*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand 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 

### MAY 7 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ BARBARA J. HOLMES, Plaintiff-Appellant,

v. REGENTS OF THE UNIVERSITY OF COLORADO, Defendant-Appellee. No. 98-1172 (D. Colo.) (D.Ct. No. 97-N-1231)

____________________________ ORDER AND JUDGMENT *

Before BRORBY , HOLLOWAY , and BRISCOE , Circuit Judges.

Plaintiff-Appellant, Barbara J. Holmes, Ph.D. (Dr. Holmes), appeals a district court order granting summary judgment in f avor of the Regents of the University of Colorado. Dr. Holmes alleges she suf fered age and race discrimination while employed by the University of Colorado at Denver (the University) and seeks damages under the Age Discrim ination in Employment Act-2-

(ADEA), 29 U.S.C. §§ 621 - 634; Title VII of the Ci vil Rights Act of 1964, 42 U.S.C. §§ 2000e - 2000e-17, amended by Civil Rights Act of 1991, 42 U.S.C. § 1981a; and 48 U.S.C. § 1983. We exercise jurisdi ction under 28 U.S.C. § 1291 and affirm.

I. Background Dr. Holmes is a sixty-four-year-old African-American woman hired by the University as an Associate Professor and Chairperso n of the school’s Communications Department in June 1992. She origin ally negotiated and signed a three-year contract with the University for a ten ure-track position at a salary commensurate with the national average for similar institutions. Her salary included additional compensation for her duties as Chairperson. However, Dr. Holmes’ term as Chairperson of the Communications D epartment was short-lived. In September 1993, the University removed her from the position based on complaints that: (1) she was not pursuing a course of development for the department the other faculty members agreed with; ( 2) she was not listening to input from other faculty members; (3) she was not p erforming the research and publication necessary to achieve tenure; and (4) th e department was suffering from significant internal strife under her leadersh ip. Following her removal, Dr. Holmes pursued no immediate legal action against th e University and continued-3-

in her position as an associate professor.

In the fall of 1994, Dr. Holmes underwent her three -year tenure review. Based in part on a positive review and the recommen dation of her colleagues in the Communications Department, the University reapp ointed Dr. Holmes as an associate professor for two more years. Despite su ccessfully maintaining her employment with the University and being the highes t paid professor in the Communications Department, Dr. Holmes asserts she w as the victim of numerous instances of age and race discrimination throughoutthe time of her employment.

In August 1996, nearly three years after her remova l as Chairperson of the Communications Department, she sued the University in Denver District Court alleging breach of her original employment contract . The parties ultimately settled the matter when Dr. Holmes agreed to dismis s the suit with prejudice in return for $18,390 in damages. As part of the sett lement, she signed a full release and settlement agreement waiving any furthe r claims against the University with regard to her removal as Chairperso n.

Nevertheless, on May 30, 1997, Dr. Holmes again fil ed suit in Denver District Court against the University, this time al leging employment-4-

discrimination under Title VII, the ADEA, 42 U.S.C. § 1983, and the Equal Pay Act, 29 U.S.C. § 206. In her complaint, she assert ed both disparate treatment and hostile work environment claims. Some of the instances of alleged discriminatory conduct by University officials and employees Dr. Holmes cited to support her claims include: 1. The University administration’s failure to timely complete her paperwork for health insurance and other benefits when she st arted her employment. 2. A colleague’s distribution of a draft memo describ ing the credentials of people within the the Communications Department whi ch referred to Dr. Holmes as “an African-American woman” and did not –in Dr. Holmes’ opinion – sufficiently describe her qualifications. 3. Alleged statements by colleagues and supervisors D r. Holmes says she overheard and her own impression that the University was recommending her reappointment with the understanding she would retire before achieving tenure. 4. A colleague’s self-deprecating comments about his own age, which Dr. Holmes interpreted to be directed at her. 5. Individuals at the University purportedly looking “askance” at Dr. Holmes in reaction to her race. 6. The University’s payment of a higher salary to two other allegedly-5-

“similarly situated” white male faculty members in other departments. 7. The University’s refusal to grant Dr. Holmes tenur e after her third-year review. 8. The University’s failure to fully advise her of al l the “problems” in the Communications Department before she was hired. 9. Alleged statements by colleagues implying that Dr. Holmes received her position and other privileges because she was an “a ffirmative action hire.” 10. An incident where Dr. Holmes found the plaque cont aining the University’s affirmative action policy had inexplic ably fallen or been knocked off the wall of her office and broken. 11. The department Chairperson giving what Dr. Holmes felt was insufficiently positive support for her reappointment. 12. The University’s failure to make sufficient expres sion of condolences after Dr. Holmes’ daughter died. 13. A supervisor’s failure to notify Dr. Holmes of heroption to delay her tenure clock with regard to her fifth-year review i n 1996. 14. A supervisor’s characterization of the fifth-year tenure process as mandatory, even though other white male professors were not subject to the review. 15. Allegedly inappropriate race-related questions Dr. Holmes overheard a-6-

colleague asking a student during a masters thesis defense. 16. Her removal as Chairperson of the department in 19 93.

After removing the case to the United States Distri ct Court for the District of Colorado based on the federal questions presente d, the University filed a motion for summary judgment arguing: (1) relevant statutes of limitations bar consideration of certain instances of conduct used to support Dr. Holmes’ Title VII, ADEA, and § 1983 claims; (2) principles of res judicata and the binding effect of the previously executed release and settl ement agreement restrict the court’s consideration of certain allegations Dr. Ho lmes made; (3) without evidence of gender discrimination, Dr. Holmes’ has no claim for relief under the Equal Pay Act; and (4) her remaining, timely instan ces of alleged discrimination fail to state a cognizable claim for race or age di scrimination under any circumstances. In response to the University’s mot ion, Dr. Holmes waived her Equal Pay Act claim, but argued the continuing viol ation doctrine tolled the relevant statutes of limitation and preserved her o therwise untimely claims of age and race discrimination. In addition, she asserted res judicata and the prior settlement agreement only barred relitigation of he r contract claim, not an action for discrimination based in part on her removal as Chairperson. Finally, she claimed her evidence of alleged race and age discri mination created fact issues-7-

which were more than sufficient to survive the Univ ersity’s motion for summary judgment.

The district court ultimately granted summary judgm ent in favor of the University. In its order, the district court ruledDr. Holmes had no claim under the Equal Pay Act and refused to consider her remov al as Chairperson as evidence of a pattern and practice of race or age d iscrimination, finding her claim barred by principles of res judicata . The district court also decided many of the instances of alleged discriminatory conduct could n ot support Dr. Holmes’ claims because they fell beyond the relevant limitation pe riods for Title VII, the ADEA, and 42 U.S.C. § 1983. Finally, the court found the remaining instances of conduct insufficient to create genuine issues of material fact.

II. Discussion Dr. Holmes raises several issues for our considerat ion. First, whether the court erred in its decision by resolving material q uestions of fact regarding her claims. Second, whether the district court inappropriately applied res judicata to bar consideration of her removal as Chairperson of the Communications Department in 1993 as evidence of a pattern and pra ctice of discrimination. Third, whether the court incorrectly interpreted th e settlement and release1 We note at the outset, that because motions for summary judgment necessarily

implicate “‘the substantive evidentiary standard of proof that would apply at the trial on the merits,’” Public Serv. Co. v. Continental Cas. Co. , 26 F.3d 1508, 1517 n.8 (10th Cir. 1994) (quoting Liberty Lobby, 477 U.S. at 252), the content and substance of evidence Dr. Holmes presents to support her claims must be both admissible and probative. See Thomas v. IBM

, 48 F.3d 478, 485 (10th Cir.1995) (ruling the court may only consider admissible evidence in reviewing an order granting summary judgment); Liberty Lobby, -8- executed by the parties in 1996. Fourth, whether the district court appropriately refused to apply the “continuing violations doctrin e” to toll the statute of limitations with regard to her Title VII, ADEA, and42 U.S.C. § 1983 claims. And finally, whether the court erred in holding the instances of alleged discriminatory conduct failed to state a claim of r ace or age discrimination.

