* After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered 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not binding precedent, except under the doctrines of law of the case, res judicata,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

November 4, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

KAZADI BIG MUSUNGAYI,

Plaintiff-Appellant,

v.

WHIRLPOOL CORPORATION,

Defendant-Appellee.

No. 10-5060

(D.C. No. 4:08-CV-00427-GKF-TLW)

(N.D. Okla.)

ORDER AND JUDGMENT*

Before TACHA, ANDERSON, and KELLY, Circuit Judges.

Kazadi Big Musungayi sued his former employer, Whirlpool Corporation,

alleging a hostile work environment under Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e to 2000e-17. The district court granted Whirlpool’s

motion for summary judgment, and exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm.
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I

Mr. Musungayi is an African-American native of the Democratic Republic

of the Congo. He was hired by Whirlpool in July 2005 and soon complained of

coworkers exhibiting “hostile behaviors” toward him. R. Vol. 1 at 82. Whirlpool

reassigned Mr. Musungayi to a job operating a 600-ton press, which satisfied him

for a while, but ten months later he sent a letter to a member of Congress

complaining of “systematic silent oppression.” Id. at 192. According to

Mr. Musungayi, coworkers ignored him, took long breaks, and “us[ed] electronics

devices to communicate with outside people.” Id. Whirlpool investigated the

letter and learned from Mr. Musungayi that his job-partner, Don Kinsey, preferred

training Caucasians. Whirlpool could not substantiate the claim, however, and

finding no other evidence of discrimination or harassment, took no further action.

A year later, though, Mr. Musungayi filed a charge of discrimination with

the Equal Employment Opportunity Commission (EEOC). He alleged a hostile

work environment created in part by a coworker named Keenan Berry, who was

“waging a psychological warfare.” Id. at 193. Mr. Musungayi noted that his past

complaints to Whirlpool did not deter Berry from harassing him, and he thus

suspected a “White supremacist agenda.” Id. Mr. Musungayi told Donna Griffin,

Whirlpool’s employee relations manager, that Berry “interrupt[ed] employees

working with [him] on the 600 ton press in an effort to ‘intoxicate’ others against

him.” Id. at 155. Griffin interviewed several other employees and supervisors
-3-

but again found no evidence of discrimination or harassment. Consequently,

Whirlpool took no further action on these allegations either.

In February 2008, Mr. Musungayi pursued his discrimination charge in the

United States District Court for the Eastern District of Michigan. He alleged an

equal protection violation, negligence, and “endangerment to the human factor.” 

Id. at 13. More specifically, he averred that Whirlpool failed to protect him from

harassing coworkers, failed to resolve the “crisis,” overworked him, underpaid

him, and “tarnished [his] reputation.” Id. For all this, Mr. Musungayi sought

money damages totaling $250,000.00. The Michigan court eventually transferred

the case to the Northern District of Oklahoma, which dismissed all but the

Title VII claim. 

In the meantime, Mr. Musungayi lodged ten more grievances with

Whirlpool, complaining that coworkers were making rowing gestures, causing

him to feel unsafe by spying on him, asking if the Congo was “Dark Africa,” and

giving him “insolent gazes.” Id. at 155-57. In addition to other complaints,

Mr. Musungayi also felt “emotionally hurt” when a coworker slammed a tote bag

and told him to fill it, id. at 117, and he reported that an employee asked why he

had been assigned “such a dumb job,” id. at 200. Whirlpool investigated each

incident but found no discrimination or harassment. The company disciplined

Mr. Musungayi, however, for later confronting and intimidating the employee

who allegedly asked why he had been given a dumb job.
-4-

In September 2009, Mr. Musungayi was fired for insubordination. On

December 9, 2009, he responded with a second charge of discrimination, alleging

retaliatory dismissal for filing this lawsuit. After receiving his right-to-sue letter,

Mr. Musungayi moved to consolidate his retaliation claim with his pending

hostile-work-environment claim. The district court denied the motion, however,

construing it as an untimely and improper motion to amend the complaint. The

court then granted Whirlpool’s pending motion for summary judgment because

there was no evidence of discrimination or harassment on the basis of race or

national origin. 

Mr. Musungayi now appeals the court’s grant of summary judgment.

II

We review the grant of summary judgment de novo, applying the same

legal standard as the district court. Jones v. Okla. City Pub. Sch., 617 F.3d 1273,

1277 (10th Cir. 2010). “Summary judgment is proper only if ‘there is no genuine

issue as to any material fact’ and ‘the movant is entitled to judgment as a matter

of law.’” Id. (quoting Fed. R. Civ. P. 56(c)). In conducting our review, we

construe the evidence and the reasonable inferences from it in the light most

favorable to the non-moving party, in this case, Mr. Musungayi. See id.

To survive 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
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pervasive to alter the conditions of . . . employment and create an abusive

working environment.” Sandoval v. City of Boulder, Colo., 388 F.3d 1312, 1327

(10th Cir. 2004) (quotation omitted). A plaintiff must also submit evidence

allowing a jury to infer that he was harassed due to his race or national origin. Id.

The district court found that Mr. Musungayi failed to demonstrate either

that any alleged harassment was sufficiently severe, pervasive, or objectively

offensive as to create an abusive working environment, or that he was harassed

because of his race or national origin. We agree with this assessment. There was

no evidence to sustain Mr. Musungayi’s belief that the difficulties he experienced

at Whirlpool resulted from a discriminatory animus based on race or national

origin. Instead, the record indicates that Mr. Musungayi’s allegations were

premised almost exclusively on his subjectively held beliefs and assumptions.

