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 pane l has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Ci r. 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 Plac e), seeking damages fo r alleged violations

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collate ral estoppel. It may be cited, however, for its persuasive value consiste nt 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 Court2 of her civil rights. Specifica lly, Ms. Jackson claims that Park Place discriminated against her on the basis of her race duri ng her tenancy in one of its condominium units. The district court gran ted 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 in to 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 Pl ace, there were a number of disputes between Ms. Jackson and so me of her neighbors abou t 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 sta ting, Ms. Jackson “regularly and intentionally engaged in or permitte d offensive, imprope r and/or unlawful activities with substan tial certainty that such activities wi ll interfere with [Ms. Grazia Serra’s] use and enjoyment of her property.” The HOA had no involvement in th e lawsuit. And although HOA representatives attempted to mediate the noise disputes between Ms. Jackson and her neighbors, the HOA did not fi ne or reprimand Ms. Jacks on for the noise coming from

Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Ci r. 1991). We do not, however, construct arguments or othe rwise 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 cl aiming that Park Place and members of its HOA Board of Directors (Board) illegall y discriminated against her on the basis of her race. Park Place moved for summar y 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 frie nd, 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 ac tivity and made general a llegations 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 wa s placed there an unidentified actor took her name plate down and placed it on the groun d 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 in itials for ease of identification. See, e.g. , United States v. Hill , 786 F.3d 1254, 1257 n.1 (10t h Cir. 2015). Because we rarely refer to Jaquita Jackson and Kedra Jackson, we instead refer to the plain tiff as Ms. Jackson and use full names when referri ng 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 aro und 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. Jack son stated that her landlord, Mr. Hurley, believed that these incidents occurr ed because of her race. Ms. J ackson 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. J ackson’s daughters repeated these allegations. 3 At some point during her tenancy at Pa rk Place, Ms. Jacks on had contacted the police and complained that sh e was a victim of harassme nt and a hate crime. The police report she produced to oppose summar y judgment contained the officer’s notes about statements made by Ms. Jackson dur ing the officer’s investigation of Ms. Jackson’s complaint. Ms. Jack son’s statements reiterated the allegations she later included in her affidavit. The district court granted summary judgm ent to Park Place. It held that Ms. Jackson had not presented any direct evid ence of housing discrimi nation and that she had failed to present enough evidence to make out a prima facie case of hostile housing environment, as re quired 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 hallw ay lights were turned off when her mother moved into the apartm ent. 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 th is incident on appeal, we do not consider it further.5 Ms. Jackson filed a “Motion to Alte r and Amend Summary Judgment” after the district court granted su mmary judgment in favor of Park Place. Park Place did not timely respond, and the dist rict court issued an orde r 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 electr onic filing system but that a timely response had been mail ed to Ms. Jackson. The di strict court exercised its discretion to consider Pa rk 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 a pplies 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 ther e 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 theref rom in the light most favor able to the party opposing summary judgment.” Reinhart v. Lincoln Cty. , 482 F.3d 1225, 1229 (10th Cir. 2007) (internal quotation marks omitted). To th e 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 mo re than mere speculation, conjecture, or6 surmise.” Bones v. Honeywell Int’l, Inc. , 366 F.3d 869, 875 (10t h Cir. 2004) (citation omitted). Ms. Jackson does not identify the federa l statute she relie s on to pursue her housing discrimination claim. Th erefore, like the district court, we assume she bases her claim on either 42 U.S.C. § 1981, whic h prohibits racial discrimination in the making, performance, modification, and termination of contracts, see Hampton v. Dillard Department Stores, Inc. , 247 F.3d 1091, 11 01–02 (10th Cir. 2001), 42 U.S.C. § 1982, which prohibits racial discrimination in the sale a nd rental of property, or 42 U.S.C. § 3604(b) of the Fair Housing Act (FHA), which prohibits discrimination against any person “in the term s, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connec tion therewith because of race, color, religion, sex, fam ilial status, or national origin.” Ms. Jackson argues that Park Place created a hos tile housing environment. When analyzing claims of hostile housing e nvironment, we have looked to decisions addressing hostile work enviro nment claims for guidance. Asbury v. Brougham , 866 F.2d 1276, 1279 (10th Cir. 198 9). 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 ha rassment was so severe, perv asive, 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). Triv ial or isolated manifestations of a discriminatory environm ent 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 enviro nment)). 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 th at she suffered harassment because of he r membership in that group. She has not claimed that Pa rk Place or any of its Board members used any ethnic or racial slurs agai nst or around her, or that a ny of the alleged harassment directly referenced her ra ce. While she clai ms that an unidentified HOA member accused her of playing “loud black music,” we agree with the distri ct court that there is nothing in the record indicating that he r 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. Hu rley—who is not an HOA Board member— believed her problems at the condominium we re 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 motiv es 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 plaint iff failed to make out a8 Title VII claim of sex discrimination on th e basis of direct evidence because the evidence was inadmi ssible hearsay); Wright-Simmons v. City of Okla. , 155 F.3d 1264, 1268 (10th Cir. 1998) (“It is well settled in th is circuit that we can consider only admissible evidence in reviewing an order granting summary judgment.”). Similarly, Ms. Jackson’s statements c ontained 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 ha rassment altered th e conditions of her housing by unreasonably inte rfering with her use and enjoyment of the premises. Whether an environment is ill egally hostile or abusive “c an be determined only by looking at all the circumstances, and factors may include the frequency of the discriminatory conduct; its severity; wh ether it is physically threatening or humiliating, or a mere offens ive utterance; and whethe r 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 id entified five incidents of unwelcome conduct: (1) it took three mont hs for her name to be placed on her mailbox; (2) her

4 Nothing in the police report indicates th at the officer spoke with anyone other than Ms. Jackson or that the officer otherw ise investigated Ms. Jackson’s harassment allegations.9 name plate was ripped off her mailbox shortly thereafter; (3) it to ok three months for her name to be placed on the outside marqu ee of the building; (4 ) the “Deville” decal on her Cadillac was stolen; and (5) Ms. Graz ia 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 th an it was for other residents, that the HOA delayed because of her ra ce, that a three-month dela y is unreasonable, or even that her lease with Mr. Hurley and his arra ngement 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 unreas onably interfered with Ms. Grazia Serra’s use and enjoyment of her property. Rest ricting Ms. Jackson to lawful noise levels does not unr easonably alter the conditi ons of her housing. Ms. Jackson also claims the removal of her nameplate and the theft of the “Deville” decal from her car co nstitute direct incidents of harassment. Yet she offers no evidence of when or where the decal wa s 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 evid ence 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 (10t h Cir. 1998).10 that the HOA was responsible for it. Moreover, these is olated and relatively minor incidents over months of time are in sufficient 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 alle gations 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 wa s properly granted on a hostile work environment claim where a plai ntiff complained of isolat ed incidents that occurred over a four-year period, most of whic h 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 se rious” did not support a hostile work environment claim). For thes e reasons, the district cour t properly granted summary judgment to Park Place. Last, Ms. Jackson takes issue with the di strict court’s cons ideration of Park Place’s response to her Motion to Alter a nd Amend Summary Judgmen t. It is unclear whether she is arguing that the district cour t’s favorable ruling disp layed judicial bias towards Park Place or that th e 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 Ci r. 2010). And district courts are entitled to a great deal of discretion in d eciding whether to consider untimely motions. See Essence, Inc. v. City of Fed. Heights , 285 F.3d 1272, 128811 (10th Cir. 2002). The district court did not exceed its di scretion in considering the untimely response here, particularly b ecause 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