of over fifty students—nearly double the size permitted unde r state law. Although Ms. Unal “accepted” the large class size, she anticipated, per school po licy, that she would receive a permanent instructional assistant. Instead, Ms. Unal received “sporadic[]” support from instructional assistants assigned to other teachers at the school. In contrast, when another teacher received an influx of students later that same school year, Ms. Vandenkieboom resolved he r instructional-assi stant needs within one week. Even after the school’s Coordina tor for Student Services informed Ms. Vandenkieboom of the need to assign Ms. Unal an instru ctional assistant, several months passed before Ms . Vandenkieboom complied. Af ter Ms. Unal was finally assigned her own instructional assistant, th e assistant praised Ms . Unal’s ability to give each student individualized attention, despite having to manage such a large workload. Ms. Vandenkieboom also solicited pe rformance information and negative feedback about Ms. Unal, but did not seek criticism abou t other teachers. Specifically, Ms. Vandenkieboom questi oned the school’s speech therapist, Ms. Sanchez, about Ms. Unal’s performance, but did not questi on Ms. Sanchez about the performance of any other teacher s. According to Ms. Sanchez, Ms.6 Vandenkieboom stated, “I’m going to get [Ms. Unal].” Ms. Vandenkieboom likewise solicited negative feedback ab out Ms. Unal from a substitute teacher. Yet she did not ask substitutes about the pe rformance of other teachers. 2 Although the substitute teacher gave no negative feedback, on a sepa rate occasion, thre e teachers who were considered close friends of Ms. Vandenkieboom complained that Ms. Unal failed to provide them with GATE student progres s reports, even thou gh no policy existed requiring GATE teachers to provide non-GATE teachers with such information. Based on this negative feedback, Ms. Vande nkieboom verbally counseled Ms. Unal. Shortly thereafter, Ms. Unal reported wh at she perceived as discriminatory conduct. In the spring of the 2010–2011 scho ol year, Ms. Unal wrote a letter to the Assistant Superintendent, Paul a Dean. In the lette r, Ms. Unal expressed her belief that Ms. Vandenkieboom was biased agai nst her and that Ms. Vandenkieboom seemed to have a problem with Ms. Unal’s culturally different b ackground. Four days

2 Ms. Unal also points to a letter from her instructiona l assistant indicating that Ms. Vandenkieboom asked the instructional a ssistant how Ms. Unal was treating her, “in a manner that implied [the assistant] should say negative things to curry favor with” Ms. Vandenkieboom. Defe ndants contend the letter is inadmissible hearsay and therefore insufficient to defeat summary judgment. Although the nonmoving party at summary judgment need not “p roduce evidence in a form th at would be admissible at trial,” Celotex Corp. v. Catrett , 477 U.S. 317, 324, she must nonetheless demonstrate that the content of the evid ence could be presented in an admissible form at trial, Argo v. Blue Cross & Blue Shield of Kan., Inc. , 452 F.3d 1193, 1199 (10th Cir. 2006); 11 J AMES W M

. M OORE ET AL ., Moore’s Federal Practice - Civil § 56.91 (3d ed. 2015) (“The requirement is that the pa rty submitting the evidence show that it will be possible to put the info rmation, the substance or c ontent of the evidence, into an admissible form.”). Here , Ms. Unal has failed to do so. We therefore do not consider the hearsay statements of the instructional assist ant contained in the letter.7 after Ms. Unal sent this letter, Ms. Vandenkieboom issued Ms. Unal three disciplinary letters, which covered the sa me topics she had discussed during the earlier verbal counseling. Ms. Unal then s ubmitted a formal grieva nce to the district contesting the disciplinary le tters. In response, LAPS ad ministration held a meeting involving Ms. Unal, the Human Resource Coordinator, Ms. Vandenkieboom, and Ms. Unal’s union representative. Ms. Unal requested that the disciplinary letters be removed from her file and that she be as signed a new supervisor . During the meeting, the LAPS representatives indicated that Ms. Unal’s demands would be met. Just days later, in the middle of class, Ms. Vandenkieboom, the Human Resource Coordinator, and As sistant Superintendent Dean entered Ms. Unal’s class unannounced, pulled Ms. Unal out of the classroom, and told her that Ms. Vandenkieboom would remain her superv isor and that the school was moving her class from the building to an outside portable classroom, effe ctive immediately. This incident happened within a month of the end of the school year. Neither Ms. Vandenkieboom nor LAPS provided an explanation for the move. During this same timeframe, Ms. Unal began suffering from panic attacks. Her health continued to deteriorate and in July 2011, she had a panic attack shortly after exercising that caused her to faint, hit her head, and suffer a concussion. Ms. Unal sought medical attention, a nd the doctor cited the “extraor dinary stress from” work, her mother’s poor health, and marital pr oblems as potential causes of the panic attacks. The doctor prescribed her antidepr essants. Ms. Unal then applied for and received medical leave, which she rema ined on for the duration of the 2011–20128 school year. On January 13, 2012, while she was on leave, Ms. Unal filed a charge of discrimination against Defendants with the Equal Employment Opportunity Commission (EEOC). The EEOC eventually gr anted Ms. Unal a right-to-sue letter. Several months later, in accordance w ith Ms. Unal’s teaching contract, LAPS sent her a notice of intent to rehire for the 2012–2013 school year. Per the terms of the notice, Ms. Unal was requi red to return the signed noti ce within fifteen days to renew her contract. The noti ce was dated May 7, 2012. Ms . Unal received the notice on May 19, 2012, and hand delivered the signed notice on May 23, 2012. Despite Ms. Unal having returned the notice with in fifteen days of receiving it, LAPS attorneys did not initially a ccept the notice, thereby effect ively terminating Ms. Unal. After Ms. Unal’s attorney s became involved, however , LAPS conceded that Ms. Unal’s response was timely and rescinde d the termination. Ms. Unal entered a contract with LAPS to teach at a differe nt elementary school for the 2012–2013 school year. B. Procedural History Ms. Unal filed this lawsuit against LAPS, Superintendent Eugene Schmidt, and Ms. Vandenkieboom alleging, among other things, hostile work environment and retaliation in violation of T itle VII, 42 U.S.C. § 1981, th e Equal Protection Clause to Fourteenth Amendment, and the New Mexi co Human Rights Act. Ms. Unal alleged three separate instances of retaliation: (1) Ms. Vandenkieboom’ s issuance of three disciplinary letters shortly afte r Ms. Unal sent a letter to the district complaining of discrimination; (2) Ms. Vandenkieboom an d Assistant Superintendent Dean’s9 conduct in entering her classroom unannounced , reneging their commitment to assign Ms. Unal a new supervisor, a nd ordering her class to relo cate to a portable trailer shortly after she filed her formal grievance; and (3) the district ’s initial decision to terminate Ms. Unal for allegedly failing to timely respond to the notice of intent to rehire. Defendants moved for summary judgmen t on all counts, and the district court granted the motion in whole. Regarding the hostile-work-e nvironment claim, the dist rict court reasoned the evidence failed to show Ms. Vandenkie boom’s and her staff’s conduct was sufficiently severe or pervas ive to support a claim for hos tile work environment. As to the retaliation claims, th e district court rejected ea ch on separate grounds. It concluded (1) Ms. Unal failed to de monstrate Ms. Vandenkieboom knew of Ms. Unal’s letter to the district at the time she i ssued the disciplinar y letters, (2) the relocation of Ms. Unal’s clas s to the portable classroom outside the building did not constitute a materially a dverse employment action, an d (3) no causal connection existed between Ms. Unal’s EEOC action a nd LAPS’s initial deci sion to terminate her. This appeal followed. III. DISCUSSION We review de novo the district c ourt’s grant of summary judgment on Ms. Unal’s hostile-work-envi ronment and retaliation cl aims, applying the same standard as the district court. Bertsch v. Overstock.com , 684 F.3d 1023, 1027 (10th Cir. 2012). We view the evidence and all reas onable inferences to be drawn from it in the light most favorable to the nonmoving party. Id. Viewing the evidence this way,10 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) . “An issue is ‘genuine’ if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way, and an issue of fact is ‘material’ if under the s ubstantive law it is es sential to the proper disposition of the claim.” Lounds v. Lincare, Inc. , --- F.3d. ---, No. 14-3158, 2015 WL 9299074, at *9 (10th Cir. 2015) (brack ets and internal quotation marks omitted). Because of their fact-intensive nature, employment-discrimina tion claims are not well suited for summary judgmen t and should “go to the ju ry so long as the evidence is sufficient to allow the jury to disbelieve the employer’s explanation for the alleged misconduct.” Id. (brackets and internal quotati on marks omitted). Applying this standard to Ms. Unal’s claims of hostile work environment a nd retaliation, we conclude the district c ourt erred in granting summary judgment on Ms. Unal’s hostile-work-environment clai m, but we affirm summar y judgment in favor of Defendants on her retaliation claims. A. Hostile Work Environment Under Title VII of the Civil Rights Act of 1964, an employer may not “discriminate against any indi vidual with respect to his [o r her] compensation, terms, conditions, or privileges of em ployment, because of such i ndividual’s race . . . or national origin.” 42 U.S.C. § 2000e-2(a)(1). An employer violates Title VII when it allows “a hostile work environment based on race or national origin discrimination.” Hernandez v. Valley View Hosp. Ass’n , 684 F.3d 950, 957 (10th Cir. 2012) (internal11 quotation marks omitted). Title VII is not a “general civility code,” id. ; therefore, to avoid summary judgment on a hostile work environment claim, a plaintiff “must show that a rational jury could find that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditi ons of the victim’s employm ent and create an abusive working environment.” Id. at 958 (internal quota tion marks omitted). To carry her prima facie burden under the hostile-work-environment framework, Ms. Unal must show “(1) she is a member of a protected group; (2) she was subject to unwelcome harassment; (3 ) the harassment was based on [national origin]; and (4) due to the harassment’s se verity or pervasiven ess, the harassment altered a term, condition, or privilege of [her] employment and created an abusive working environment.” Lounds , 2015 WL 9299074, at *11 (brackets and internal quotation marks omitted). The parties here agree that Ms. Unal is a member of a protected group based on her national origin and that she was s ubject to some unwelcome harassment. The parties dispute, however, whether the hara ssment was based on Ms. Unal’s national origin and whether it was suff iciently severe or pervas ive to demonstrate a hostile work environment. Our analysis therefor e proceeds by assessing whether Ms. Unal’s evidence raises a genuine dispute as to these two elements of a hostile-workenvironment claim. We c onclude that it does.12 1. National-Origin-Based Harassment To survive summary judg ment on a claim of national-origin-based hostile work environment, a plaintiff must show harassment stemming from animus toward her national origin. Hernandez , 684 F.3d at 960. Although evidence of animus directed at a plaintiff’s pa rticular nationality provides the strongest evidence of a hostile work environment, “evidence of a general work atmosphere, including evidence of harassment of other [nationali ties], may be considered in evaluating a claim, as long as [plaintif f] presents evidence that [s]he knew about the offending behavior.” Tademy v. Union Pac. Corp. , 614 F.3d 1132, 1146 (10th Cir. 2008) (internal quotation marks omitted); see also Hernandez , 684 F.3d at 959 (“[D]erogatory comments need not be dire cted at or intended to be received by the victim to be evidence of a hostile work environment.”). Moreover, “facially neutral abusive conduct can support a finding of [n ational-origin-based] animus sufficient to sustain a hostile work environment claim when that conduct is viewed in the context of other, overtly . . . discriminatory conduct.” Hernandez , 684 F.3d at 960 (brackets and internal quotation marks omitted). Thus, courts eval uating a hostile-workenvironment claim must avoid viewing individual instances of hostility in isolation but instead must look to the “t otality of the circumstances.” Id. at 959 (internal quotation marks omitted); see also McCowan v. All Star Maint., Inc. , 273 F.3d 917, 925 (10th Cir. 2001) (“[W]hen we examine the context of this Title VII claim, we look at both specific hostility targeting Plaintiffs as well as the general work atmosphere.”).13 In this case, Ms. Unal pres ents three categories of evidence that she contends create a genuine issue of national-origin-based harassment: (1) comments or conduct that were overtly based on her nationality , (2) hostile comments made about people of other nationalities, and (3) facially-neu tral conduct demonstrating she was treated differently than her U.S.-bor n peers. As to the first cat egory, Ms. Unal produced evidence of three instances when Ms. Va ndenkieboom and other staff members made derogatory comments to Ms. Unal base d on her nationality. On one occasion, Ms. Vandenkieboom questioned why Ms. Un al would attend a school Christmas concert, but thanked other teachers for th eir attendance, and on a separate occasion Ms. Vandenkieboom excluded Ms. Unal from a conversation about an American movie because Ms. Unal is “not from here .” Additionally, a diff erent staff member once called Ms. Unal a “turkey from Turkey.” The district court concluded the onl y direct comment about Ms. Unal’s nationality was the “turkey from Turkey” co mment. But the district court failed to consider the reasonable inference that Ms . Vandenkieboom’s co mments, when taken in context, were intended to emphasize ne gatively Ms. Unal’s st atus as a foreigner. 3 And although Ms. Vandenkieboom’s commen t at the Christmas concert could be interpreted as demonstrating animus towa rd Ms. Unal based on her Muslim faith,

3 Excluding Ms. Unal from the discus sion about the movie would do little, standing alone, to advance her hostile work environment claim. But when combined with the other two incidents, it provides so me evidence that she was targeted based on her national origin.14 Turkey’s status as a pr edominantly Muslim country 4 effectively intertwines Ms. Unal’s religion and nationality. See Hassan v. City of New York , 804 F.3d 277, 303 (3d Cir. 2015) (“The history of religious discrimination in th e United States is intertwined with that based on other prot ected characteristic s, including national origin and race.”). Thus, a jury could reasonably infer from this comment that Ms. Vandenkieboom harbored animus towa rd Ms. Unal because of her national origin. Second, Ms. Unal’s evidence of hara ssing comments directed at other nationalities will support an inference of a national-origin-based hostile work environment if Ms. Unal was present when they were made or otherwise became aware of them “during the time that sh e was allegedly subject to a hostile work environment.” Hirase-Doi v. U.S. W. Commc ’ ns, Inc. , 61 F.3d 777, 782 (10th Cir. 1995); superseded on other grounds by Fa ragher v. City of Boca Raton, 524 U.S. 775 (1998); accord Tademy , 614 F.3d at 1146. Ms. Unal kne w of the following comments or conduct directed at other nationaliti es: Ms. Vandenkieboom’s use of the term “little people” to refer to a Vietnamese family; staff members’ use of feigned foreign accents to make school-wide announcements while other staff members laughed at this conduct; and an instan ce where some staff members mocked an Asian family based on their surname Fu. There is no evid ence, however, that Ms. Unal was aware during the relevant time peri od that staff members had j oked that the “valley people”

4 See Middle East: Turkey , CIA World Factbook (Dec. 10, 2015), https://www.cia.gov/library/publications /the-world-factbook/geos/tu.html (listing Turkey’s religious make-up as 99.8% Muslim, 0.2% other).15 would steal from them during a power outage or that staff members had made other racially discriminatory comments about Hispanic and Native American students. 5 Therefore, we may not cons ider these comments in asse ssing the environment at Aspen Elementary. Notwithstanding this li mitation, we are convinced that the comments directed at other nationalities of which Ms. Unal was aware support an inference that the administra tion at Aspen Elementary main tained a culture of animus towards foreign-bor n individuals. Finally, Ms. Unal relies on several instan ces of facially neutral conduct that she argues support an inferenc e of hostility based on her na tional origin. In assessing the totality of the evidence supporting a hostile-work-environment claim, “what is important . . . is the environment , and [facially] neutral harassment makes up an important part of the rele vant work environment.” Hernandez , 684 F.3d at 960 (internal quotation marks omit ted). Therefore, “when a pl aintiff introduces evidence of both [facially discriminato ry] and [facially] neutral ha rassment, and when a jury, viewing the evidence in contex t, reasonably could view all of the allegedly harassing conduct as the product of [nat ional-origin] hostility, then it is for the fact finder to decide whether such an inference should be drawn.” Id. (ellipsis and internal quotation marks omitted).

5 For instance, Ms. Unal relies on Ms . Vandenkieboom’s derogatory comments about Hispanic students and Ms. Vandenkie boom’s decision to send the police to the homes of Hispanic families who had not re turned a waiver form. Although Ms. Unal learned about these comments prior to the filing of her EEOC complaint, she did not hear any of the comments directly, and she has not pointed to anything in the record demonstrating that she was aware of thes e comments during the time period in which she was allegedly subject to a hostile work environment.16 In this case, Ms. Unal pr esented evidence of various facially neutral incidents that a jury could view as products of national-origi n hostility. The evidence shows that Ms. Vandenkieboom (1) solicited nega tive feedback about Ms. Unal from a substitute teacher, but did not do so with re spect to other teachers ; (2) discounted Ms. Unal’s knowledge and expe rtise concerning the GATE pr ogram, as evidenced by her failure to include Ms. Unal in GATE co mmunications; (3) excused other teachers from attending Ms. Unal’s IEP meetings but made no such exception for attendance at other teachers’ IEP me etings; (4) let several m onths pass before assigning Ms. Unal her own instructional assistant but immediately assigned an instructional assistant to a U.S.-born teacher who accep ted a large class si ze; (5) regularly corrected Ms. Unal’s pronuncia tion in front of other staf f members; and (6) entered Ms. Unal’s classroom unannounced and, w ithout explanation, required her to move her class to a portable classroom. These seemingly neutral inci dents “cannot simply be discarded” because they were not discriminatory on their face. Id. (internal quotation marks omitted). Instead, we must view them in relati on to the totality of the circ umstances because they “must be weighed on the side of reasonable inferences.” Id. (internal quotation marks omitted). The relevant circumstances here include Ms. Unal’s st atus as the school’s only foreign-born teacher, Ms. Vandenkiebo om’s disparate treatment of other teachers, and evidence showi ng a culture of animus toward s individuals of different national origin. Viewing all the evidence toge ther, in context, a reasonable jury could conclude that these facially neutral incide nts were products of a larger environment17 of hostility toward foreign-born individual s like Ms. Unal. We therefore conclude that Ms. Unal presented sufficient ev idence at summary judgment from which a reasonable jury could conclude the hara ssment she experienced was based on her national origin. 2. Severity or Pervasiveness Next, we consider whether the harassment was sufficiently severe or pervasive to have altered a term, condition, or privil ege of Ms. Unal’s employment. “‘There is not, and by its nature cannot be, a mathematic ally precise test’” for satisfying this element of a hostile-wo rk-environment claim. Hernandez , 684 F.3d at 957 (brackets omitted) (quoting Harris v. Forklift Sys., Inc. , 510 U.S. 17, 22 (1993)). Instead, we look to the totality of the circumstances and consider va rious factors, including “the frequency of the discrimina tory conduct; its severity ; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Lounds , 2015 WL 9299074, at *11 (internal quot ation marks omitted). In de monstrating these factors, the plaintiff “must show more than a few is olated incidents” of enmity based on her national origin. Id. (internal quotation marks omitted) . Instead, the plaintiff must demonstrate she was subject to a “steady barrage of oppr obrious” conduct directed at her because of her national origin. Id. (internal quotation mark s omitted). Moreover, a plaintiff must prove not only that she s ubjectively “deem[ed] the work environment hostile,” but also that the environmen t was objectively hostile as viewed by “a18 reasonable employee under the same or similar circumstances.” Id. (internal quotation marks omitted). “[P]ervasiveness and severity are i ndependent and equal grounds upon which a plaintiff may establish this elem ent of a hostile e nvironment claim.” Tademy , 614 F.3d at 1144 (internal quotation marks omitte d). Indeed, as logic would suggest, the two are often “inversely related” such that “a sufficiently severe episode may occur as rarely as once, while a re lentless pattern of lesser harassment that extends over a long period of time” may also be suffic ient to demonstrate a hostile work environment. Id. (ellipsis and internal quotation marks omitted). Because of its inherently fact-intensive nature “the severity and pervasiveness evaluation is particularly unsuited for summary judgment.” Lounds , 2015 WL 9299074, at *11. Here, Ms. Unal points to no single inci dent that was suffi ciently severe to satisfy this element of a hos tile work environment on its own. Instead, she contends that when looking to the cumulative ef fect of all relevant conduct—including the overtly hostile conduct directed at her, the conduct directed at other nationalities, and the facially neutral conduct— a reasonable jury could conc lude she was subject to a pervasive environment of hostil ity because of her status as a foreigner. Specifically, Ms. Unal was the direct recipient of th ree harassing comments based on her national origin; heard or became aware of insens itive comments made about Asian students and people who speak with accents; and ex perienced numerous incidents of disparate treatment that could reasonably be viewed as intended to isolat e, disregard, or undermine her because of her national origin.19 Although we acknowledge the wide time span during which this conduct took place—from the fall of 2008 when Ms. Va ndenkieboom became principal of Aspen Elementary until the summer of 2011 when Ms. Unal took a leave of absence—we are persuaded that the harassing conduct occurred with enou gh frequency that a reasonable jury could conclude Ms. Unal experienced a perv asively hostile work environment. Moreover, a reasonable jury could find this conduct was both objectively and subjectively hostile. The ha rassing conduct remained persistent throughout the time Ms. Unal worked und er Ms. Vandenkieboom’s supervision such that a reasonable person in Ms. Unal’s pos ition could deem it hostile. The conduct also motivated Ms. Unal to fi le a formal grievance, reque st a new supervisor, take a leave of absence, and relo cate to a new school. Ms. Un al’s work environment was also at least one contributing factor in the onset of her panic attacks. When viewed in the light most favorable to Ms. Unal, this evidence demonstrates she subjectively felt a “steady barrage” of harassing conduct. Although this is a close ca se, viewing Ms. Unal’s a llegations in context and considering the totality of the circumst ances, we conclude her hostile work environment claim should have survived summary judgment. The district court deemed the “turkey from Turkey” commen t the only overtly national-origin-based comment made directly to Ms. Unal. Bu t as explained above, we are persuaded Ms. Unal presented evidence of at least tw o other comments that could reasonably be viewed as demonstrating di rect hostility toward her ba sed on her national origin. These are Ms. Vandenkieboom’s inquiry as to why Ms. Unal was at the Christmas20 concert and her comment that Ms. Unal is “not from here” and would therefore not understand an American movie. The district court also concluded the remaining cultu rally insensitive comments were only obscurely racial and were not dir ected at Ms. Unal. Although we agree with the district court that many of these derogatory comments were directed at other individuals and nationalities, as we expl ained above, such evidence “may be considered in evaluating a [hostile-work-environment] claim.” Tademy , 614 F.3d at 1146. Ms. Unal offered evidence from which a reasonable jury could find that Ms. Vandenkieboom participated in and en couraged xenophobia in the workplace. Finally, the district court paid little h eed to Ms. Unal’s ev idence of facially neutral conduct, disregarding this eviden ce because Ms. Unal did not demonstrate sufficient opposition to the conduct. But Ms . Unal presented evidence showing she opposed Ms. Vandenkieboom’s co nduct by writing a letter to district administrators and filing a formal grievance. Moreover, wh en viewed in the context of the other evidence of hostility, a reas onable inference drawn from Ms. Vandenkieboom’s facially neutral but disparate treatment of Ms. Unal is that Ms. Vandenkieboom was motivated by national-origin-based animus toward Ms. Unal. Unlike the district court, we are not persuaded that our decision in Anderson v. Clovis Mun. Sch. , 265 F. App’x 699 (10th Cir. 2008) , dictates a different result. Not only is Anderson nonprecedential, 10th. Cir. R. 32.1, it is distinguishable. In that case, we affirmed summary judgment in fa vor of the defendants on a school teacher’s hostile-work-environment claim. Id. at 707. Although the plaintiff in Anderson , a21 minority school teacher, presented some evid ence similar to that which Ms. Unal has presented here—namely, that his principal subjected him to greater scrutiny, degraded him in front of other teachers, a nd required him to teach a heavier load than other teachers—the plaintiff in that case “failed to produce any evidence tending to show that anyone at [the school] ha rbored racial animus toward him.” Id. In contrast, Ms. Unal has presented evidence of co mments Ms. Vandenkieboom and a staff member made demonstrating animus toward Ms. Unal based on her national origin. Ms. Unal has also produced evidence showi ng Aspen Elementary’s pervasive culture of hostility and insensitivity towards forei gn-born individuals ge nerally. Therefore, unlike the plaintiff in Anderson , Ms. Unal has produced evidence supporting a reasonable inference that Ms . Vandenkieboom and others harbored animus based on Ms. Unal’s national origin. In sum, a reasonably jury could concl ude Ms. Unal was subject to unwelcome harassment based on her national origin a nd the pervasiveness of the harassment altered a term, condition, or privilege of her employment, thus creating an abusive work environment. Consequently, we revers e the district court’s grant of summary judgment in favor of the De fendants on this issue. B. Retaliation We turn now to Ms. Unal’s retaliati on claims, which she raises under Title VII, 42 U.S.C. § 2000e-3(a); 42 U.S.C. § 1981; the Equal Protection Clause of the Fourteenth Amendment; and the New Mexico Human Rights Act, N.M. Stat. Ann. § 28-1-7. But the Equal Protecti on Clause is not generally a suitable vehicle for raising22 a retaliation claim. See Teigen v. Renfrow , 511 F.3d 1072, 1086 (10th Cir. 2007) (“The mere illegality of a retaliatory action under a separate body of law does not make the resulting classification so illegitimate, irrational, or arbitrary as to violate the Equal Protection Clause.”) We therefore assess Ms. Unal’s re taliation claim under the three statutory provisions only. Under each of these provisions, a plaintif f may prove retaliation either through direct evidence “or by adhering to the burden-shifting framework of McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973).” Davis v. Unified Sch. Dist. 500 , 750 F.3d 1168, 1170 (10th Cir. 2014); see also Juneau v. Intel Corp. , 127 P.3d 548, 551 (N.M. 2006) (“For a claim of unlawful di scrimination [includi ng retaliation], this Court has used the methodology from McDonnell Douglas Corp. v. Green .”). Under this framework, a plaintiff must first make a prima faci e showing of retaliation by proving, “(1) [s]he engaged in protected activity; (2) [s]he su ffered an adverse employment action; and (3) there is a cau sal connection between [her] protected activity and the adverse employment action.” Davis , 750 F.3d at 1170; see also Charles v. Regents of New Mexico State Univ. , 256 P.3d 29, 33 (N.M. 2010) (“In order to establish a claim of retaliati on under the NMHRA, a plaintiff must demonstrate that (1) she engaged in protect ed activity; (2) she su ffered an adverse employment action; and (3) there is a causa l connection between these two events.” (internal quotation ma rks omitted)). If the plaintiff satisfies this burden, it is then the defendant’s responsibility to “come forward with a legitimate, non-re taliatory rationale for the adverse23 employment action.” Lounds v. Lincare , --- F.3d ---, 2015 WL 9299074, at *23 (ellipses and internal quotation marks omitt ed). If the defendant does so, the burden then shifts back to the plai ntiff to “show that the defenda nt’s proffered rationale is pretextual.” Id. “An employee may demonstrate pr etext by showing the employer’s proffered reason was so inconsis tent, implausible, incoherent , or contradictory that it is unworthy of belief.” Stover v. Martinez , 382 F.3d 1064, 1071 (10th Cir. 2004). Applying this framework to Ms. Unal’s three claims of retaliation, we conclude the district c ourt properly granted summary judgment on each claim. 1. Disciplinary Letters Ms. Unal claims, first, that the thr ee disciplinary letters Ms. Vandenkieboom issued in the spring of 2011 were submitted in retaliation for Ms. Unal’s letter to LAPS administration complaining of disc rimination. The district court deemed Ms. Unal’s letter to LAPS protected activ ity and Ms. Vandenkieboom’s disciplinary letters an adverse employment action. Bu t the district court granted summary judgment on this claim because Ms. Unal fa iled to show a causal connection between the protected activity and the disciplinary action. Specifica lly, the district court found Ms. Unal had failed to come forward with any evidence that Ms. Vandenkieboom was aware of the lette r to LAPS when she issued the di sciplinary letter s. On appeal, Defendants do not dispute that Ms. Unal has satisfied the protected-activity and adverse-action prongs of her pr ima facie burden, but agree w ith the district court that Ms. Unal failed to sati sfy the causation prong.24 A plaintiff establishes a causal conn ection between her protected conduct and the adverse employment action by proffering “evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action.” MacKenzie v. City & Cty. of Denver , 414 F.3d 1266, 1279 (10th Cir. 2005) (internal quotation marks omitted). Although evidence of “very close[]” temporal proximity will provi de compelling evidence of re taliation, and, in some cases, may be sufficient on its own, Piercy v. Maketa , 480 F.3d 1192, 11 98 (10th Cir. 2007), a plaintiff must also show that the person who engaged in the adverse employment action was aware of the protected activity, Clark Cty. Sch. Dist. v. Breeden , 532 U.S. 268, 273 (2001) (per curiam) (noting that some cases “accept mere temporal proximity between an employer’s knowledge of protected activity and an adverse employment action as sufficient evid ence of causality to establish a prima facie case” (emphasis added)); Petersen v. Utah Dep’t of Corr. , 301 F.3d 1182, 1188 (10th Cir. 2002) (“An employer’s action against an employee cannot be because of that employee’s protected opposition unles s the employer know s the employee has engaged in protect ed opposition.”). Here, although Ms. Unal dem onstrated temporal proxim ity of just four days between the submission of her letter to LAPS administration and Ms. Vandenkieboom’s issuance of the disc iplinary letters, at summary judgment, Ms. Unal failed to prove Ms. Vandenkieboom knew of th e protected activity when she issued the discip linary letters. Inst ead, Ms. Unal argued th at close temporal proximity alone was enough to show causation. For the firs t time on appeal, Ms. Unal25 has produced evidence she argues demonstr ates Ms. Vandenkieboom was, in fact, aware that Ms. Unal had sent LAPS ad ministration a letter complaining of discrimination when she issued the discipli nary letters. Specifi cally, Ms. Unal relies on the deposition testimony of Assistant Superintendent Dean , which Ms. Unal argues shows Ms. Dean spoke with Ms. Vande nkieboom about Ms. Unal’s letter to LAPS before Ms. Vandenkieboom issu ed the disciplinary letters. Regardless of whether Ms. Dean’s deposition testimony demonstrates knowledge, Ms. Unal failed to present this evid ence to the district court in her opposition to summary judgment. Althou gh Ms. Dean’s deposition testimony was made part of the record in th e district court, at summary judgment, Ms. Unal failed to cite to the “particular part s” of the record that supported her causation argument. See Fed. R. Civ. P. 56(c)(1)(A) (“A party asserti ng that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record . . .”). The district court was therefore under no obligation to parse through the record to find the uncited materials. See id. 56(c)(3) (“The court need consider only the cited materials.”). Because Ms. Unal’s summar y judgment evidence did not demonstrate the requisite knowledge, she failed to prove causation, and we must affirm the district court’s grant of summary judgment to Defendants on this claim. 2. Relocation to Portable Classroom Ms. Unal next argues she engaged in protected activity by filing a formal grievance with the district and Defendants retaliated against her by barging into her classroom unannounced, telling her Ms . Vandenkieboom would remain her26 supervisor, and announcing her class would be immediately relocated to a portable classroom outside the building. The district court agreed Ms. Unal’s formal grievance was a protected activity and Ms. Unal had shown a causal nexus. But the court concluded Defendants’ conduct did not constitute a materially adverse employment action. The Supreme Court in Burlington Northern & Santa Fe Ry. Co. v. White defined a materially adverse action as one that might “di ssuade[] a reasonable worker from making or supporting a charge of di scrimination.” 548 U.S. 53, 68 (2006). The Court intentionally “phrase[d] the standard in general terms be cause the significance of any given act of retaliati on will often depend upon the particular circumstances.” Id. at 69. The Court stressed the importance of context. Id. By way of example, the Court explained that although a “change in an employee’s work schedule may make little difference to ma ny workers,” it could “matter enormously to a young mother with school-age children.” Id. Likewise, “[a] superviso r’s refusal to invite an employee to lunch is normally trivial, a non actionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination.” Id. Notwithstanding this cont ext-specific approach, a pl aintiff must nonetheless demonstrate the advers e action was material. Id. at 69–70. The materiality requirement reinforces the antiretaliation statutes’ fo cus on “prevent[ing] employer interference with unfettered access to [the statutes’] re medial mechanisms,” and does27 so by “prohibiting employer actions that are likely to deter victims of discrimination from complaining to the EEOC, th e courts, and their employers.” Id. at 68 (internal quotation marks omitted). Thus , “petty slights, minor anno yances, and simple lack of good manners” will gene rally not be material. Id. Returning to the facts before us, we c onsider whether a reasonable jury could conclude that Defendants’ conduct in interrupti ng Ms. Unal’s classroom unannounced, reneging on their commitment to provide her a new supervisor, and ordering her to relocate to the portable classroom could deter a reasonable employee from engaging in protected conduct. We ha ve yet to address whether a workspace relocation may support a retaliation claim in light of the re laxed adverse-action standard set forth in Burlington Northern ; at the very least the parties have not directed us to such a case a nd our research has found none. 6 We did, however, confront such a situation in a case that predates Burlington Northern . In Stover v. Martinez , we ruled that an employer’s decision to move plaintiff to an isolated office

6 We have, however, addressed whether an office relocation constituted a materially adverse action in the context of a discrimination clai m and concluded that it did not. Nettle v. Cent. Okla. Am. Indian Health Council, Inc. , 334 F. App’x 914, 926 (10th Cir. 2009). But because Burlington Northern did not alter the adverseaction standard for discrimination claims, see Piercy v. Maketa , 480 F.3d 1192, 1203 (10th Cir. 2007) (exp laining that although Burlington Northern relaxed the standard for proving adverse action in the retaliati on context, “it had no similar effect on our discrimination jurisprudence”), Nettle provides little guidance for our decision in this case. Indeed, unlike adverse actions in the retaliation context, which broadly include all conduct that would dete r a reasonable employee fro m engaging in protected activities, adverse actions in the discrimination context ar e limited to actions “that affect employment or alter th e conditions of the workplace,” including “hiring, firing, failing to promote, reassi gnment with significantly diff erent responsibilities, or a decision causing a significan t change in benefits.” Id.28 did not constitute a material ly adverse action for purposes of retaliation, even when that conduct was aggregated with other ne gative actions, including plaintiff’s receipt of low-level work and lower-than-norma l employment reviews and defendant’s failure to promote plaintiff or award her anticipated recognition. Stover , 382 F.3d at 1075. Other circuits have addresse d workspace relocations since Burlington Northern , and most have ruled that such change s were not materially adverse in the given context. See, e.g. , Roncallo v. Sikorsky Aircraft , 447 F. App’x 2 43, 245–46 (2d Cir. 2011) (“[A] temporary move from an office to a cubicle, consistent with [defendant’s] office allocation policy . . . does not constitute a materially adverse employment action.”); Fercello v. Cty. of Ramsey , 612 F.3d 1069, 1079 (8th Cir. 2010) (“[Plaintiff] has offe red no evidence that the relo cation of her office rendered her unable to complete her duties or that it otherwise interfere d with her employment to an extent that would deter a reasonabl e person from making a harassment claim.”); see also Lockridge v. Univ. of Me. Sys. , 597 F.3d 464, 473 (1st Cir. 2010) (ruling that denial of request for better office space wa s not a materially adve rse action because it “left her in no worse a position than that held by similarly situated faculty members”). We acknowledge that in some cases, both pre- and post- Burlington Northern , courts have held that a workspace relocation was materially adverse. See, e.g. , Novak v. England , 316 F. App’x 671, 673 (9th Cir. 2009) (reversing summary judgment where there was “a genuine issue of material fact as to whether [p laintiff] suffered an29 adverse employment action when he was . . . reassigned to perform menial work that fell below his job classifica tion and relocated to an isol ated overflow area” (citation omitted)); Signer v. Tuffey , 66 F. App’x 232, 236 (2d Ci r. 2003) (concluding that relocating plaintiff’s office to “an out-o f-the-way office next to the building’s garbage collection area,” together with ev idence of a reduction in plaintiff’s work responsibilities “was an adverse change in [plaintiff’s] employment conditions”); Chuang v. Univ. of Ca l. Davis, Bd. of Tr. , 225 F.3d 