*This order and judgment is not binding precedent, except under the

doctrines of 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

JUL 16 2003

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SHIRLEY A. MUHLEISEN,

Plaintiff-Appellant, No. 02-1447

v. (D.C. No. 00-B-2276 (PAC))

ANTHONY J. PRINCIPI, Secretary of

Veterans Affairs,

(D. Colo.)

Defendant-Appellee.

 

ORDER AND JUDGMENT*

Before TACHA, Chief Judge, McKAY and McCONNELL, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

This is a pro se appeal of an action pursuant to Title VII of the Civil Rights

Act of 1964, 42 U.S.C. §§ 2000e - 2000e-17. Appellant alleged discrimination

based on her gender and a disability, bipolar disorder. She further alleged that
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this discrimination resulted in a failure to promote, a hostile work environment,

retaliation for complaints, and other disparate treatment. Finally, Appellant

alleged constructive discharge from the Veterans Administration. Reading

Appellant’s brief liberally, she appeals the entry of summary judgment in favor of

Appellee and alleges misconduct on the part of the district court. See Ledbetter

v. Topeka, Kan., 318 F.3d 1183, 1187 (2003) (stating that we construe pleadings

by pro se litigants liberally). 

We first address Appellant’s claims that the district court deprived her of

her right to object to the recommendations of the magistrate judge. Appellant

alleges that, following the issuance of the magistrate judge’s recommendation, the

district court took less than a week to review her objections–which included a

fifty-page narrative and fifty exhibits–before granting summary judgment. More

precisely, Appellant claims that the district court did not read the objections

before issuing its opinion, thereby depriving her of her right to object. 

The only facts that Appellant provides in support of her serious accusation

that the district court failed to read her objections is the length of time that the

district court considered the objections and the fact that the court did not find her

objections persuasive. Without more, she has not demonstrated that she was

denied a right to object to the magistrate judge’s recommendation. It is not

necessary for the district court to repeat what is found in the magistrate judge’s
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recommendation if it finds no merit to the objections.

Furthermore, we note that Appellant appears to have included evidence in

her objections and the attached exhibits that was not presented to the magistrate

judge. The district court was under no obligation to consider evidence introduced

for the first time in an objection to the magistrate judge’s recommendation. See

Fed. R. Civ. P. 72(b). Nevertheless, because the district court appears to have

considered the evidence introduced as exhibits to Appellant’s objections, we take

that evidence into consideration as part of our de novo review. 

We also note that this case came to the district court on a motion for

summary judgment and that, therefore, the district court’s responsibility was not

to make findings of fact but rather to determine whether any factual issues

existed. Considering the magistrate judge’s detailed discussion of the allegations

and the supporting evidence, such a determination did not require an additional

detailed explanation. Our obligation on appeal is identical to that of the district

court. While we will discuss each of the issues, we, like the district court, are

under no obligation to do so.

In reviewing a grant of summary judgment, we must determine whether,

viewing the record in the light most favorable to the non-moving party, there

exists any genuine issue of material fact. Simms v. Oklahoma ex rel. Dep’t of

Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999);
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Wolf v. Prudential Ins. Co. of America, 50 F.3d 793, 796 (10th Cir. 1995). 

To prevail on her Title VII claims, Appellant bears the burden of

establishing a prima facie case of discrimination. McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-04 (1973). The district court, in adopting the

magistrate judge’s recommendations, held that Ms. Muhleisen had failed to

establish a prima facie case of discrimination with respect to the claims of failure

to promote, disparate treatment, hostile work environment, and retaliation. We

address these claims in turn. 

With respect to the failure-to-promote claim, the district court, in adopting

the magistrate judge’s recommendation, held that Appellant had failed to provide

evidence that any similarly-situated male employee was promoted while she was

not. “An employee is similarly situated to the plaintiff if the employee deals with

the same supervisor and is subject to the ‘same standards governing performance

evaluation and discipline.’” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d

1220, 1232 (10th Cir. 2000) (quoting Aramburu v. Boeing Co., 112 F.3d 1398,

1404 (10th Cir. 1997)).

In her objections, Appellant argues that she was similarly situated with

every nurse in the hospital. See Objection to Recommendation, R., Vol. II, at 3. 

She explains that since all nurses in the hospital were subject to temporary

assignment anywhere in the hospital and corresponding temporary changes in
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“first line” supervisor, all nurses in the hospital are similarly situated. 

However, in examining claims of failure to promote, we must look to the

supervisor with responsibility for promoting or recommending promotion. In

Appellant’s case, during the relevant period, she appears to have had two

supervisors. The record indicates that Dr. Thomas Meyer was the supervisor with

ultimate authority over Appellant’s employment status and that Ms. Fletcher was

her “first line” supervisor. The only male employee supervised by Dr. Meyer

during the relevant time period was Mr. Roth. Therefore, as the magistrate judge 

concluded, Mr. Roth was the only similarly-situated male nurse for purposes of

the failure-to-promote claim.

Appellant argues that she had a different “first line” supervisor than Mr.

Roth, but Appellant has not shown that her “first line” supervisor, Ms. Fletcher,

was involved in the denial of Appellant’s promotion. Furthermore, Appellant has

provided no evidence of any male nurse other than Mr. Roth who was supervised

by Dr. Meyer during the relevant period. Likewise, Appellant has not alleged that

Mr. Roth was promoted while she was not. Therefore, we agree with the district

court and the magistrate judge that Appellant failed to establish a prima facie case

of failure to promote.

Appellant’s claim of disparate treatment involves similar issues. Appellant

argues that she was treated differently (i.e. given less desirable assignments than
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nurses with the same or less qualifications, demoted from a position of “charge

nurse,” denied assignments befitting her level of experience and education) than

similarly situated male nurses. With respect to this claim, Appellant is again

required to show that she was treated differently than a similarly situated male

nurse. During the relevant time period for this claim, Mr. Roth is again the only

nurse with the same supervisor. Therefore, Appellant must show that she was

treated differently than Mr. Roth.

In her objections and the accompanying exhibits, Appellant provides many

examples of the menial assignments she was given as well as descriptions of her

accomplishments and abilities. These facts indicate that Appellant was often

assigned tasks that could be accomplished by less qualified personnel. 

Appellant’s exhibits also suggest that she was transferred to a position that

involved less managerial and supervisory responsibilities than she had previously

been given.

Nevertheless, as the magistrate judge observed, the record clearly indicates

that Mr. Roth was given similar assignments and was occasionally required to

perform tasks that could have been performed by less qualified personnel. 

Likewise, Appellant has not shown that she was given less desirable assignments

than, or that she was demoted and then replaced by, a similarly-situated male

employee. Therefore, we agree with the district court’s adoption of the magistrate
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judge’s conclusion that there was no evidence of disparate-treatment gender

discrimination. 

Appellant also alleged that the hospital fostered a hostile work

environment. Throughout her objections, Appellant points to evidence that she

was treated poorly by some supervisors and co-workers. In particular, on pages

38 and 39 of her objections, she alleges pranks, theft, vandalism, slander, and

other mistreatment by co-workers and supervisors. While many of these

allegations are unsupported by evidence in the record, for summary judgment

purposes, we will assume the validity of Appellant’s claims. Nevertheless, even

assuming the truth of Appellant’s claims, Appellant has produced no

evidence–either in the form of statements, comments, or conduct–from which we

can infer hostility based on gender. As the magistrate judge explained, Ms.

Muhleisen must submit evidence of a work environment hostile to women because

of their gender. She has failed to do so. Summary judgment on this point was

therefore appropriate.

Appellant also appeals the dismissal of her retaliation claim. Appellant

alleges that she made several complaints, both formal and informal, to her

supervisors and that each complaint was followed shortly by an adverse

employment action. 

To establish a prima facie case of retaliation under Title VII, a

plaintiff must show that (1) he engaged in protected opposition to
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discrimination, (2) his employer subjected him to an adverse

employment action subsequent to the protected activity, and (3) a

causal connection exists between the protected activity and the

adverse employment action.

Pastran v. K-Mart Corp., 210 F.3d 1201, 1205 (10th Cir. 2000) (citing McGarry v.

Bd. of County Comm'rs of the County of Pitkin, 175 F.3d 1193, 1201 (10th Cir.

1999)). To qualify as an adverse employment action, the action must “adversely

affect [the employee’s] status as an employee.” See Sanchez v. Denver Pub.

Schs., 164 F.3d 527, 533 (10th Cir. 1998).

Appellant alleged several instances of retaliation. The magistrate judge 

recommended dismissing all of them. The magistrate judge concluded (1) that

some of the alleged instances of retaliation occurred prior to any alleged protected

activity, (2) that some of the alleged actions did not qualify as adverse

employment actions, and (3) that the remaining actions might qualify as adverse

employment actions but Appellant failed to establish a causal connection between

the protected activity and the adverse actions.

We agree with the district court and the magistrate judge that most of the

alleged retaliatory actions (i.e. general mistreatment, reprimands, and derogatory

comments) do not qualify as adverse employment actions because they did not

affect Appellant’s employment status or compensation. For the reasons explained

by the magistrate judge, those allegations do not raise factual inferences of

retaliation.
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However, the magistrate judge concluded that Appellant’s claims that she

was denied a two-step pay raise and 300 hours of leave in 1999 do qualify as

adverse employment actions because they affect her compensation. Nevertheless,

the magistrate judge also concluded that Appellant had failed to establish a

genuine issue of material fact of a causal connection between the adverse

employment action and her complaints. 

“A causal connection is established where the plaintiff presents evidence

sufficient to raise the inference that her protected activity was the likely reason

for the adverse action.” Corneveaux v. CUNA Mut. Ins. Group, 76 F.3d 1498,

1507 (10th Cir. 1996) (internal citation and quotation omitted). A plaintiff need

only establish a circumstantial case “that justif[ies] an inference of retaliatory

motive.” Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10th Cir.

1982). 

With respect to her claims that she was denied a two-step pay raise and 300

hours of leave, Appellant has supplied no new evidence in her objections that was

not considered by the magistrate judge. Therefore, there is no reason to repeat the

exhaustive discussion of these issues provided by the magistrate judge in the

Recommendation. For the reasons given by the magistrate judge, we conclude

that Appellant has failed to establish, even by circumstantial evidence, a genuine

issue of causation with respect to the denied pay raise and leave.
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Finally, the magistrate judge recognized two other alleged retaliatory

actions that could qualify as adverse employment actions but which occurred prior

to any protected activity by Appellant. These two actions include a delay in

promotion and the denial of performance reviews for 1996-97. In reaching this

conclusion, the magistrate judge determined that Appellant had not demonstrated

that she had complained to her supervisors on any specific occasion prior to her

first EEO charge on September 12, 1997.

In her objections, Appellant provided new evidence not given to the

magistrate judge, which she characterizes as three instances of protected activity

prior to the September 12, 1997, EEO charge. The first alleged instance is an

EEO charge that she filed in 1996 but then withdrew prior to any alleged

retaliation. Appellant has alleged no causal connection between this charge and

any retaliatory action. 

The second instance includes two worker’s compensation claims filed in

February and May of 1997. Appellant alleges that these claims led to the denial

of a promotion several months later–an action which would qualify as an adverse

employment action. However, Appellant has failed to identify which individuals

were involved in the processing of the worker’s compensation claim prior to the

denial of the promotion or even which supervisors might be aware of the claims. 

Furthermore, as discussed by the magistrate judge, Appellant has failed to
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establish that her supervisors made any effort to withhold the promotion from her. 

The final alleged instance of protected activity prior to September 1997,

was an e-mail to her supervisors on July 21, 1997, in which she expresses her

concern that her skills as a nurse are being underutilized. See Objection to

Recommendation, R., Vol. II, at 43, and Exhibit 29. Appellant has not explained

how this e-mail was related to her delayed promotion or that it was even sent to

anyone involved in the promotion process. Appellant has, therefore, failed to

establish the existence of a genuine issue of material fact of a causal connection

between these actions and her prior complaints. We therefore conclude that

summary judgment on the retaliation claim was not in error.

Finally, we turn to Appellant’s claim of constructive discharge. The

magistrate judge concluded that Appellant had failed to provide evidence that her

working conditions were “objectively unreasonable.” Instead, Appellant showed

evidence that her subjective expectations were not met and that she had personal

conflicts with supervisors and co-workers. None of this is sufficient to show

objective unreasonableness. For the reasons articulated by the magistrate judge,

we conclude that the constructive discharge claim was properly dismissed.

Following a thorough review of the record, the briefs, the magistrate

judge’s recommendation, and Appellant’s lengthy objections to the magistrate

judge’s recommendation, we conclude that for reasons substantially the same as
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those adopted by the district court in its Order dated September 17, 2002, the

district court did not err in granting Appellee summary judgment.

AFFIRMED.

Entered for the Court

Monroe G. McKay

Circuit Judge