UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

KENYON BRADY CLARK, Plaintiff-Appellant,

v. CACHE VALLEY ELECTRIC COMPANY, a Utah corporation, Defendant-Appellee. No. 13-4119 (D.C. No. 2:11-CV-00461-DN) (D. Utah)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Judge, PORFILIO and O’BRIEN , Circuit Judges.
Kenyon Brady Clark filed this action a lleging that his employer, Cache Valley Electric Company (“Cache Valley”), unlawfu lly discriminated against and retaliated against him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17. The district court gr anted summary judgment in favor of Cache Valley. It reasoned (1) Mr . Clark’s discrimination clai m was based solely on his

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court- 2 - supervisor’s alleged voluntar y romantic affiliation with a female subordinate, and therefore failed to state a claim for relief under Title VII; and (2) Mr. Clark failed to demonstrate that Cache Valley ’s stated nondiscriminatory reasons for terminating his employment were pretextual. For the following reasons, we affirm. DISCRIMINATION CLAIM 1. Background Mr. Clark began working for Cache Valley , an electrical contracting company, in 1998. In 2006, he became a project manager, responsible for managing projects for customers in the Teledata Division. Myron Perschon supervised the Teledata Division’s project managers , including Mr. Clark and one female with project manager duties, Melissa Silver. In his district court complaint, Mr. Cl ark alleged that Mr. Perschon favored Ms. Silver with respect to job assignments, bonuses, a nd other working conditions because Mr. Perschon was or had been roma ntically involved with Ms. Silver. The complaint also included conc lusory statements that Mr. Perschon favored females generally, but Mr. Clark presented no ev idence to support these statements. Beginning with his summary judgment response brief, however, Mr. Clark attempted to distance himself from the allegations of his co mplaint. In this appeal, he argues that his discrimination claim wa s not based on a purported romantic or sexual relationship, because (1) the alleged sexual conduct occurred years before he first complained to Cache Va lley of discrimination and retaliation, and (2) Cache- 3 - Valley eventually investigat ed the matter and informed him that no romantic or sexual relationship existed. Mr. Clark denies that hi s complaint asserts favoritism based on what turned out to be a non-existent affair. See Aplt. Opening Br. at 39-40. Unfortunately for Mr. Clark, however , the plain language of his complaint does not support this revisionist interpreta tion. Instead, the complaint alleged an inappropriate relationship be tween Mr. Perschon and Ms. S ilver involving conduct of a sexual nature, and favoritism resulting from that relationship, that affected his employment at all times rele vant to the complaint. See Aplt. App., Vol. I at A24-25. Moreover, although it contained conclusory allegations concerning Mr. Perschon’s general favoritism toward females, Mr. Clar k later admitted in his summary judgment response that he had not presented any ev idence that Mr. Perschon provided favored treatment to any other female employee besides Ms. Silver. See Summary Judgment Response, Clark v. Cache Valley Elec. Co. , No. 2:11-cv-00461-DN, doc. 39, at 8 (D. Utah Apr. 26, 2013) (characterizing as “[u]ndisputed” Cach e Valley’s contention that Mr. Clark “has not specifically a lleged, or provided any evidence that Mr. Perschon provided favored treatment to any other female employee besides Ms. Silver”). 1

1 We have consulted the district c ourt’s electronic docket to review this summary judgment response, see Fed. R. App. P. 40(a)(2), which should have been included in Mr. Clark’s appendix, see 10th Cir. R. 10.3(D)(2), 30.1(A)(1), but was not.- 4 - In sum, the basis of his discriminati on claim was that Mr . Perschon favored Ms. Silver over Mr. Clark because Ms. Silver and Mr. Perschon were in a romantic or sexual relationship. Although Mr. Clark complains that th e district court “construed allegations in [his] complaint against him,” Aplt. Opening Br. at 39, in fact, it simply read the complain t as written. The summary judgment evidence also supports the district court’s understanding of the complaint. During his deposition, Mr. Cl ark was asked about the allegations that he had suffered pe rsonally and professionally due to the relationship between Mr. Pers chon and Ms. Silver. He e xplained that they “acted like they were married.” Aplt. App., Vol. I at A157. Mr. Clark acknowledged that he c ould not be certain Mr. Perschon and Ms. Silver were in a sexual relationship. But he stated “whether they were having sex or not, there was favoritism.” Id. at A172. He was then asked “where do you think that favoritism was coming from?” Id. He responded: [I]t goes back to just the way that, you know, they interacted with each other. Whether they were having se x or not, off of what I witnessed from Myron [Perschon] he definitely ha d – it wasn’t business. It should have been a business relationship. It was not a business relationship. Id. at A172-73. Nor did Mr. Clark cease complaining ab out the relationship once Cache Valley conveyed to him Mr. Persc hon and Ms. Silver’s denial s. Mr. Clark described- 5 - a meeting with Nathan Wicki zer, Chief Operating Officer at Cache Valley, that took place several months before Mr. Clark was fired: 26. During this meeting, [Mr.] Wi ckizer . . . told me that he had discussed the alleged affair with Mr . Perschon and Ms. Silver and that they had both denied any sexual or other personal relationship, and that [Cache Valley] was not concerned with what, if anything, the two of them did on their own time. 27. I took Mr. Wickizer at hi s word. However, I told him that I was still concerned about the am ount of time [Mr.] Perschon was spending with [Ms.] Silv er, their behavior toge ther (that they acted unprofessionally for a business envi ronment and more like a married couple), that [Mr.] Perschon perform ed most of [Ms. ] Silver’s job functions as a Project Manager (e .g., bids, walkthroughs, takeoffs, manpower), and that she was being pa id more for performing less work than the male Project Managers s upervised by [Mr.] Perschon, including me, and that she was unfairly ge tting jobs from [Mr.] Perschon. Id. at A49. When asked about the alleged favor itism during his deposition, Mr. Clark failed to articulate a discri minatory, rather than a rela tionship based, rationale for Mr. Perschon’s behavior. He was asked: Q. . . . So if they weren’t having an affair, what would explain all of those things that you’re so offended by? A. Favoritism. Q. Based on what? A. He’s spending all his time in her office. Q. Why is he spending all of his time in her office? A. You’re going to have to ask him. I don’t know that. Id. at A295 (emphasis added).- 6 - Mr. Clark thus admitted that if the fa voritism was not due to an affair, he did not know the reason for it. More to the point, he did not state that Mr. Perschon favored Ms. Silver due to the fact that she was a female. Moreover, as will be seen in our discussion of the retaliation claim, hi s complaints to Cach e Valley management also were based on favoritism resulting fr om the alleged affair or romantic relationship, rather than gender bias. 2. Analysis We review the district court’s summar y judgment ruling de novo, applying the same standard as th e district court. EEOC v. Abercrombie & Fitch Stores, Inc. , 731 F.3d 1106, 1116 (10th Ci r. 2013). Summary judgmen t is appropriate “if the movant shows that there is no genuine dispute as to any ma terial fact and the movant is entitled to judgment as a matter of law.” Fed. R. Ci v. P. 56(a). In reviewing a summary judgment disposition, “[w]e view the facts, and all reasonable inferences those facts support, in the light most favorable to the nonmoving party.” Abercrombie & Fitch , 731 F.3d at 1116 (internal quotation marks omitted). When the plaintiff’s evidence of gender di scrimination is circumstantial rather than direct, we evaluate his claim using the burden shifting framework established in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). “Under McDonnell Douglas , a plaintiff carries the initial burden of establishing a prima facie case of discrimination.” Tabor v. Hilti, Inc. , 703 F.3d 1206, 1216 (10th Cir. 2013). To assert a prima facie case of gender discrimination in the workplace, a pl aintiff must- 7 - ordinarily show that “(1) the victim bel ongs to a protected cl ass; (2) the victim suffered an adverse employment action; and (3) the challenged action took place under circumstances giving rise to an inference of discrimination.” EEOC v. PVNF,
L.L.C. , 487 F.3d 790, 800 (10th Cir. 2007). In a reverse gender discrimination case like this one, however, a plaintiff “must, in lieu of showing that he belongs to a protected group, establish b ackground circumstances that support an inference that the defendant is one of those unusual em ployers who discriminates against the majority.” Argo v. Blue Cross & Blue Shield of Kan., Inc. , 452 F.3d 1193, 1201 (10th Cir. 2006) (int ernal quotation marks omitted). “Alternatively, a plaintiff may produce facts sufficient to support a reasonabl e inference that but fo r plaintiff’s status the challenged decision would not have occurred.” Id. (internal quotation marks omitted). “Once the plaintiff establis hes a prima facie case of discrimination, the burden shifts to the employer to articulate a le gitimate, nondiscriminatory reason for the adverse action.” PVNF , 487 F.3d at 800. “If the empl oyer does so, the burden shifts back to the plaintiff to show that there is a genuine issu e of material fact as to whether the employer’s proffere d reasons are pretextual.” Id. Mr. Clark presented no evidence that Cache Valley treated women more favorably than men, and no circumstan ces giving rise to an inference of discrimination. Indeed, as the district court concluded, Mr. Clark merely provided evidence that Mr. Perschon extende d preferential treatment to one female employee:- 8 - Ms. Silver, a co-worker with whom Mr. Pe rschon allegedly was ha ving an affair or some other form of “improper” relationship. Favoritism of a paramour is not gender discrimination. See, e.g. , Taken v. Okla. Corp. Comm’n , 125 F.3d 1366, 1370 (10th Cir. 1997) (“[P]refere ntial treatment on the basis of a consensual romantic relationship between a supervisor a nd an employee is not gender-based discrimination.” (internal quot ation marks omitted)). Mr. Clark attempts to distinguish Taken by arguing that he merely accused Mr. Perschon of some other form of af filiation with, or vaguely “improper relationship” with, Ms. Silver, rather than an actual sexual relationship. See Aplt. Opening Br. at 54 (misstating case law to hol d that “the preferen tial treatment [must] actually arise out of a sexual affiliation instead of gender in order for the favoritism to be outside of the purview of Title VII. ” (emphasis added)). But in fact, other motives such as friendship, nepotism, or personal fondne ss or intimacy, rather than an actual sexual relationship, also suffice to remove the case from Title VII’s anti-discrimination provisions. See, e.g. , Swackhammer v. Sprint/United Mgmt. Co. , 493 F.3d 1160, 1171-72 (10th Cir. 2007) (f inding no inference of discrimination where supervisor treated male employee with whom he was friends “differently than any of his other direct reports, male or female,” including hosting and paying for a birthday party for the favored employee); Neal v. Roche , 349 F.3d 1246, 1251 (10th Cir. 2003) (collecting cases illust rating that such motives as friendship, cronyism, or nepotism do not constitute acti onable discrimination, “even when they- 9 - benefit the nonprotected friend or relativ e at the expense of a more qualified, protected person”); Schobert v. Ill. Dep’t of Transp. , 304 F.3d 725, 733 (7th Cir. 2002) (“Whether the employer grants employment perks to an employee because she is a protégé, an old friend, a close relative or a love intere st, that special treatment is permissible as long as it is not base d on an impermissible classification.”). In sum, there is no showing that Mr. Perschon favored Ms. Silver because of gender bias. Rather, the allegations s upported by the summary judgment evidence are that Mr. Perschon favored Ms. Silver be cause the two of them had (or behaved as though they had) some kind of special friends hip, affinity, or rela tionship. This is insufficient to establish a case of gender di scrimination. The dist rict court therefore properly granted summary j udgment on this claim. RETALIATION CLAIM Mr. Clark alleged that because he complained to C ache Valley about Mr. Perschon’s favoritism for Ms. Silver, Mr . Perschon retaliated against him. Mr. Perschon’s retaliation took the form of trying to get a competitor to hire him away, refusing to communicate with Mr . Clark, and distancing himself from Mr. Clark. When Mr. Clark complain ed about Mr. Perschon’s favoritism and retaliation, Cache Valley allegedly fu rther retaliated by firing him. Mr. Clark’s retaliation clai m is evaluated using the McDonnell-Douglas approach. The district court ruled agai nst Mr. Clark at the third stage of the McDonnell-Douglas analysis, finding he had failed to show that Cache Valley’s- 10 - legitimate, nondiscriminatory reason for te rminating his employment was pretextual. But Cache Valley also argued—and continue s to argue—that Mr. Clark’s retaliation claim fails at the first (prima facie) stage, because he l acked a reasonable, good faith belief that he was opposing condu ct that violated Title VII. We affirm the grant of summary judgment on the retaliation claim on this alternative basis. 1. Background According to Mr. Clark, he did not complain to Cache Valley management until April 2010, when Mr. Wickizer as ked him how things were going in the Teledata Division. Mr. Clark char acterizes his response as follows: During this meeting, for the first ti me, I informed [Mr. ] Wickizer about various issue[s] within the Division, including rumors about an alleged affair between Mr. Perschon and Ms. Silver that had been circulating within the Division and within [Cache Valley’s] industry for some time. I told him I was concerned about th e alleged affair because of the perception of the affair and that it was damaging [Cache Valley’s] reputation, and it was difficult for me to continually respond to vendors and suppliers who had questions about the purporte d relationship. Aplt. App., Vol. I at A48-49, ¶ 24. Mr. Wickizer purportedly responded to these comments by telling Mr. Clark that he had discussed these issues with Mr. Perschon and Ms. Silver, that they had denied having a sexual or other form of pe rsonal relationship, an d that Cache Valley was not concerned with what, if anything, the two of them did on their own time. Mr. Clark replied that [he] was still concerned about the amount of time [Mr.] Perschon was spending with [Ms.] Silver, their behavior together (that they acted unprofessionally for a business envi ronment and more like a married- 11 - couple), that [Mr.] Perschon perform ed most of [Ms. ] Silver’s job functions as a Project Manager (e .g., bids, walkthroughs, takeoffs, manpower), and that she was being pa id more for performing less work than the male Project Managers s upervised by [Mr.] Perschon, including [Mr. Clark], and that she was unfai rly getting jobs from [Mr.] Perschon. Id. at A49, ¶ 27. Mr. Clark next complained in Sept ember 2010. After two male project managers gave notice they were leavi ng Cache Valley, Mr. Wickizer conducted a series of interviews with the remaining pr oject managers. Duri ng his interview with Mr. Clark, Mr. Wickizer as ked if Mr. Clark thought Ms . Silver was using a prior relationship with Mr. Perschon to exact pref erential treatment fr om Mr. Perschon. Mr. Clark said he di d not know, but he also told [Mr.] Wicki zer that [he] had no id ea what was going on and that [he] did not know if [Mr.] Pers chon and [Ms.] Silver had, in fact, ever had a prior sexual relationship. However, [he] again informed [Mr.] Wickizer about the fact that [Mr.] Perschon was 1) providing her most, if not all, of the jobs that came into [Cache Va lley] via phone, or that came to [Mr.] Perschon; 2) allowing her to use free cable on her jobs to increase her bonuses; 3) doing her project manager work for her on larger projects; [4]) paying highe r bonuses to [Ms.] Silver [than Mr. Clark] for the work she was perfo rming; [5]) granting her excessive amounts of personal leave and not charging it to her [paid time off account]; and [6]) spending an i nordinate amount of time with [Ms.] Silver during working hours. Id. at A51-52, ¶ 39.- 12 - Mr. Clark made another complaint in la te September 2010. On that occasion, he was told to meet with Mr. Wickizer and Mr. Persc hon. During this meeting, Mr. Clark expressed to Mr. Perschon the frustration that the alleged affa ir had on [Mr. Clark] and [his] co-workers and then proceeded to ou tline the preferentia l treatment that [he] believed [Mr.] Perschon was provi ding to [Ms.] Silver (e.g., doing her take-offs, job walks, and manpower; giving her the majority of the job leads or customers th at came into the Teledata Division, providing her with access to free cable; a nd paying her significant bonuses). Id. at A52, ¶ 41. Mr. Clark’s penultimate comp laint came in the form of a letter he wrote on November 10, 2010 to Stacy Atkins on, Cache Valley’s Human Resources Representative, and Jim Laub, Cache Valley’s Chief Execu tive Officer. This letter read in pertinent part as follows: Unfortunately, during the past 3+ years, I have personally and professionally suffered very serious and very real adverse affects [sic] to my employment due [to] the relationship between my superior and one of my peers

. . . . Approximately three year s ago [Mr. Perschon] engaged in a relationship with [Ms.] Silver that progressively became common knowledge internally among his subordi nates and externally with those [with whom] we do business. This went on for several months creating a hostile work environment. We have been operating in an unproductive work environment while putting the company at risk. . . . I reported these concerns initially to Nate [Wickizer] back in April of 2010. [Mr. Wickizer] didn’t believe it was Cache Vall ey’s business as long as [Mr. Perschon] and [Ms. Silver ] kept their alleged affair on their own time. Regardless of the depth of the alleged affair outside the workplace, the relationship was inappropri ate between a supervisor and a subordinate in the workplace. The work environment is the company’s business and it is the legal responsibility of any employer to- 13 - ensure the workplace is free of harassm ent or retaliation. This did not happen. In fact, a few weeks a go, I was called to talk with [Mr. Perschon] directly to “hash things out” in [M r. Wickizer’s] office. This again, is not an a ppropriate action relative to reports I made about [Mr. Perschon]. Cache Valley did not conduct an objective, non-bias[ed] investigati on. I was not given the opportunity to speak to an unbiased party and to my knowledge nor was anyone else. I was not protected by the company – I was humiliated by the company and now I still report to the same superi or who retaliated against me. Id. at A86-87 (emphasis added). Finally, during the intervie w he obtained with human resources in response to this complaint letter, Mr. Clark again complained about the same things [he] had raised previously to [Mr.] Wickizer. Sp ecifically, the disparity in pay, bonuses provided to [Ms.] Silver, [Mr.] Perschon performi ng the majority of [Ms.] Silver’s project manager duties, granting exces sive time off to [Ms.] Silver, spending an inordinate amount of time with [Ms.] Silv er during working hours, and [Mr.] Perschon’s retalia tion against [Mr. Clark] following [his] meeting with him and [Mr.] Wickizer. Id. at A54, ¶ 55. Mr. Clark asserts that after this mee ting, he met with human resources and Cache Valley’s legal counsel, and was termin ated. He says he was fired because he had submitted the letter of November 10. Cache Valley claims he became insubordinate by insisting th at Mr. Perschon be either fired or demoted. At his deposition, Mr. Clark was asked about his feelings about working for Mr. Perschon. He stated: I didn’t have a problem with work ing with [Mr. Perschon]. I’ve told you he’s a smart guy and he can do a lot. I just think that he got off track with his affair w ith [Ms. Silver] and the way he was treating all- 14 - the other [project managers]. That’s the whole – that’s what is comes down to. Aplt. App., Vol. I at A320 (emphasis added). 2. Analysis In order to establish a prim a facie case of retaliati on, Mr. Clark had to show “(1) that he engaged in protected oppositi on to discrimination, (2) that a reasonable employee would have found the challenged acti on materially adverse, and (3) that a causal connection existed between the protect ed activity and the materially adverse action.” Argo , 452 F.3d at 1202 (footnote omitte d). Even if no actionable discrimination took place—and Mr . Clark failed to show th at any did—he could still meet the first element of his prima facie case by showing that he had a reasonable good-faith belief, when he complained to Cache Valley, that he was engaging in protected opposition to discrimination. Crumpacker v. State of Kan., Dep’t of Human
Res. , 338 F.3d 1163, 1172 (10t h Cir. 2003) (permitting plaintiff to maintain retaliation claim “based on a reasonable go od-faith belief that the underlying conduct violated Title VII.”). This “reasonable good-faith belief” te st has both subjective and objective components. “A plaintiff mu st not only show that he subjectively (that is, in good faith) believed that his employer was enga ged in unlawful employment practices, but also that his belief was objectively reasonable in light of the facts and record presented.” Little v. United Tech., Carrier Transicold Div. , 103 F.3d 956, 960 (11th Cir. 1997). To dete rmine whether it was objectivel y reasonable for a person in- 15 - Mr. Clark’s position to have believed that he was opposing prohibited conduct, we look to the underlying substantive law. See, e.g. , Clark Cnty. Sch. Dist. v. Breeden , 532 U.S. 268, 270-71 (2001) (per curiam) (considering the elements of a sexual harassment claim in determining whether a plaintiff had a reasonable belief that she had been sexually harassed when she complained to her employer). We find the Second Circuit’s opinion in Kelly v. Shapiro & Associates , 716 F.3d 10 (2d Cir. 2013) (p er curiam), persuasive here . In that case, a female employee alleged retaliatory treatment re sulting from complaints about a “hostile work environment” that was “permeat ed by sexual favoritism” created by her brother’s relationship with a female subordinate. Id. at 12. The brother had allegedly reduced the plaintiff’s job duties and res ponsibilities, and rem oved her leadership duties, in favor of his paramour. When she complained, both of her brothers allegedly retaliated against her. The Second Circuit u pheld the district court’s dismissal of her retaliati on claim, holding that she di d not have a reasonable, good-faith belief that she had complained ab out conduct that viol ated Title VII. The Second Circuit noted that “[a] pl aintiff’s belief . . . is not reasonable simply because he or she complains of something that appears to be discrimination in some form.” Id. at 15. Noting that “nothing in our Title VII jurisprudence requires a plaintiff to append to each allegation of ha rassment that conclusory declaration ‘and this was done because of my sex,’” id. (internal quotation marks and brackets omitted), the court neverthele ss concluded that the plain tiff’s complaint failed to- 16 - allege facts from which she could have deve loped a reasonable, good-faith belief that her employer had violated Title VII: Although [the plaintiff] alleges th at she repeatedly used the words “discrimination” and “harassment” when complaining to her employers, her argument that the widespread sexual favoritism constituted gender discrimination because it resulted in an atmosphere demeaning to women is entirely unsuppor ted by the allegations in her complaint. . . . [T]here is no indication either that [the plaintiff] herself possessed a good-faith belief that she was complaining of conduct prohibited by Title VII or that her employers could ha ve understood her complaints in this way. Id. at 15-16 (internal quot ation marks, brackets , and ellipsis omitted). The Second Circuit rejected the plain tiff’s argument that “as a non-lawyer, she should not be required to understand the ‘param our preference’ or other intricacies of our Title VII jurisprudence.” Id. It noted that “mere subjective good faith is insufficient; the belief must be reasonable and characterized by objective good faith.” Id. (internal quotation marks and brackets omit ted). The plaintiff had “failed to allege facts demonstrating th at even a legally unsophisti cated employee would have a good faith, reasonable belief th at the Defendants’ preferen tial treatment of [the female subordinate] constitute d discrimination [against pl aintiff] based on gender.” Id. at 17 (internal quotation marks and ellipsis omitted). For reasons similar to those in Kelly , Mr. Clark’s retaliati on claim must fail. Although he included conclusory statements about “discrimination” or a “hostile work environment” in his co mplaints to his supervisor s and human resources, and occasionally opined that Mr. Perschon fa vored Ms. Silver over “male” employees,- 17 - nothing in those complaints illustrated a reasonable, good faith belief that Cache Valley was engaged in gender discrimination. Rather, Mr . Clark complained about Mr. Perschon’s inappropriate conduct with Ms. Silver, and th e resulting favoritism shown to her. Mr. Clark also argues, briefly, that he has “direct evidence” of retaliation that removes this case entirely from the McDonnell-Douglas paradigm. Aplt. Opening Br. at 45. Specifically, he cl aims (1) that Cache Valley’s counsel told him at the time he was fired that it was because he sent the November 10, 20 10, complaint letter,

see Aplt. App., Vol. I at A329-30, and (2) that Mr. Wickizer testified that part of the reason Mr. Clark was terminated wa s because he sent the letter, see id. Vol. II at A498. Although this may be direct evidence that Cache Valley fired Mr. Clark because he complained , this by itself is insufficien t to survive summary judgment on the retaliation claim. Mr. Clark must still show that he complained because he reasonably believed that Cache Valley’s conduct violated Ti tle VII. After all, an employer could admit having fired an employee for complaining about most anything—from the size of his office to th e food in the company cafeteria—but this would not be direct eviden ce of retaliation under Title VII, unless the employee’s complaint concerned discrimination, or the employee at least reas onably in good faith believed that it did. Such a reasonable, goo d-faith belief is missi ng from this case.- 18 - Finally, Mr. Clark attempts to remove his allegations of retaliation one step from the “paramour exception.” He argue s that after he complained about Mr. Perschon’s favoritism toward Ms. Silver, Mr. Perschon retaliat ed against him. He then endured further retaliation fo r complaining to Cache Valley about Mr. Perschon’s retaliation. He contends that his retaliation complaints involved protected conduct. In other words, he cl aims that he was re taliated against for complaining about retaliation. This claim fares no better than his other allegations of retaliation. Title VII prohibits an employer from retaliating agai nst an employee “because he has opposed any practice made an unlawful employment practice by this subchapter .” 42 U.S.C. § 2000e-3(a) (emphasis added). Mr. Clark fails to show that it is an “unlawful employment practice” to retaliate agai nst an employee who complains about favoritism shown to a supervis or’s paramour or special friend, or that an employee could have a reasonable, good-faith belief that it is. Thus, tho ugh he complained about retaliation, he did not complain about retaliation th at constituted an “unlawful employment practice,” and was not retaliated against for making such a complaint. CONCLUSION The judgment of the dist rict court is affirmed. Entered for the Court
Mary Beck Briscoe Chief Judge