UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

CAROLYN STAPP, 

 Plaintiff - Appellant, 

v. 

CURRY COUNTY BOARD OF 

COUNTY COMMISSIONERS, 

 Defendant - Appellee. 

No. 16-2067 

(D.C. No. 2:15-CV-00356-GBW-CG) 

(D. N.M.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before KELLY, GORSUCH, and MATHESON, Circuit Judges. 

_________________________________ 

Plaintiff Carolyn Stapp appeals from a district court order granting summary 

judgment for defendant Curry County Board of County Commissioners in this action 

under the Age Discrimination in Employment Act (ADEA).1

 She challenges the 

rejection of her claims for constructive discharge, hostile work environment (HWE), 

and retaliation. Reviewing the summary judgment order de novo under the same 

 *

 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. 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

 Judgment was entered for the district court by the magistrate judge acting 

pursuant to the consent of the parties under 28 U.S.C. § 636(c)(1). 

FILED 

United States Court of Appeals

Tenth Circuit 

December 6, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

standard as the district court, Thomas v. Berry Plastics Corp., 803 F.3d 510, 514 

(10th Cir. 2015), we affirm. 

I. BACKGROUND 

To aid in understanding the relevant factual background, we provide an 

overview of our rationale for resolution of this appeal. As for the HWE and 

constructive discharge claims, we agree with the district court that the County 

established (1) it had a reasonable policy to prevent and promptly correct prohibited 

harassment and (2) Ms. Stapp unreasonably failed to take advantage of the policy, 

entitling the County to judgment as a matter of law on both claims under the 

Ellerth/Faragher doctrine. See Pa. State Police v. Suders, 542 U.S. 129, 137-38, 

140-41 (2004) (holding doctrine of Burlington Industries, Inc. v. Ellerth, 524 U.S. 

742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), which 

involved HWE claims, also applies to constructive discharge claims based on 

harassment if there is no official employment action involved).2

 As for the retaliation 

claim, we agree with the district court that Ms. Stapp could not show the requisite 

causative link between protected activity and adverse consequences. 

 2

 Alternatively, the district court held the HWE claim failed because Ms. Stapp 

could not show a workplace permeated with discriminatory intimidation, ridicule, and 

insult sufficiently severe or pervasive to alter the conditions of her employment and 

create an abusive environment, see Penry v. Fed. Home Loan Bank of Topeka, 

155 F.3d 1257, 1264 (10th Cir. 1998), and the constructive discharge claim failed 

because she could not show working conditions so intolerable that a reasonable 

person would feel she had no choice but to quit, particularly in light of an offer from 

the County’s personnel coordinator to investigate her complaints upon learning of her 

intent to resign. See Fischer v. Forestwood Co., 525 F.3d 972, 980-81 (10th Cir. 

2008); Sanchez v. Denver Pub. Sch., 164 F.3d 527, 534 (10th Cir. 1998). 
3 

With these legal points in mind, we recount the summary of undisputed facts 

set out by the district court, which Ms. Stapp has not challenged on appeal:3

 

1. Plaintiff Carolyn Stapp began her employment as a Booking Officer at 

the Curry County Detention Center on January 14, 2011. 

2. Plaintiff was a good employee. 

3. At all times material, Curry County had a personnel policy in place 

which prohibited workplace harassment or discrimination, including on the 

basis of age, and which provided a procedure for raising claims or 

complaints of age discrimination or harassment. 

4. Curry County’s personnel policy requires that any complaint of 

workplace harassment be reported to the Personnel Coordinator. Under the 

policy, the Personnel Coordinator is the person authorized to receive and 

act upon any complaints of workplace harassment. All complaints are 

investigated. If any employee is dissatisfied with the conclusions or results 

of any investigation or with any corrective measures, the employee may 

appeal, in writing, to the County Manager. 

5. Plaintiff received and acknowledged receipt of Curry County’s 

personnel policy. 

6. Plaintiff received general training in workplace discrimination and 

harassment. 

7. At all times material, Carrie Wilhite served as Personnel Coordinator for 

Curry County. While Plaintiff met with Ms. Wilhite on multiple occasions 

and complained about working conditions, Plaintiff never reported ageist 

comments to Ms. Wilhite. In addition, Plaintiff never presented any appeal 

to the County Manager. 

8. At all times material, Rhonda Long was employed as a senior booking 

officer. 

9. At all times material, Cheryl Jouett was employed as a booking officer. 

 3

 Ms. Stapp broadly asserts that material fact disputes preclude summary 

judgment, but she does not dispute the specific facts recited above (with one 

groundless exception that we discuss later). Rather, her argument is that the facts 

create genuine issues regarding her right to relief and to a trial on her claims. 
4 

10. On January 13, 2012, Plaintiff met with Ms. Wilhite and complained 

about work conditions and the attitudes of Ms. Long and Ms. Jouett. 

However, Plaintiff did not report any ageist comments to Ms. Wilhite. 

11. Plaintiff claims that ageist comments were made by detention officers 

every day starting in October 2011. 

i. A twenty-five year old detention officer named Sotelo 

nicknamed Plaintiff “old woman.” 

ii. Sotelo teased Plaintiff about her eyeglasses being “coke 

bottles.” 

iii. Sotelo teased Plaintiff about her dentures falling out. 

iv. Plaintiff was called a “devil worshipper” by a sergeant in the 

presence of Ms. Long. 

v. Several detention officers who were younger than Plaintiff 

called her “old woman” because she wore dentures and 

eyeglasses with thick lenses. 

vi. When Plaintiff would get up from her chair, detention officers 

would say “be careful you don’t fall” or ask if she needed a 

cane. 

12. Plaintiff claims that Ms. Long instigated the comments by telling the 

detention officers her age. 

13. On more than one occasion, Ms. Long told the detention officers to 

stop making the ageist comments. 

14. On February 21, 2012, Plaintiff complained to the Detention Center 

Administrator, Tori Sandoval, that the working environment with Ms. Long 

and Ms. Jouett was hostile. However, Plaintiff does not remember 

reporting any ageist comments to Ms. Sandoval. Ms. Sandoval explained 

that if Plaintiff felt that she was being harassed, that she should speak to 

Ms. Wilhite or the human resources department. 

15. As a result of this complaint, Ms. Sandoval held a meeting with other 

booking officers on February 27, 2012 to discuss workplace attitudes, 

animosity, a hostility in the work environment, overtime, and not being 

required to work on days when officers were not scheduled. 

16. On March 4, 2012, Plaintiff asked Ms. Wilhite for time off work 

because of Ms. Jouett’s alleged hostility. Plaintiff did not state that this 

hostility was due to age discrimination. 
5 

17. Plaintiff met with Ms. Wilhite again on March 8, 2012 to complain 

about the jealousy, mean treatment, and attitudes of Ms. Long and 

Ms. Jouett. However, Plaintiff did not report ageist comments at this 

meeting. 

18. Plaintiff claims that the last time any alleged ageist remark was made 

was on March 11, 2012. 

19. Plaintiff was out sick from March 12-18, 2012. Plaintiff returned to 

work on March 19-20, 2012, which was Monday and Tuesday. 

20. In her diary of her work at the Detention Center, Plaintiff documented 

that on March 19-20, 2012, she had problems with Ms. Long and another 

officer, Sheila Morrison, being distant. Plaintiff cannot describe this with 

any specificity, but stated that the animosity was high. 

21. Plaintiff’s regular days off work were Wednesday and Thursday. 

Consistent with this schedule, Plaintiff was off work on Wednesday and 

Thursday, March 21-22, 2012. 

22. On Thursday March 22, 2012, Plaintiff called in and reported she could 

not be at work on Friday, March 23, 2012, because she needed to attend to 

her husband, who was having medical difficulties. 

23. On March 23, 2012, Plaintiff spoke on the phone with Ms. Wilhite and 

complained that Sheila Morrison had recently been hostile toward her. 

Plaintiff informed Ms. Wilhite that she was being forced to resign and 

planned to resign on Monday, March 26, 2012. 

24. Ms. Wilhite encouraged Plaintiff not to resign, telling Plaintiff that she 

was a good employee and offering to open an investigation. Ms. Wilhite 

had offered an investigation in the past, but had never opened an 

investigation. 

25. Plaintiff did not work on March 24-25, 2012, and did not call in sick 

for either day. 

26. Plaintiff tendered her resignation on March 26, 2012 because of the 

alleged hostile work environment, harassment, animosity, and emotional 

suffering. 

27. Plaintiff never reported the ageist comments to the County Manager. 

28. Plaintiff was supposed to receive a raise in pay in January 2012, but 

did not receive the raise until March 2012. 
6 

Dist. Ct. Doc. 46 (Summary Judgment Order) at 3-8 (citations omitted). To the 

extent additional facts are pertinent, they will be considered in connection with 

particular issues raised by Ms. Stapp. 

II. ELLERTH/FARAGHER DEFENSE TO CONSTRUCTIVE DISCHARGE 

AND HWE CLAIMS BASED ON AGE-DISCRIMIANTORY HARASSMENT 

 

A. Preservation of Ellerth/Faragher Defense

Ms. Stapp contends the County should not have been allowed to rely on the 

Ellerth/Faragher defense because the County did not assert it in its answer to the 

complaint as required by Fed. R. Civ. P. 8(c) (“In responding to a pleading, a party 

must affirmatively state any avoidance or affirmative defense. . . .”). The district 

court rejected this contention, and so do we. 

“The general rule is that a party waives its right to raise an affirmative defense 

. . . when the party fails to raise the defense in its pleadings.” Creative Consumer 

Concepts, Inc. v. Kreisler, 563 F.3d 1070, 1076 (10th Cir. 2009). But mindful “that 

the liberal pleading rules established by the Federal Rules of Civil Procedure apply to 

the pleading of affirmative defenses,” we “must avoid hypertechnicality in pleading 

requirements and focus, instead, on enforcing the actual purpose of the rule.” Id.

(internal quotation marks omitted). That purpose “is simply to guarantee that the 

opposing party has notice [of the defense] . . . so that he or she is prepared to 

properly litigate it.” Id. (internal quotation marks omitted). 

We agree with the district court that the County’s answer provided adequate 

notice of the Ellerth/Faragher defense. In setting out affirmative defenses, the 
7 

answer asserted both elements of the Ellerth/Faragher defense: that the County had 

exercised reasonable care to address harassment and discrimination and that 

Ms. Stapp had failed to take advantage of its safeguards against discrimination by 

neglecting available investigatory and remedial mechanisms, App. at 27. See Suders, 

542 U.S. at 145-46. And, as the district court observed, Ms. Stapp thereafter sought 

discovery framed in terms of the elements of the Ellerth/Faragher defense. See App. 

at 157, 162-64. While the County did not specifically refer to Ellerth/Faragher in its 

answer, to insist on citation to authorities or the use of particular labels in pleadings 

when the concern for notice is satisfied without them would enforce the very 

hypertechnicality rejected by Kreisler. See also Adams v. Austal, U.S.A., L.L.C., 

754 F.3d 1240, 1258-59 (11th Cir. 2014) (holding Ellerth/Faragher defense not 

waived under Rule 8(c) though case name not used in answer). 

B. Applicability of Ellerth/Faragher Defense in ADEA Cases 

 We also agree with the district court that the Ellerth/Faragher defense applies 

in ADEA cases. In Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1270 

(10th Cir. 1998), we held that although Ellerth and Faragher involved claims of 

sexual harassment, “the principles established in those cases apply with equal force 

to [a] case of racial harassment for a number of reasons.” Those reasons were: (1) “a 

preference for harmonizing the standards applied in cases of racial discrimination and 

sexual discrimination”; (2) Ellerth and Faragher “do not involve situations unique to 

sexual harassment cases, e.g., quid pro quo harassment”; (3) “employer-liability 

standards are equivalent for race and sex-based discrimination”; and (4) Ellerth and 
8 

Faragher “interpreted the same statutory language at issue [in race discrimination 

cases]: Is an institution an ‘employer’ for purposes of Title VII?” Id. These reasons 

support application of the Ellerth/Faragher doctrine in the ADEA context as well. 

Harmonization of the statutory standards is particularly evident here—where 

the recognition of age-based HWE claims was a carryover from the Title VII 

sexual-harassment context based on the fact “that the ADEA and Title VII share 

common substantive features and also a common [anti-discriminatory] purpose.” 

Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 440 (5th Cir. 2011) (following 

Crawford v. Medina Gen. Hosp., 96 F.3d 830, 834-35 (6th Cir. 1996)). Further, the 

standard governing employer liability is the same. See MacKenzie v. City & Cty. of 

Denver, 414 F.3d 1266, 1280 (10th Cir. 2005) (applying standard from Title VII 

sexual harassment case, Penry, 155 F.3d at 1261, to HWE claim in ADEA case). 

See generally Villescas v. Abraham, 311 F.3d 1253, 1257 (10th Cir. 2002) (“The 

substantive anti-discrimination provisions of the [ADEA] are patterned on Title VII 

. . . .”). And the point made in Wright-Simmons about the Ellerth/Faragher doctrine 

not deriving from quid pro quo considerations unique to sexual harassment—which 

might make it inapt for other types of harassment—is equally pertinent here. Finally, 

aside from the number of employees required, “Title VII defines ‘employer’ in the 

same way as the ADEA,” Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 361 

n.1 (7th Cir. 2016), and hence the definitions “‘must be read in the same fashion,’” 

Fantini v. Salem State Coll., 557 F.3d 22, 29 (1st Cir. 2009) (quoting Lissau v. S. 

Food Serv., Inc., 159 F.3d 177, 180 (4th Cir. 1998)). 
9 

More generally, there is a “developing consensus” that although the 

Ellerth/Faragher defense was first recognized in the context of sexual harassment, it 

applies “to the full range of harassment claims covered by Title VII.” Spriggs v. 

Diamond Auto Glass, 242 F.3d 179, 186 n.9 (4th Cir. 2001) (collecting cases, 

including this circuit’s decision in Wright-Simmons); see also Vance v. Ball State 

Univ., 133 S. Ct. 2434, 2442 n.3 (2013) (noting “[s]everal federal courts of appeals 

have held that Faragher and Ellerth apply to other types of hostile environment 

claims,” and assuming, without deciding, that Ellerth/Faragher defense applies to 

race-based HWE claim); Williams v. Admin. Review Bd., 376 F.3d 471, 478 (5th Cir. 

2004) (holding Ellerth/Faragher defense applies to whistleblower-harassment claim). 

And the defense has been applied specifically to claims under the ADEA. See, e.g., 

Stofsky v. Pawling Cent. Sch. Dist., 635 F. Supp. 2d 272, 295 (S.D.N.Y. 2009); 

Oleyar v. Cty. of Durham, 336 F. Supp. 2d 512, 518 & n.5 (M.D.N.C. 2004); Lacher 

v. West, 147 F. Supp. 2d 538, 543-44 (N.D. Tex. 2001). 

Given the analytical guidance from our own precedent in Wright-Simmons, and 

prevailing trends elsewhere, we conclude that the Ellerth/Faragher defense applies to 

HWE claims and constructive discharge claims asserted under the ADEA.4

 

 4

 In Pennsylvania v. Suders, 542 U.S. 129 (2004), the Supreme Court said the 

Ellerth/Faragher defense applies to a claim that a hostile work environment 

culminated in a constructive discharge unless “a supervisor’s official act precipitates 

the constructive discharge; absent a ‘tangible employment action,’ however, the 

defense is available to the employer whose supervisors are charged with harassment.” 

Id. at 140-41. We address the absence of a tangible employment action here in the 

next section. 
10 

C. No Tangible Employment Act for HWE and Constructive Discharge Claims 

Ms. Stapp contends the Ellerth/Faragher defense is inapplicable because she 

suffered tangible employment actions. See generally Pinkerton v. Colo. Dep’t of 

Transp., 563 F.3d 1052, 1059 (10th Cir. 2009) (explaining that Ellerth/Faragher

defense is not available to shield employer from vicarious liability if supervisor’s 

harassment “culminates in a tangible employment act, such as discharge, demotion, 

or undesirable reassignment” (internal quotation marks omitted)).5

 We disagree. 

She refers to an averment in her affidavit describing animosity directed at her 

on March 20, 2012, when she was spoken to in a rude manner and “was excluded 

from [her] duties.” App. at 114-15. This conclusory statement about a single 

incident of workplace interference—which does not say what duties were involved, 

whether the interference was official, or how and for how long the exclusion was 

effected—is plainly insufficient to create a triable issue of a tangible employment 

action. A tangible employment action is “a significant change in employment status, 

such as hiring, firing, failing to promote, reassignment with significantly different 

responsibilities, or a decision causing a significant change in benefits.” Suders, 

542 U.S. at 144 (internal quotation marks omitted). Ms. Stapp’s affidavit does not 

provide a basis for any such finding. 

 5

 We note much of the alleged harassment came from Ms. Stapp’s 

nonsupervisory coworkers, for which the County could not be vicariously liable but 

only directly liable if certain additional conditions were met. See Debord v. Mercy 

Health Sys. of Kan., Inc., 737 F.3d 642, 650 (10th Cir. 2013). Ms. Stapp does not 

argue such a claim for direct liability and we therefore do not consider the point. 
11 

She also refers to the two-month delay in her receipt of the pay raise that 

should have taken effect in January 2012. But there is no evidence to suggest this 

omission was anything other than an administrative oversight. Ms. Stapp cites no 

evidence to suggest any tie between the delay and any particular supervisor, let alone 

one with an ageist motivation.6

 Nor does she cite any evidence that she brought the 

omission to the County’s attention and was rebuffed. Again, Ms. Stapp has not 

shown a triable issue of a tangible employment action relating to her HWE and 

constructive discharge claims that would bar the County’s reliance on the 

Ellerth/Faragher defense. 

Finally, she now claims for the first time on appeal (in her reply brief) that she 

was actually fired, citing internal County memoranda referring to her abandonment of 

her job after three shifts of “No Call No Show” culminating in the day she handed in 

her resignation. This argument for a tangible employment action is plainly waived, 

for failure to raise it both in the district court and in her opening brief on appeal—

where she consistently claimed she had been constructively discharged as a result of 

her resignation. See Planned Parenthood of the Rocky Mountains Servs., Corp. v. 

Owens, 287 F.3d 910, 926 n.18 (10th Cir. 2002) (noting argument not raised in 

district court or in opening appellate brief had been “doubly waived”). 

 6

 The record shows only that personnel coordinator Wilhite timely informed 

the payroll department that Ms. Stapp had completed probation and was entitled to 

the associated pay increase, approved by the County Manager. See App. at 118. 
12 

D. County’s Establishment of Ellerth/Faragher Defense 

As noted above, the Ellerth/Faragher defense has two necessary elements: 

(1) the employer exercised reasonable care to prevent and promptly correct any 

statutorily prohibited harassment; and (2) the plaintiff unreasonably failed to take 

advantage of preventive or corrective opportunities provided by the employer. 

Debord v. Mercy Health Sys. of Kan., Inc., 737 F.3d 642, 653 (10th Cir. 2013). 

“These two elements are designed to encourage forethought by employers and saving 

action by objecting employees.” Id. (brackets and internal quotation marks omitted). 

The first element incorporates both preventive and corrective requirements. 

Id. As for prevention, an employer “acts reasonably as a matter of law to prevent 

harassment if it adopted valid [anti-]harassment policies and distributed those 

policies to employees via employee handbooks, even if it either provided no 

[anti-]harassment training or provided training only to managers.” Id. (brackets 

added; additional brackets and internal quotation marks omitted). Here, the County 

had an anti-harassment policy that provided a procedure for reporting and 

investigating workplace harassment, and Ms. Stapp received a copy of the policy. 

She does not challenge the validity of this policy. In addition, she admitted at her 

deposition that she attended a briefing on workplace harassment given by the County 

Manager and County Attorney, App. at 43, and a workplace harassment seminar, id.

at 44. We agree with the district court that these facts satisfy the County’s burden as 

to reasonable efforts at prevention. See Debord, 737 F.3d at 653-54; Helm v. Kansas, 

656 F.3d 1277, 1289 (10th Cir. 2011). 
13 

As for the correction requirement, an employer must “show that it acted 

reasonably promptly . . . when it was given proper notice of [the employee’s] 

allegations as required under its complaint procedures.” Helm, 656 F.3d at 1290 

(emphasis added and internal quotation marks omitted). There is no evidence 

Ms. Stapp complained of age-based harassment to the person designated by the 

County’s policy to receive and investigate such complaints (personnel coordinator 

Wilhite). She did complain to Ms. Wilhite about hostility in her department—a 

matter that Ms. Wilhite offered to investigate when Ms. Stapp indicated her intent to 

resign—but she has not been able to recall any instance in which she reported to 

Ms. Wilhite harassment on account of her age. Ms. Stapp contends the district court 

incorrectly found that she had never reported age discrimination to Ms. Wilhite, 

citing portions of her affidavit where she recounted two general complaints of 

workplace hostility she made to Ms. Wilhite. See Aplt. Opening Br. at 22. She fails 

to mention that when asked at her deposition whether her complaints to Ms. Wilhite 

ever included reports of age-based conduct, she repeatedly admitted she could not 

recall any. Absent notice, the County cannot be faulted for the lack of a prompt 

investigation into such harassment. 

Turning to the second element of the Ellerth/Faragher defense, an employer 

satisfies its burden “by showing that the victimized employee unreasonably delayed 

in reporting [or never reported] incidents of [prohibited] harassment.” Helm, 

656 F.3d at 1291. We agree with the district court that Ms. Stapp’s failure to report 

age-based harassment to the person designated in the County policy to receive and 
14 

investigate such complaints—a failure for which she has provided no reasonable 

excuse—establishes the second element of the Ellerth/Faragher defense. See Ellerth, 

524 U.S. at 765 (directing that “any unreasonable failure to use any complaint 

procedure provided by the employer . . . will normally suffice to satisfy the 

employer’s burden under the second element of the [Ellerth/Faragher] defense”). 

III. RETALIATION CLAIM 

“A prima facie case of retaliation [under the ADEA] requires the plaintiff to 

show that (1) he or she engaged in protected opposition to discrimination, (2) a 

reasonable employee would have considered the challenged employment action 

materially adverse, and (3) a causal connection existed between the protected activity 

and the materially adverse action.” Hinds v. Sprint/United Mgmt. Co., 523 F.3d 

1187, 1202 (10th Cir. 2008). The district court held that Ms. Stapp failed to make 

this showing. After assuming for sake of argument that Ms. Stapp had engaged in 

protected activity7

 and that the delayed pay raise and at least some of her workplace 

conditions would qualify as materially adverse for purposes of a prima facie case for 

retaliation, the district court held there was insufficient evidence to demonstrate a 

 7

 “[T]o qualify as protected opposition the employee must convey to the 

employer his or her concern that the employer has engaged in a practice made 

unlawful by the ADEA. General complaints . . . will not suffice.” Hinds, 523 F.3d at 

1203 (footnote omitted). The district court noted that “[w]hile [Ms. Stapp] failed to 

give Ms. Wilhite any indication that the unpleasant conditions were due to her age, 

[she] did specifically inform [senior booking officer Rhonda] Long that she was 

offended by ageist remarks.” Dist. Ct. Doc. 46 at 19. The district court “presume[d] 

without deciding” that Ms. Stapp’s communication with Ms. Long was protected 

activity under the ADEA. Id. at 19 & n.1. On that basis, the district court proceeded 

through the remaining steps of the prima facie case analysis. 
15 

triable issue as to the requisite causal connection between the former and the latter. 

We agree. 

The district court reasoned as follows: 

A causal connection can be demonstrated by evidence of circumstances that 

justify an inference of retaliatory motive, such as protected conduct closely 

followed by adverse action. However, a causal connection cannot be 

demonstrated where the timeline of events suggests that the adverse 

employment action was not caused by the protected activity. 

. . . 

Plaintiff fails to identify the date in which she spoke to Ms. Long about the 

offending comments, and as a result she cannot demonstrate which activity 

occurred before her meeting with Ms. Long and which activity occurred 

after. Plaintiff offers no evidence that the unpleasant work conditions were 

caused by her protected activity as opposed to her age or some other reason. 

In addition, while there is no indication of why the pay raise was not 

received prior to the pay period of March 4, 2012, Plaintiff has provided no 

evidence whatsoever that this delay was due to her complaint about age 

discrimination. With no evidence other than continued unpleasant 

conditions and a delayed pay raise, Plaintiff has failed to establish 

retaliation based on her protected activity. 

Dist. Ct. Doc. 46 at 20-21 (citations and internal quotation marks omitted). 

In her opening brief on appeal, Ms. Stapp focuses her retaliation argument on an 

alleged rise in hostility following a complaint she made about her coworkers to Detention 

Center Administrator Tori Sandoval. See Aplt. Opening Br. at 25-26. But she could 

recall objecting only to her coworkers’ rudeness and could not recall ever telling 

Ms. Sandoval about any age-related comments. See App. at 49. Thus, as with her 

complaints to Ms. Wilhite, the complaint to Ms. Sandoval was not protected activity 

under the ADEA and does not figure into the retaliation analysis. See supra note 7. 
16 

Finally, in her reply brief Ms. Stapp refers to the newly raised contention that the 

County actually fired her, and insists that her termination reflects retaliation. We do not 

consider this point here for the same reasons we do not consider it in connection with our 

analysis of the Ellerth/Faragher defense. 

IV. CONCLUSION 

The judgment of the district court is affirmed. 

ENTERED FOR THE COURT, 

Scott M. Matheson, Jr. 

Circuit Judge