For instance, Mr. Musungayi told a coworker he was from the Congo and

was asked, “Is that what they call dark Africa?” R. Vol. 1 at 96. Mr. Musungayi

took offense and walked away. But another coworker later told Mr. Musungayi,

“If you knew the history of this country, you would understand that that part of

the world was called dark Africa.” Id. at 122. Given this context, there was

nothing severely offensive or inherently discriminatory about the question, and

we can infer nothing discriminatory from the reference.

Mr. Musungayi also alleged that Kinsey preferred to train Caucasians over

African-Americans. He explained that Kinsey was once involved in an altercation
-6-

with another employee and afterwards said, “Well, it’s just a cultural issue and I

know at my church in the past, they used to not accept black people.” Id. at 96. 

On another occasion Mr. Musungayi heard Kinsey say he taught Sunday school

students “that before loving those outside of you, you get to love first those

around you here.” Id. at 99. Based on these two statements, Mr. Musungayi

asserts that Kinsey fosters a racial bias. But these statements could not support a

factual finding that Whirlpool’s work environment was so permeated with

discriminatory intimidation, ridicule, and insult as to render it abusive, and they

do not demonstrate that Kinsey held a discriminatory intent. Moreover, these

comments were not directed at Mr. Musungayi and did not disadvantage him. 

To the contrary, Mr. Musungayi acknowledged that Kinsey trained him, and, in

fact, he actually wrote a letter to Whirlpool’s management, praising Kinsey for

training him. Perhaps Mr. Musungayi found Kinsey’s remarks offensive, but

“Title VII . . . does not set forth a general civility code.” Burlington N. & Santa

Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quotation omitted).

Nor did Berry’s conduct constitute actionable harassment. See Chavez v.

New Mexico, 397 F.3d 826, 832 (10th Cir. 2005) (harassment must be racial or

stem from racial animus). According to Mr. Musungayi, Berry’s harassment

consisted of walking around Mr. Musungayi’s workspace, throwing gloves into

the press and shutting it off, spreading rumors that Mr. Musungayi was royalty,

and telling Kinsey that he–Berry–did not trust Mr. Musungayi. Berry also tried to
-7-

avoid working with Mr. Musungayi and even reported that Mr. Musungayi was

harassing him. But none of this conduct can be attributed to a discriminatory

animus. See Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994) (“General

harassment if not racial or sexual is not actionable.”). And apart from this alleged

conduct, Mr. Musungayi conceded that he never heard Berry make any derogatory

remarks about anyone’s race or national origin. See R. Vol. 1 at 104. 

We could continue to discuss Mr. Musungayi’s allegations, but we are

satisfied that they do not point to an actionable injury. And in any event, his

appellate brief fails to articulate any reasoned argument, supported by pertinent

legal authority, suggesting that summary judgment was inappropriate. Instead,

Mr. Musungayi disputes the characterization of his problems as personality

conflicts and lobs new allegations impeaching the integrity of defense counsel. 

We recognize that Mr. Musungayi is proceeding pro se, and we afford his

materials a “solicitous construction” accordingly. See Van Deelen v. Johnson,

497 F.3d 1151, 1153 n.1 (10th Cir. 2007). Nevertheless, we have “repeatedly

insisted that pro se parties follow the same rules of procedure that govern other

litigants.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840

(10th Cir. 2005) (quotation omitted). This means that “[u]nder [Federal Rule of

Appellate Procedure] 28, which applies equally to pro se litigants, a brief must

contain more than a generalized assertion of error, with citations to supporting

authority. When a pro se litigant fails to comply with that rule, we cannot fill the
-8-

void by crafting arguments and performing the necessary legal research.” Id.

at 841 (ellipsis, citation, brackets and quotations omitted).

As a corollary, we cannot consider Mr. Musungayi’s allegations of

retaliatory discharge, as Mr. Musungayi failed to properly present that claim to

the district court. See Tele-Commc’ns, Inc. v. Comm’r, 104 F.3d 1229, 1233

(10th Cir. 1997) (“[A]n issue must be presented to, considered and decided by the

trial court before it can be raised on appeal.” (brackets and quotations omitted)). 

Mr. Musungayi attempted to add a retaliatory discharge claim to his complaint by

moving to consolidate it with his hostile-work-environment claim, but the district

court denied his request as untimely and improper, see Dkt. # 87 (minute order

denying motion for consolidation), and never considered his allegations,

see R. Vol. 1 at 221 n.1. Although Mr. Musungayi criticized that ruling in his

notice of appeal, see id. at 226, we doubt his comments adequately preserved for

appeal the question of whether the court erred in denying leave to amend. Yet

even if he did wish to appeal the ruling, Mr. Musungayi failed to challenge it in

his opening brief. Instead, he simply asserted in a supplemental brief that the

district court misconstrued the motion for consolidation as seeking to amend the

complaint. Under these circumstances, we conclude that Mr. Musungayi failed to

preserve the issue for appeal. See Bronson v. Swensen, 500 F.3d 1099, 1104-05

(10th Cir. 2007) (finding forfeiture where appellant failed to adequately raise

argument in opening brief on appeal). 
-9-

III

The judgment of the district court is AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge