UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

MARCIA L. JACKSON, 

 Plaintiff - Appellant, 

v. 

PARK PLACE CONDOMINIUMS 

ASSOCIATION, INC., 

 Defendant - Appellee. 

No. 15-3067 

(D.C. No. 2:13-CV-02626-CM) 

(D. Kansas) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before KELLY, LUCERO, and McHUGH, Circuit Judges. 

_________________________________ 

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

unanimously that oral argument would not materially assist in 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. 

Marcia L. Jackson, proceeding pro se,1

 filed suit against defendant Park Place 

Condominiums Association, Inc. (Park Place), seeking damages for alleged violations 

 *

 This order and judgment is not binding precedent, except under the doctrines 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. 

1

 As Ms. Jackson is proceeding pro se, we construe her pleadings liberally and 

hold them to a less stringent standard than formal pleadings drafted by an attorney. 

FILED 

United States Court of Appeals

Tenth Circuit 

July 28, 2015

Elisabeth A. Shumaker 

Clerk of Court
2 

of her civil rights. Specifically, Ms. Jackson claims that Park Place discriminated 

against her on the basis of her race during her tenancy in one of its condominium 

units. The district court granted summary judgment in favor of Park Place and, for 

the reasons that follow, we affirm. 

I. BACKGROUND 

Ms. Jackson is an African-American woman who moved into the Park Place 

Condominiums in May of 2011. Ms. Jackson did not own a unit, but instead rented a 

condominium from Jake Hurley from April 2011 to February 2012. The 

condominium complex is governed by a Home Owners’ Association (HOA). 

During Ms. Jackson’s tenancy at Park Place, there were a number of disputes 

between Ms. Jackson and some of her neighbors about the noise coming from her 

unit. One of her neighbors, Marcia Grazia Serra, lived directly below Ms. Jackson. 

Ms. Grazia Serra filed a lawsuit against Ms. Jackson in the District Court of Johnson 

County, Kansas, that resulted in a default judgement stating, Ms. Jackson “regularly 

and intentionally engaged in or permitted offensive, improper and/or unlawful 

activities with substantial certainty that such activities will interfere with [Ms. Grazia 

Serra’s] use and enjoyment of her property.” 

The HOA had no involvement in the lawsuit. And although HOA 

representatives attempted to mediate the noise disputes between Ms. Jackson and her 

neighbors, the HOA did not fine or reprimand Ms. Jackson for the noise coming from 

 

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). We do not, however, 

construct arguments or otherwise advocate on her behalf. Id.
3 

her unit. Ms. Jackson never attended an HOA meeting or presented the HOA with a 

written grievance. 

Ms. Jackson has now filed a lawsuit claiming that Park Place and members of 

its HOA Board of Directors (Board) illegally discriminated against her on the basis 

of her race. Park Place moved for summary judgment, arguing that Ms. Jackson could 

not produce sufficient evidence to persuade a jury that it discriminated against Ms. 

Jackson because of her race. 

In opposition to summary judgment, Ms. Jackson submitted her own testimony 

through an affidavit and two declarations, provided a police report of an incident at 

the condominium, produced statements from her friend, Garla Williams, and her 

daughters, Jaquita and Kedra Jackson,2

 and presented some documents related to her 

alleged damages. 

Ms. Jackson’s affidavit highlighted a handful of incidents she claimed 

illustrated discriminatory activity and made general allegations that the HOA had 

harassed her. Specifically, she claims that (1) it took three months for her name to be 

placed on her mailbox, and shortly after it was placed there an unidentified actor took 

her name plate down and placed it on the ground nearby; (2) it took more than three 

months for her name to be displayed on the outside marquee of the building; 

(3) unidentified Board members accused Ms. Jackson of playing “loud black music,” 

 2

 In a case involving multiple individuals with the same last name, we would 

ordinarily use first names or initials for ease of identification. See, e.g., United States 

v. Hill, 786 F.3d 1254, 1257 n.1 (10th Cir. 2015). Because we rarely refer to Jaquita 

Jackson and Kedra Jackson, we instead refer to the plaintiff as Ms. Jackson and use 

full names when referring to her daughters. 
4 

turning her TV volume up too high, speaking too loudly, flushing her toilet too often, 

and making too much noise walking around the condominium; (4) her car was 

vandalized; and (5) her landlord asked her to move out at the HOA’s request. In one 

of her declarations, Ms. Jackson stated that her landlord, Mr. Hurley, believed that 

these incidents occurred because of her race. Ms. Jackson also declared that she 

informed Marcia Cooper, a Board member, about the problem with her mailbox. The 

statements provided by Ms. Williams and both of Ms. Jackson’s daughters repeated 

these allegations.3

At some point during her tenancy at Park Place, Ms. Jackson had contacted the 

police and complained that she was a victim of harassment and a hate crime. The 

police report she produced to oppose summary judgment contained the officer’s notes 

about statements made by Ms. Jackson during the officer’s investigation of Ms. 

Jackson’s complaint. Ms. Jackson’s statements reiterated the allegations she later 

included in her affidavit. 

The district court granted summary judgment to Park Place. It held that Ms. 

Jackson had not presented any direct evidence of housing discrimination and that she 

had failed to present enough evidence to make out a prima facie case of hostile 

housing environment, as required by either 42 U.S.C. §§ 1981, 1982, or the Fair 

Housing Act, 42 U.S.C. § 3604(h). 

 3

 Kedra Jackson also claimed that hallway lights were turned off when her 

mother moved into the apartment. Ms. Jackson dropped her claims about this incident 

by the time of the Pretrial Order. As it was not addressed by the district court and Ms. 

Jackson has not referenced this incident on appeal, we do not consider it further. 
5 

Ms. Jackson filed a “Motion to Alter and Amend Summary Judgment” after 

the district court granted summary judgment in favor of Park Place. Park Place did 

not timely respond, and the district court issued an order to show cause why Park 

Place had failed to file a response to the motion. Counsel for Park Place explained 

that the failure was due to an error with the court’s electronic filing system but that a 

timely response had been mailed to Ms. Jackson. The district court exercised its 

discretion to consider Park Place’s response. 

Ms. Jackson now appeals. 

II. DISCUSSION 

 “We review de novo a district court’s grant of summary judgment, applying 

the same legal standard as applies in the district court.” Emcasco Ins. Co. v. CE 

Design, Ltd., 784 F.3d 1371, 1378 (10th Cir. 2015). 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). 

In reviewing a summary judgment ruling, we must “view the evidence and draw all 

reasonable inferences therefrom in the light most favorable to the party opposing 

summary judgment.” Reinhart v. Lincoln Cty., 482 F.3d 1225, 1229 (10th Cir. 2007) 

(internal quotation marks omitted). To the extent that a nonmoving party offers 

affidavits to oppose summary judgment, “[a]ffidavits must contain certain indicia of 

reliability.” Ellis v. J.R.’s Country Stores, Inc., 779 F.3d 1184, 1201 (10th Cir. 2015). 

“Unsubstantiated allegations carry no probative weight in summary judgment 

proceedings . . . [they] must be based on more than mere speculation, conjecture, or 
6 

surmise.” Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004) (citation 

omitted). 

Ms. Jackson does not identify the federal statute she relies on to pursue her 

housing discrimination claim. Therefore, like the district court, we assume she bases 

her claim on either 42 U.S.C. § 1981, which prohibits racial discrimination in the 

making, performance, modification, and termination of contracts, see Hampton v. 

Dillard Department Stores, Inc., 247 F.3d 1091, 1101–02 (10th Cir. 2001), 42 U.S.C. 

§ 1982, which prohibits racial discrimination in the sale and rental of property, or 42 

U.S.C. § 3604(b) of the Fair Housing Act (FHA), which prohibits discrimination 

against any person “in the terms, conditions, or privileges of sale or rental of a 

dwelling, or in the provision of services or facilities in connection therewith because 

of race, color, religion, sex, familial status, or national origin.” 

Ms. Jackson argues that Park Place created a hostile housing environment. 

When analyzing claims of hostile housing environment, we have looked to decisions 

addressing hostile work environment claims for guidance. Asbury v. Brougham, 866 

F.2d 1276, 1279 (10th Cir. 1989). To make out a hostile work environment case, a 

plaintiff must prove (1) she is a member of a protected group, (2) she was subject to 

unwelcome harassment, (3) the harassment was based on her membership in the 

protected class, and (4) the harassment was so severe, pervasive, or abusive that it 

altered the conditions of employment. See Harsco Corp. v. Renner, 475 F.3d 1179, 

1186 (10th Cir. 2007). “Applied to housing, a claim is actionable when the offensive 

behavior unreasonably interferes with use and enjoyment of the premises.” Honce v. 
7 

Vigil, 1 F.3d 1085, 1090 (10th Cir. 1993). Trivial or isolated manifestations of a 

discriminatory environment are not actionable. Id. (citing Meritor Savings Bank v. 

Vinson, 477 U.S. 57, 65 (1986) (hostile work environment); Hicks v. Gates Rubber 

Co., 833 F.2d 1406, 1414 (10th Cir. 1987) (hostile work environment)). Rather, 

harassing conduct must be severe or pervasive. Id. 

Although as an African-American, Ms. Jackson is a member of a protected 

group, she cannot establish that she suffered harassment because of her membership 

in that group. She has not claimed that Park Place or any of its Board members used 

any ethnic or racial slurs against or around her, or that any of the alleged harassment 

directly referenced her race. While she claims that an unidentified HOA member 

accused her of playing “loud black music,” we agree with the district court that there 

is nothing in the record indicating that her neighbors and the HOA’s concerns related 

to the type of music she played. Rather, Ms. Grazia Serra’s lawsuit complained of the 

volume and the time of day Ms. Jackson played the music. 

The only other direct evidence of racial discrimination Ms. Jackson offers is 

her allegation that her landlord, Mr. Hurley—who is not an HOA Board member—

believed her problems at the condominium were because of her race. But even if 

Mr. Hurley’s opinion could support her claim, Ms. Jackson did not offer Mr. 

Hurley’s sworn statement. Instead, she provided her own declaration purporting to 

convey his opinion about the motives of third parties. This is inadmissible hearsay 

and cannot be used to defeat summary judgment. See Johnson v. Weld Cty., Colo., 

594 F.3d 1202, 1208–10 (10th Cir. 2010) (holding that a plaintiff failed to make out a 
8 

Title VII claim of sex discrimination on the basis of direct evidence because the 

evidence was inadmissible hearsay); Wright-Simmons v. City of Okla., 155 F.3d 

1264, 1268 (10th Cir. 1998) (“It is well settled in this circuit that we can consider 

only admissible evidence in reviewing an order granting summary judgment.”). 

Similarly, Ms. Jackson’s statements contained in the police report constitute 

inadmissible hearsay that cannot be used to defeat summary judgment.4 See United 

States v. Caraway, 534 F.3d 1290, 1295 (10th Cir. 2008) (“Ordinarily a prior 

statement by a testifying witness cannot be used at trial. If offered for the truth of the 

matter asserted, it is inadmissible hearsay unless” an exception to the hearsay rule 

applies.). 

Even assuming Ms. Jackson could show that Park Place’s conduct was 

motivated by race, she cannot show the harassment altered the conditions of her 

housing by unreasonably interfering with her use and enjoyment of the premises. 

Whether an environment is illegally hostile or abusive “can be determined only by 

looking at all the circumstances, and factors may include the frequency of the 

discriminatory conduct; its severity; whether it is physically threatening or 

humiliating, or a mere offensive utterance; and whether it unreasonably interferes 

with [the use and enjoyment of the premises].” DiCenso v. Cisneros, 96 F.3d 1004, 

1008 (7th Cir. 1996). Ms. Jackson has identified five incidents of unwelcome 

conduct: (1) it took three months for her name to be placed on her mailbox; (2) her 

 4

 Nothing in the police report indicates that the officer spoke with anyone other 

than Ms. Jackson or that the officer otherwise investigated Ms. Jackson’s harassment 

allegations. 
9 

name plate was ripped off her mailbox shortly thereafter; (3) it took three months for 

her name to be placed on the outside marquee of the building; (4) the “Deville” decal 

on her Cadillac was stolen; and (5) Ms. Grazia Serra complained about noise coming 

from Ms. Jackson’s unit.5

 

We agree with the district court that these facts do not rise to the level of 

unlawful harassment. While there may have been a delay in placing Ms. Jackson’s 

name on her mailbox and on the marquee, Ms. Jackson has offered no evidence that 

the HOA’s delay in her case was any longer than it was for other residents, that the 

HOA delayed because of her race, that a three-month delay is unreasonable, or even 

that her lease with Mr. Hurley and his arrangement with the HOA made it responsible 

for placing her name in these locations. Nor do the noise complaints demonstrate 

harassment. According to the lawsuit, Ms. Jackson unreasonably interfered with Ms. 

Grazia Serra’s use and enjoyment of her property. Restricting Ms. Jackson to lawful 

noise levels does not unreasonably alter the conditions of her housing. 

Ms. Jackson also claims the removal of her nameplate and the theft of the 

“Deville” decal from her car constitute direct incidents of harassment. Yet she offers 

no evidence of when or where the decal was stolen or how or why the nameplate was 

removed. Even assuming this conduct was racially motivated, she has failed to show 

 5

 While Ms. Jackson also alleges that Mr. Hurley asked her to move out at the 

HOA’s request, Ms. Jackson has again failed to offer admissible evidence of this fact. 

Ms. Jackson’s testimony about what Mr. Hurley told her is inadmissible hearsay and 

cannot be considered at summary judgment. See Johnson v. Weld Cty., Colo., 594 

F.3d 1202, 1208–10 (10th Cir. 2010); Wright-Simmons v. City of Okla. City, 155 F.3d 

1264, 1268 (10th Cir. 1998). 
10 

that the HOA was responsible for it. Moreover, these isolated and relatively minor 

incidents over months of time are insufficient to establish a hostile housing 

environment. See Morris v. City of Colo. Springs, 666 F.3d 654, 665–69 (10th Cir. 

2012) (holding three isolated incidents combined with allegations that a supervisor 

yelled at the plaintiff about the quality of her work, without context for the 

comments, did not establish a hostile work environment); Penry v. Fed. Home Loan 

Bank of Topeka, 155 F.3d 1257, 1262–63 (10th Cir. 1998) (holding that summary 

judgment in favor of the defendant was properly granted on a hostile work 

environment claim where a plaintiff complained of isolated incidents that occurred 

over a four-year period, most of which did not occur because of her sex); Ellis v. 

CCA of Tenn. LLC, 650 F.3d 640, 648–49 (7th Cir. 2011) (holding three isolated 

incidents that were not “extremely serious” did not support a hostile work 

environment claim). For these reasons, the district court properly granted summary 

judgment to Park Place. 

Last, Ms. Jackson takes issue with the district court’s consideration of Park 

Place’s response to her Motion to Alter and Amend Summary Judgment. It is unclear 

whether she is arguing that the district court’s favorable ruling displayed judicial bias 

towards Park Place or that the district court exceeded its discretion in considering the 

late response. We reject both arguments. “Adverse rulings alone do not demonstrate 

judicial bias.” Bixler v. Foster, 596 F.3d 751, 762 (10th Cir. 2010). And district 

courts are entitled to a great deal of discretion in deciding whether to consider 

untimely motions. See Essence, Inc. v. City of Fed. Heights, 285 F.3d 1272, 1288 
11 

(10th Cir. 2002). The district court did not exceed its discretion in considering the 

untimely response here, particularly because Park Place’s delay was caused by 

procedural irregularities with the court’s electronic filing process. 

III. CONCLUSION 

For the foregoing reasons, we AFFIRM the decision of the district court 

granting Park Place summary judgment. 

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge