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

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### June 2, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

ADRIAN OSORNIO; BETSY MARTINEZ; JESSICA WILLIAMS; ISTQUIA REYNA; MIGUEL FONTANET; MAYRA CARMONA,

Plaintiffs-Appellants,

v. T-MOBILE USA, INC.,

Defendant-Appellee. No. 05-1379 (D.C. No. 04-CV-1135-REB-PAC)

(D. Colo.)

ORDER AND JUDGMENT *

Before BRISCOE , McKAY , and BRORBY , Circuit Judges.

Plaintiffs Adrian Osornio, Betsy Martinez, Jessica Williams, Istquia Reyna, Miguel Fontanet, and Mayra Carmona appeal from the district court’s entry of summary judgment in favor of defendant T-Mobile USA , Inc., their former-2-

employer, on their federal discrimination claims un der Title VII of the Civil Rights Act of 1964 and contract or promissory estop pel claims under Colorado state law. We exercise jurisdiction under 28 U.S.C . § 1291 and we affirm.
BACKGROUND Plaintiffs (who are Hispanic), were all members of a bi-lingual team of customer-care representatives in T-Mobile’s call ce nter in Colorado Springs, Colorado. They responded to Spanish-speaking custo mers’ telephone requests for assistance with T-Mobile wireless service. Mr. Oso rnio, as team coach, was held responsible for the team’s service, productivity, a nd work environment. In her supervisory role, his manager (who is also Hispanic ) advised him orally that he should not threaten his team members. On March 10, 2003, the manager met with him and issued a written warning relating to his attendance, job performance, and leadership characteristics such as approachability, interaction, and efforts to maintain a positive work environment. The warning indicated that he was to improve his performance by March 31, 2003. Two days later, the manager conducted a meeting att ended by three members of Mr. Osornio’s team. A team member who i s not a party to this action told the manager that Mr. Osornio had held a meetin g at which he told team members that he had received a written warning and that his job was at stake due to the team’s failure to meet performance goals. T he team member felt that the-3-

underlying message was that all of their jobs were in jeopardy. Plaintiff Mayra Carmona generally corroborated this account. The manager discussed Mr. Osornio’s team meeting wi th other management and human resources personnel. The group agreed th at his comments amounted to an implicit threat to team members’ continued emplo yment and that he should be discharged for creating a poor work environment. T -Mobile terminated Mr. Osornio’s employment that day. Another Hispani c employee replaced Mr. Osornio as coach. When management informed team members that Mr. Osornio would no longer be their coach, the members expressed their disagreement with this decision. Later, team-member plaintiffs signed two letters written by Mr. Osornio and addressed to T-Mobile management, stating that Mr. Osornio had not threatened their jobs. However, they did not conte nd that T-Mobile had discriminated against Mr. Osornio, and they took no other action on his behalf. After Mr. Osornio’s discharge, team-member plaintif fs perceived a deterioration in their conditions of employment. For varying rea sons, all of the plaintiffs have left T-Mobile’s employ. Mr. Osornio and the team members filed this lawsuit . Mr. Osornio asserted that he was subjected to disparate treatment based on his race or national origin. Ms. Martinez, Ms. Williams, Ms. Reyna, Ms. Carmona, and Mr. Fontanet assert-4-

that T-Mobile retaliated against them for complaini ng about the company’s treatment of Mr. Osornio. Mr. Fontanet also allege s that he was subjected to a sexually hostile work environment through the actio ns of the manager who initiated Mr. Osornio’s discharge. All plaintiffs assert that T-Mobile should be held liable under a contract or promissory estoppel theory because it disregarded the terms of its employee manual and other publicat ions.
DISCUSSION We review the district court’s summary judgment dec ision de novo, applying the same legal standards that the districtcourt applied. Pippin v. Burlington Res. Oil & Gas Co ., 440 F.3d 1186, 1191 (10th Cir. 2006). “Summary judgment is proper if the evidence, viewed in the l ight most favorable to the non-moving party, presents no genuine issue of mate rial fact and the court finds the moving party is entitled to judgment as a matte r of law.” Id

. Mr. Osornio’s discrimination claim Mr. Osornio claims that T-Mobile unlawfully discrim inated against him based on his race or national origin. Because he r elied on circumstantial evidence to support his claim, McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), provides the appropriate evaluation framework. See Garrett v. Hewlett-Packard
Co. , 305 F.3d 1210, 1216 (10th Cir. 2002). McDonnell Douglas first requires the aggrieved employee to establish a prima facie case of prohibited employme nt action. . . . If-5-

the employee makes a prima facie showing, the burde n shifts to the defendant employer to state a legitimate, nondiscri minatory reason for its adverse employment action. If the employermeets this burden, then summary judgment is warranted unless the employee can show there is a genuine issue of material fact as to whether the proffered reasons are pretextual. Plotke v. White , 405 F.3d 1092, 1099 (10th Cir. 2005) (quotations and citation omitted). Both parties assume that Mr. Osornio has presented a prima facie case of discrimination and proceed to the question of wheth er T-Mobile had a legitimate basis for its termination decision. T-Mobile’s pro ffered reason is its professed belief that, just two days after being placed on wr itten warning, Mr. Osornio held a team meeting at which he exhibited poor leadershi p and created a negative work environment. Mr. Osornio counters that this reasoncan be determined pretextual because: (1) he did not, in fact, threaten the tea m’s jobs; (2) T-Mobile failed to follow its normal progressive discipline policy; an d (3) T-Mobile did not comply with Mr. Osornio’s request for a thorough post-term ination investigation. Mr. Osornio’s pretext argument requires the court t o “examine the facts as they appear to the person making the decision,” to determine “not whether [the employer’s] proffered reasons were wise, fair or co rrect, but whether [it] honestly believed those reasons and acted in good faith uponthose beliefs.” Rivera v. City & County of Denver , 365 F.3d 912, 924-25 (10th Cir. 2004) (quotations omitted). “[A]t issue is whether the evidence of Plaintiff’s misconduct presented to [the-6-

decisionmakers] was so weak that a rational factfin der could infer that [the] expressed reason for terminating Plaintiff must hav e been pretextual.” Id. at 925. Though Mr. Osornio denies that he threatened the te am, he presents no evidence challenging T-Mobile’s perception of his comments. And Mr. Osornio’s claim that T-Mobile fell short of his expectation of progressive discipline adds little to the pretext a nalysis. “The mere fact that an employer failed to follow its own internal procedur es does not necessarily suggest that . . . the substantive reasons given by the emp loyer for its employment decision were pretextual.” Randle v. City of Aurora , 69 F.3d 441, 454 (10th Cir. 1995) (emphasis omitted). Because it is uncontrove rted that T-Mobile decisionmakers did not believe a rigid policy exist ed, “even if the failure to [follow procedure] was a mistake, it was not pretextual.” Id. at 455. Moreover, T-Mobile’s refusal to re-investigate the situation and revisit its decision do not affect the pretext question. See Hardy v. S.F. Phosphates Ltd. , 185 F.3d 1076, 1081-82 (10th Cir. 1999) (rejecting plaintiff’s sug gestions for additional avenues of investigation and concluding that his claim of s uperficial investigation did not “give rise to an inference of pretext”). Because t here is no genuine issue of material fact concerning pretext and because T-Mobi le was entitled to judgment as a matter of law, we affirm the district court’s decision granting the motion for summary judgment on Mr. Osornio’s discrimination cl aim.-7-

Team members’ retaliation claims The team members assert that, after they opposed Mr . Osornio’s discharge, they were subjected to illegal retaliatory conduct. A prima facie case of retaliation under Title VII requires a showing that(1) plaintiffs were “engaged in protected opposition to discrimination;” (2) they “ suffered an adverse employment action; and (3) a causal connection existed between the protected activity and the adverse employment action.” Miller v. Auto. Club of N.M., Inc ., 420 F.3d 1098, 1119-20 (10th Cir. 2005). Here, the team members’ case fails at the first ele ment. There is no evidence that any of them ever complained that Mr. Osornio’s discharge was discriminatory or related to his national origin orrace. Accordingly, T-Mobile was entitled to summary judgment on the retaliation claims.
Mr. Fontanet’s sexual harassment claim Mr. Fontanet has raised a claim of hostile work env ironment sexual harassment predicated on the actions of a female ma nager. “For a hostile environment claim to survive a summary judgment mot ion, a plaintiff must show that a rational jury could find that the workplace was permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s e mployment and create an abusive working environment.” MacKenzie v. City & County of Denver , 414 F.3d 1266,-8-

1280 (10th Cir. 2005) (quotation and alteration omi tted). “Severity and pervasiveness are evaluated according to the totali ty of the circumstances, considering such factors as the frequency of the di scriminatory conduct; its severity; whether it is physically threatening or h umiliating, or a mere offensive utterance; and whether it unreasonably interferes w ith an employee’s work performance.” Chavez v. New Mexico , 397 F.3d 826, 832 (10th Cir. 2005) (citation and quotation omitted). Mr. Fontanet’s account depicts inappropriate conduc t on the part of the manager. According to Mr. Fontanet, the manager ab used her authority to supervise his telephone interactions by sitting unn ecessarily close to him, placing her hand on the upper half of his thigh, and lettin g it linger there. This happened three times; the last time occurred after Mr. Fonta net asked her not to touch him. Also, she greeted Mr. Fontanet twice with “a full-b ody hug, full contact,” Aplt. App. at 197-203, even though he told her he didn’t “appreciate . . . [b]eing touched or hugged,” id. at 201. The manager’s actions could be characterized as pre datory and, at the very least, incompatible with a proper work environment. Nevertheless, we cannot conclude that the five incidents described by Mr. F ontanet are indicative of a hostile work environment. See Penry v. Fed. Home Loan Bank, 155 F.3d 1257, 1260-63 (10th Cir. 1998) (holding that “four specif ic acts of unwanted physical1 We note, however, that Ms. Carmona, Mr. Fontanet an d Ms. Williams left

T-Mobile’s employ voluntarily. Their claims of con structive discharge have no logical connection to claims of procedurally improp er termination. -9- contact” and several gender-based comments were ins ufficient for “a rational jury [to] find that plaintiffs’ workplace was permeated with discriminatory intimidation”). We affirm the grant of summary jud gment for T-Mobile on Mr. Fontanet’s hostile environment claims. State-law contract and promissory estoppel claims All plaintiffs claim that, by discharging them with out following progressive disciplinary procedures, T-Mobile breached their co ntracts of employment or broke other enforceable promises in violation of Co lorado law. 1 In Colorado, “an employee hired for an unspecified period of time is presumed to be an ‘at-will employee’ whose employment may be terminated without cause or notice and such termination does not give rise to a cause of a ction.” Evenson v. Colo. Farm
Bureau Mut. Ins. Co ., 879 P.2d 402, 408 (Colo. Ct. App. 1993). This g eneral rule does not apply, however, if the employer has limite d its right to terminate employees. Id. at 408-09. A employer may make specific discipline and termination procedures part of an express or implicit employment agreement.

Whether an alleged promise is claimed to be part of an express contract or is asserted as the basis for the applic ation of promissory estoppel, it must be sufficiently specific so that the judiciary can-10-

understand the obligation assumed and enforce the p romise according to its terms. Thus, in order to constitute an enforceable promise , a statement by the employer must meet two requirement s. It must disclose a promissory intent or be one that the emp loyee could reasonably conclude constituted a commitment by the employer. Hoyt v. Target Stores , 981 P.2d 188, 194 (Colo. Ct. App. 1998) (citation omitted). In the absence of a written promise from the employ er, the “issue should be submitted to the jury if there is evidence that the employer’s supervisors treat the disciplinary procedures as mandatory.” Mariani v. Rocky Mountain Hosp. & Med.
Serv. , 902 P.2d 429, 435 (Colo. Ct. App. 1994). A mandatory policy is demonstrated by evidence that “the procedures were used in each instance of termination generally” and “the procedures were alw ays used with reference to employees in plaintiff’s department or at her level of management in the company.” Id. Here, plaintiffs fail to provide any T-Mobile state ment committing to progressively severe discipline before a resort to termination. In fact, the only documentary evidence shows T-Mobile’s explicit disc laimer of an intent to alter the at-will employment relationship. Plaintiffs re ly entirely on a former manager’s testimony on her understanding that T-Mob ile follows progressive discipline steps with under-performing employees. Under the standards2 Plaintiffs’ brief also mentions that Mr. Osornio’s promissory estoppel claim

is based on the unfavorable results of T-Mobile’s p ost-termination alternative resolution process. See Aplt. Br. at 25-26. He contradicts his own claim, however, with the deposition statement that he lear ned of the process only after his discharge. Aplt. App. at 464. An actionable p romissory estoppel claim requires a showing that the employee reasonably rel ied on the policy at issue to his detriment. See Patzer v. City of Loveland, 80 P.3d 908, 912 (Colo. Ct. App. 2003) (explaining that reasonable reliance is an es sential element of a promissory estoppel claim). -11- established by the Colorado courts, the former mana ger’s imprecise statements do not demonstrate a mandatory progressive discipline policy. 2 Because plaintiffs’ evidence does not suggest an al teration in their at-will status, there are no material issues of disputed fa ct relative to their contract and promissory estoppel claims. The district court correctly granted T-Mobile’s summary judgment motion on these claims. The judgment of the district court is AFFIRMED.

Entered for the Court

Monroe G. McKay Circuit Judge