We review the district court’s order granting summary judgment de novo, employing the same legal principles as the districtcourt and construing the factual record and the reasonable inferences theref rom in the light most favorable to the party opposing summary judgment. See Byers v. City of Albuquerque , 150 F.3d 1271, 1274 (10th Cir. 1998). Summary judgmentis appropriate if the record shows “there is no genuine issue as to any m aterial fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). An issue of material fact is genuine only if a party presents facts sufficient to show that a reasonable jury could find in favor of the nonmovant. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). 1477 U.S. at 249-50 (finding summary judgment evidence must be not merely “colorable,”

but “significantly probative”). We review Dr. Holmes’ claims with these standards governing our analysis of her proffered evidence of discrimination.

2This court has never specifically held whether the continuing violation theory applies to claims brought under 42 U.S.C. § 1983, see Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir.1994). Analogous cases indicate it may not. For example, in Thomas v. Denny's, Inc ., 111 F.3d 1506, 1514 (10th Cir. 1997), we acknowledged in the context of a 42 U.S.C. § 1981 action that "the continuing violation theory is a creature of the need to file administrative charges, and because [this type of] claim does not require filing such charges before a judicial action may be brought, the continuing violation theory is simply not applicable." 111 F.3d at 1514. Nevertheless, because we find the continuing violation theory inapplicable to the facts of this case, we need not reach the question of whether it tolls the limitation period in the § 1983 context.

-9- A. Timeliness of Claims – Effect of the Statute of Li mitations Dr. Holmes argues the continuing violation doctrine applies to save her claims, which are based on instances of allegedly d iscriminatory conduct occurring beyond the limitations periods under Titl e VII, the ADEA, and 42 U.S.C. § 1983. 2 After a thorough review of the record and applicable law, we are convinced the court properly considered Dr. Holmes’ allegations time-barred, and refused to accept her argument that the “continuing violation theory” tolled the limitations period and preserved her claims.

This court has held "[t]he continuing violation doc trine permits a Title VII plaintiff to challenge incidents that occurred outs ide the statutory time limitations of Title VII if such incidents are sufficiently rel ated and thereby constitute a-10-

continuing pattern of discrimination." Hunt v. Bennett , 17 F.3d 1263, 1266 (10th Cir.), cert. denied , 513 U.S. 832 (1994). The doctrine "is premised o n the equitable notion that the statute of limitations sh ould not begin to run until a reasonable person would be aware that his or her ri ghts have been violated." Martin v. Nannie & The Newborns, Inc. , 3 F.3d 1410, 1415 n.6 (10th Cir.1993). For purposes of determining whether a continuing vi olation has occurred, we examine: (1) the subject matter of the prior violation to determine whether it constitutes the same or similar type of discriminat ion; (2) the frequency of the conduct; and (3) permanence – i.e. , “whether the nature of the violations should trigger an employee's awareness of the need to asse rt her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate." Martin , 3 F.3d at 1415. The court in Martin specifically noted that “if an event or series of events should have alerted a reasonable person to act to assert his or her rights at the time of the violation, the victim cannot later rely on the continuing violation doctrine to overcome the statutory requirement of filing a charge with the EEOC with r espect to that event or series of events.” Id. at 1415 n.6.

In this case, we find Dr. Holmes’ arguments fail the Martin test. Although the subject matter of her alleged instances of disc rimination does not vary, the3 Dr. Holmes argues that her awareness of the University’s alleged discrimination

as early as March 1993 does not preclude the application of the continuing violation theory to preserve her claims. For support, she points to our holding in Martin , where the court applied the continuing violation theory to allow a plaintiff to raise otherwise untimely evidence of sexual harassment – including an alleged rape – even though the plaintiff obviously knew the conduct was discriminatory at the time the events occurred. See Martin , 3 F.3d at 1416. We distinguish Martin , by emphasizing that the court based its decision to apply the continuing violation theory almost exclusively on the first two factors of subject matter and frequency, and specifically admitted “[t]he third factor of permanence is more difficult for [the plaintiff]” because “some of the events, including the rape, should have been reported at the time they occurred.” See id. Indeed, the court in Martinacknowledged that no one factor is necessarily dispositive, but courts should consider the factors together to decide whether to apply the continuing violation theory. Id. at 1415-16. In Dr. Holmes’ case, viewing the factors collectively, we find the scales weigh against applying the continuing violation theory because her claims fail both the frequency and permanence prongs.

-11- occurrences are relatively infrequent when compared to the length of time addressed in her complaint. The occurrences Dr. Ho lmes mentions are sporadic and varying types of employer actions, not frequent ly recurring instances of similar race or age-related discriminatory conduct. In addition, the “permanent” nature of the violations she alleges plainly shouldhave triggered her awareness of the need to assert her rights. Dr. Holmes speci fically admitted she was convinced the University was discriminating againsther as early as March 1993, but she did nothing to assert her rights at that time. 3 Given these facts, and the equitable underpinnings of the continuing violation theory, we are reluctant to invoke the doctrine to benefit someone who knew orreasonably should known her rights were being violated and yet did not act in a timely manner to assert4As an alternative to this usual approach, plaintiffs may prove a continuing

violation “with evidence of a pervasive, institutionalized system of discrimination . . . which typically involves discrimination through an employer's policies or practices." Purrington v. University of Utah , 996 F.2d 1025, 1029 (10th Cir.1993) (quotation marks and citation omitted). Dr. Holmes does not pursue this approach or present any evidence remotely indicating a university-wide system of discrimination.

-12- those rights. Because the alleged conduct was infr equent, and Dr. Holmes knew of the discrimination years ago and yet did nothing about it, we decline to apply the continuing violation theory to preserve her claims. 4

We agree with the district court that for purposes of both Title VII and the ADEA, only conduct occurring within 300 days before Dr. Holmes’ filed her claim with the Colorado Civil Rights Division is timely. See 42 U.S.C. § 2000e-5(e)(1) (requiring person aggrieved to file within 300 days of the alleged unlawful employment practice, if proceedings were i nitially instituted with state agency with authority to grant or seek relief). Be cause Dr. Holmes filed charges on June 11, 1996, we will not consider instances of alleged discriminatory conduct occurring before August 16, 1995. As for D r. Holmes’ 42 U.S.C. § 1983 claim, because no federal law provides a period of limitation, we must “apply the relevant state statute of limitations applicable to such actions.” Hunt , 17 F.3d at 1265. In Colorado, a two-year statute of limitatio ns applies to “actions upon liability created by a federal statute.” See Colo. Rev. Stat. § 13-80-102(1)(g).-13-

Therefore, because Dr. Holmes initiated this presen t suit in state court on June 4, 1997, we only consider timely those incidents occurring after June 4, 1995.

B. Effect of Res Judicata and Prior Settlement Agreement Although the parties addressed the effect of res judicata and the prior settlement agreement at length in their pleadings b efore the district court and before us on appeal, we find it unnecessary to rule on these issues. Dr. Holmes’ removal as Chairperson occurred in 1993, well beyon d the relevant limitations period under either Title VII, the ADEA, or 42 U.S. C. § 1983. We already have declined to apply the continuing-claim theory to co nsider claims based on alleged instances of discriminatory conduct occurring beyon d the relevant statute of limitations period, thus we need not concern oursel ves with the untimely allegations surrounding Dr. Holmes removal as Chairperson or the effect res judicata and the release and settlement may have on those c laims.

C. Sufficiency of Remaining Claims Having limited the scope of our evidentiary review to only those instances of conduct occurring within the relevant limitation periods, we must now consider the remaining evidence of discrimination t o determine whether it creates a genuine issue of material fact sufficient to surv ive a motion for summary-14-

judgment. We assume, based on the evidence present ed, that for purposes of her Title VII and the ADEA claims, Dr. Holmes asserts b oth a hostile work environment and disparate treatment. Upon review o f the record, we find no triable issue of fact under any of her legal theori es.

1. Disparate Treatment In order to to survive a motion for summary judgmen t with regard to her claim of disparate treatment under Title VII and th e ADEA, Dr. Holmes must meet the initial burden of establishing the prima facie case articulated in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). She must show: (1) she is a member of a racial minority or protected a ge group, (2) she suffered an adverse employment action, and (3) similarly situat ed employees were treated differently. See Trujillo v. University of Colo. Health Sciences Ctr. , 157 F.3d 1211, 1215 (10th Cir. 1998) (modifying the usual McDonnell Douglas prima facie case to fit the context of a disparate treatment c laim). Once she establishes

a prima facie case of age or race discrimination, the burden of production shifts to the University to demonstrate some “legitimate, nondiscriminatory reason" for the adverse employment action. See Texas Dep't of Community Affairs v. Burdine , 450 U.S. 248, 254 (1981). If the University offe rs a nondiscriminatory reason for its decision, then the burden shifts bac k to Dr. Holmes to show there5For the first time on appeal, Dr. Holmes raises the University’s decision not to

renew her contract past the 1998-1999 school year as further evidence of discrimination. However, because the district court did not contemplate her termination in granting -15- remains a genuine dispute of material fact as to wh ether the University's reason for the challenged action is pretextual and unworthy of belief. See Burdine , 450 U.S. at 256; Ingels v. Thiokol Corp ., 42 F.3d 616, 622 (10th Cir.1994). Ultimately, under this burden-shifting scheme, the University is entitled to summary judgment if Dr. Holmes cannot “offer eviden ce tending to show [the University’s] innocent explanation for [its] employ ment decision was false." Randle v. City of Aurora , 69 F.3d 441, 451 n. 14 (10th Cir. 1995).

Considering only timely allegations of discriminati on under the relevant statute of limitations for Title VII and the ADEA, we find the only viable instance of conduct cited by Dr. Holmes that may support an inference of discrimination is the salary disparity between her and other professors at the University and the comprehensive fifth year review that University administrators allegedly told Dr. Holmes was mandatory when, in fa ct, other white male professors were “rubber-stamped through the process ” with “extensive departmental support and guidance.” The other inst ances of conduct Dr. Holmes refers to are either untimely or relevant only to h er hostile work environment claim. 5summary judgment, we cannot consider this evidence in reviewing the court’s ruling. See

John Hancock Mut. Life Ins. Co. v. Weisman , 27 F.3d 500, 506 (10th Cir. 1994) (refusing, in the context of ruling on summary judgment, to consider evidence not part of the record before the district court). Even if we could consider Dr. Holmes’ termination as possible further evidence of discrimination, we have no record to review for the purpose of accurately determining if the decision was, in fact, motivated by improper discriminatory intent, nor has the University had opportunity to explain or refute this new evidence. For all of these reasons, we decline to consider the evidence for the first time on appeal as requested by Dr. Holmes.

-16- In support of her disparate treatment claim before the district court, Dr. Holmes alleges the University paid her less than other younger, non-AfricanAmerican, similarly situated professors. However, the record shows she did not make the prima facie case necessary to support her claim and shift the burden to the University. Her allegations are undermined fro m the start by the undisputed fact that she was the highest paid member of the Co mmunications Department faculty during her employment with the University, and that she made more money than other more experienced colleagues – incl uding white males. In addition, Dr. Holmes relies solely on her own unsup ported conclusions about salary differences between her and professors in ot her departments and fails to demonstrate how they are “similarly situated” in te rms of experience, credentials and accomplishments. Absent some evidence that the other, higher-paid professors are similarly situated, her allegations relating to compensation fail to show even a prima facie case of disparate treatment either on the basis of race or-17-

age sufficient to shift the burden of production to the University. See Pierce v. Commonwealth Life Ins. Co. , 40 F.3d 796, 802 (6th Cir. 1994) (refusing to inf er disparate treatment in a Title VII case until the p laintiff showed the employees treated more favorably are “similarly-situated” in “all of the relevant aspects of his employment situation”).

As for Dr. Holmes’ arguments pertaining to the comp rehensive fifth year review, we find her allegations of disparate treatm ent similarly unavailing. She fails to state a prima facie case because she produces no evidence to support h er conclusory allegations that white male professors i n her department received better treatment from the University during their f ifth year reviews. In fact, Dr. Holmes has not shown she actually suffered an adver se employment action or that the University treated her differently in relation to other similarly-situated professors. The University ultimately granted her request to delay her review, so we have no indication that Dr. Holmes was ever subj ect to a fifth year review or whether that review was different or unfair when co mpared with her colleagues’ treatment. Without more compelling support for herclaim, we find she fails to make her prima facie case. Accordingly, we find the district court pro perly granted summary judgment on all Dr. Holmes’ disparate treatment claims.6Courts have long recognized that hostile environment claims are actionable

under title VII based on race, Meritor Sav. Bank v. Vinson , 477 U.S. 57, 65-66 (1986), but the issue of whether a plaintiff may proceed utilizing a hostile environment theory under the ADEA remains unsettled. Although this circuit has not expressly recognized a cause of action for hostile work environment under the ADEA, it has considered a case where the plaintiff raised the issue. See McKnight v. Kimberly Clark Corp ., 149 F.3d 1125, 1129 (10th Cir. 1998) (considering and deciding a hostile work environment claim under the ADEA, but not addressing the apparent lack of authority for raising such a theory). For purposes of this case, we assume without deciding Dr. Holmes may advance a hostile work environment claim under the ADEA.

-18- 2. Hostile Work Environment The vast majority of the evidence Dr. Holmes presen ts relates to her hostile work environment claim. In order to establish a cl aim of race or age-related hostile working environment under Title VII and the ADEA 6 sufficient to survive a motion for summary judgment, Dr. Holmes must show under the totality of the circumstances that the harassment was pervasive or severe enough to alter the terms, conditions, or privileges of employment, andthe harassment stemmed from race or age-related animus. See Bolden v. PRC Inc. , 43 F.3d 545, 550-51 (10th Cir. 1994) (citing Meritor , 477 U.S. at 67), cert. denied , 516 U.S. 826 (1995). For purposes of evaluating whether a working enviro nment is sufficiently hostile or abusive, we examine: (1) the frequency of the d iscriminatory conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee’s work performance. See Harris v.-19-

Forklift Sys., Inc. 510 U.S. 17, 23 (1993). In addition, we analyze the claims to ensure the environment was both subjectively and objectively hostile or abusive. See Davis v. United States Postal Serv. , 142 F.3d 1334, 1341 (10th Cir. 1998).

Applying these principles, we find Dr. Holmes’ alle gations fall far short of showing pervasive or severe harassment in terms of race or age discrimination. See Bolden , 43 F.3d at 551. The evidence Dr. Holmes proffers is nothing more than a collection of unsubstantiated conclusions an d allegations of a series of unrelated and infrequent incidents of conduct by co lleagues and supervisors she subjectively construes as acts motivated by race orage-related animus. Her “list of grievances includes none of the racial [or age-r elated] comments or ridicule that are hallmarks of hostile work environment claims.” Trujillo , 157 F.3d at 1214. For example, Dr. Holmes’ claims of overheari ng conversations regarding the possibility of her imminent retirement, and a c olleague’s self-deprecating comments about his own age in her presence are hard ly the type of agediscriminatory conduct that meets the threshold req uirements for surviving summary judgment. In addition, Dr. Holmes’ evidenc e of offhand race-related remarks by colleagues, the University failing to gi ve sufficient condolences on the death of her daughter, or other employees looki ng “askance” at her – without further evidence that such conduct was motivated by racial animus – fails to-20-

create a genuine issue of material fact as to wheth er her working environment was permeated by severe and pervasive harassment. At the very worst, Dr. Holmes’ allegations show she suffered from conduct by co-workers and supervisors reflecting insensitivity toward her age and race, but none of her claims evidence the severe, pervasive, and frequentdiscrimination that is required to prove a hostile or abusive work environment. See Meritor , 477 U.S. at 65; Smith v. Northwest Fin. Acceptance, Inc ., 129 F.3d 1408, 1412 (10th Cir. 1997) (explaining the mere utterance of a statementcreating offensive feelings in an employee does not sufficiently affect the condit ions of employment to violate Title VII); Hicks v. Gates Rubber Co. , 833 F.2d 1406, 1412-13 (10th Cir. 1987) (requiring evidence of "a steady barrage of opprobr ious racial comment, " to show a racially hostile work environment.).

In addition, we emphasize that our federal employme nt laws are not intended to remedy every instance of interpersonal conflict occurring in the workplace – only those motivated by improper discri minatory purposes. Admittedly, Dr. Holmes probably endured unhappiness with her job and perhaps even suffered the ill-effects of rumors, petty quar rels, and jealous in-fighting with supervisors and colleagues. However, this evi dence alone indicates nothing more than an unpleasant workplace created by the in ability of co-workers to7Although we do not specifically enumerate and individually address every

allegation of discrimination Dr. Holmes raised, that is not to say we did not consider each event and review them under the totality of the circumstances to arrive at our decision. We simply find it expedient to summarize our conclusion that none of the incidents individually or taken as a whole reasonably suggest the pattern and practice of discrimination Dr. Holmes asserts.

-21- respect, tolerate and cooperate with one another. No matter how unpleasant Dr. Holmes finds such a situation, unless she shows it is charged with race or agerelated animus, her case simply does not rise to th e level of creating a legally redressable hostile work environment claim. In sho rt, after a thorough review of all Dr. Holmes’ allegations, we find her claims leg ally insufficient to create a jury question and survive summary judgment. See, e.g., Pagano v. Frank , 983 F.2d 343, 347 (1st Cir. 1993) (finding that even wh en elusive concepts like motive or intent are in play, summary judgment may be appropriate if nonmoving party rests merely upon conclusory allegations, imp robable inferences, and unsupported speculation). 7

3. 42 U.S.C. § 1983 Dr. Holmes also includes a claim under 42 U.S.C. § 1983 in her original complaint. Section 1983 prohibits any person, acti ng under color of state law, from depriving any other person of any rights, priv ileges, or immunities secured by the Constitution and laws of the United States. See 42 U.S.C. § 1983.-22-

Generally speaking, instances of race discriminatio n and possibly age discrimination may violate the Fourteenth Amendmentright to equal protection of the laws and trigger a § 1983 claim. See Buckley v. Coyle Pub. Schl. Sys. , 476 F.2d 92, 97 (10th Cir. 1973) (finding racially disc riminatory practices violate the Fourteenth Amendment and civil rights statutes). I t appears from Dr. Holmes’ pleadings and brief on appeal that she relies on ex actly the same conduct and allegations giving rise to her Title VII and ADEA c laims to support her § 1983 cause of action. We reiterate that most of these i nstances of alleged discrimination occurred beyond the limitations peri od applicable to 42 U.S.C. § 1983, and therfore we refuse to consider them. H owever, with regard to Dr. Holmes’ timely allegations, for substantially the s ame reasons as articluated above, see Drake v. City of Fort Collins , 927 F.2d 1156, 1162 (10th Cir. 1991) (stating a claim of intentional discrimination unde r 42 U.S.C. § 1983 is subject to the same methods of proof as an analogous claim und er Title VII), we find she raises no genuine issue of material fact as to whet her the University’s alleged harassment amounted to intentional discrimination. The district court appropriately granted summary judgment on her § 198 3 constitutional claim.

III. Conclusion We find upon de novo review of the evidence presented that Dr. Holmes’-23-

claims are either untimely or insufficient to creat e a genuine issue of material fact. Thus, for the reasons stated above, we AFFIRM the decision of the district
court.

Entered by the Court:
WADE BRORBY United States Circuit Judge