1115, 1125 (9th Cir. 2000) (ruling that “the relocation of [plaintif fs’] laboratory space unquestionably qualifies as an adverse employment acti on” where the relocation disr upted plaintiffs’ research, caused them to lose experi mental subjects and gran ts, and resulted in broken equipment). But in each of these cases, eith er the relocation itse lf or other adverse conduct done in concert with the relocat ion negatively altered the employees’ work conditions or interfered with their ab ility to complete employment duties. In this case, Ms. Unal ha s failed to come forward with evidence showing her relocation to the portable classroom ha d such a disruptive effect. Although Defendants made the decision to move her classroom shortly before the end of the school year, the record demonstrates that Ms. Unal did not, in fact, move until the school year ended. Thus, the move did not interfere with her teaching responsibilities. Ms. Unal has likewise failed to show that , apart from its location, the portable classroom was in any way inferior to a regular classroom or that teaching in the detached location would undermine her ability to perform he r work duties. Nor30 has she shown that the move was contrary to school policy or that Defendants did not similarly relocate other teachers. Although Ms. Unal has demonstrated th at Defendants announc ed their decision to relocate her classroom in concert with other allegedl y retaliatory conduct—i.e., entering her classroom unannounced and re neging on the agreement to assign her a new supervisor—we are not convinced this conduct constituted anything more than “petty slights, minor annoyances, and simple lack of good manners.” Burlington N. , 548 U.S. at 68; see A Soc’y Without A Name v. Virginia , 655 F.3d 342, 350 (4th Cir. 2011) (rejecting a retaliation claim based on a reneged promise because “retracting a gratuitous promise does not am ount to a discriminatory act or an adverse action”); Stewart v. Miss. Transp. Comm’n , 586 F.3d 321, 332 (5th Cir. 2009) (concluding that plaintiff’s reassignment to a new supervis or was not a materi ally adverse action because “[h]er duties were unchanged, and there is no evidence that she suffered a diminution in prestige or change in standing among her co-workers”). Because Ms. Unal has not shown Defendants’ c onduct would result in any negative consequences beyond mere in conveniences, we cannot say th is conduct would deter a reasonable employee from engaging in protect ed activity. We th erefore affirm the district court’s grant of su mmary judgment on this claim. 3. Failure to Accept Ms. Unal ’s Response to Notice of Intent to Rehire Finally, Ms. Unal challenges the dist rict court’s summary judgment on her claim that Defendants reta liated against her for fi ling the EEOC charge of discrimination by initially rejecting her respons e to the notice of intent to rehire. The31 district court concluded th at although Ms. Unal’s EEOC charge was a protected activity and Defendants’ withdrawal of the offer to renew Ms. Unal’s teaching contract was a materially adverse action, Ms. Unal failed to prove causation. Because Ms. Unal filed her EEOC action six months before Defendants rejected her response to the notice of intent to rehire, the dist rict court ruled Ms. Unal could not rely on temporal proximity alone to show causation. See Anderson v. Coors Brewing Co. , 181 F.3d 1171, 1179 (10th Cir. 1999) (“[U]nless the termination is very closely connected in time to the protected activity, the plaint iff must rely on additional evidence beyond temporal proximity to establish causation.”); Richmond v. ONEOK,
Inc. , 120 F.3d 205, 209 (10th Ci r. 1997) (ruling that a thr ee month period is too long to infer causation from temporal proxim ity). And because Ms. Unal provided no other evidence of causation, the district c ourt ruled she failed to satisfy her prima facie burden as to this claim. On appeal, Ms. Unal contends the clear discrepancy between the date reflected on the notice of intent and the postmark date would have made it obvious to Defendants that she timely responded to th e notice. Thus, she reasons their timeliness excuse is fabricated and demonstrates a causal connection. But even if the belated postmark date is sufficient to show causation, Defendants have provided a nonretaliatory justification for the advers e action, and Ms. Unal has not proven that justification is mere pretex t. Specifically, Defendants argue that when they made the initial decision to reject Ms . Unal’s response, they de termined the response was untimely based solely on the date listed on th e notice of intent to rehire itself and32 were not aware it had been mailed days later. As soon as Ms. Unal informed Defendants of the late postmar k date, they rescinded the termination and renewed her contract. Defendants thus argue that they did not fabricate the timeliness issue; instead, they argue it was ba sed on an honest mistake. Ms. Unal has not produced evidence rebu tting Defendants’ assertion that they were unaware of the late postmark date; nor has sh e shown that Defendants’ proffered rationale was otherwise “so inc onsistent, implausibl e, incoherent, or contradictory that it is unworthy of belief.” Stover, 382 F.3d at 1071. Ms. Unal has therefore failed to show that the decision to reject her acceptance letter was caused by anything other than a cler ical error. Accordingly, b ecause Ms. Unal has not shown Defendants’ justification was mere pretext, we affirm th e district court’s grant of summary judgment on this issue. IV. CONCLUSION For the reasons stated above, we REVERSE the district court’s grant of summary judgment in favor of Defendant s on Ms. Unal’s hostile-work-environment claim, but we AFFIRM summary judgment on the retaliation claims. Entered for the Court
Carolyn B. McHugh Circuit Judge