UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ ANDREW DAVIS, a Colorado Resident, Plaintiff - Appellant,

v. BAE SYSTEMS TECHNOLOGY SOLUTIONS & SERVICES INC., a foreign corporation, Defendant - Appellee. No. 18-1065 (D.C. No. 1:17-CV -00322-LTB-STV) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before McHUGH , BALDOCK , and O’BRIEN , Circuit Judges.

________________ _________________ Andrew Davis sued his former emp loyer, BAE Systems Technology S olutions & Services Inc., claiming BAE’s re fusal to rehire him was in re taliation for reporting sexual harassment. BAE filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). The district court granted that motion and dismissed Davis’s action with prejudice, ruling th at Davis failed to plead facts supporting a plausible

* After examining the briefs and appellate record, this panel ha s determined unanimously to honor the parties ’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir . R. 34.1(G). The case is ther efore submitted without oral argument. T his order and judgment is no t binding precedent, except under the doctrines of la w of the case, res judicata, an d 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. FILED United States Court of Appeals Tenth Circuit 

### February 28, 2019
Elisabeth A. Shumaker Clerk of Court2 inference that BAE’s refusal to hire him was causally connected to his report of sexual harassment. Davis appeal s. Exercising jurisdiction und er 28 U.S.C. § 1291, we affirm.
BACKGROUND 1 Davis began working at BAE in 2 011 “as a Field Service Represe ntative and Senior Desk Side Support Analys t, providing crucial IT support for the Department of Defense.” Aplt. App. at 9–10 . Davis alleged that his perfo rmance was “strong,” and that his supervisor, Daniel Perez, and two co-workers recog nized his work as being of “high quality.” Id. at 10. He attached to his First Amended Complaint several documents in support of t hese allegations regarding his performance. In February 2013, a BAE employ ee complained to Davis that she was sexually harassed by her supervisor. Upon learning that BAE had “zero t olerance and mandatory reporting policies for sexual harassment,” Davis repo rted the sexual

1 Because this appeal involves a Ru le 12(b)(6) dismissal, we dra w the facts from the allegations in the opera tive pleading, which is Davis’ s First Amended Complaint; from exhib its submitted with it or incorporated by r eference; and from “documents referred to in the co mplaint if the documents are ce ntral to the plaintiff’s claim and the parties do not di spute the documents’ authenticit y.” Smith v. United States , 561 F.3d 1090, 1098 (1 0th Cir. 2009). BAE attached two docum ents to its Rule 12(b)(6) motion: a discrim ination charge Davis filed with the Equal Employment Opportunity Commissi on and the Colorado Civil Rights Division, and BAE’s position statement in respo nse to that charge. The parti es do not dispute the authenticity of those documents, a nd they are central to Davis’ s claims because (1) Davis drew many of the alleg ations in the Fi rst Amended Com plaint from them, sometimes verbatim and often w ithout identifying the source; an d (2) as we discuss later in this decision, some of those allegations rest on a mis reading of BAE’s explanation for its refusal to re hire him, which is a pivotal i ssue in this case. We therefore consider those documen ts in resolving this appeal.3 harassment to BAE’s depart ment of human resources. Id. (internal quotation marks omitted). After this report, the victim was allegedly “pressur ed to recant her allegations,” but nothing furthe r was done, and she left BAE so on thereafter. Id. When one of BAE’s supervisors, Elizabeth Schley, found out Davi s had reported the harassment, she said she would ma ke Davis’s “life a living hell .” Id. at 11 (internal quotation marks omitted). A year after reporting the hara ssment, in February 2014, “BAE laid . . . Davis off, citing budgetary cuts.” Id. At the time, Davis was allegedly “in a vital leadership role and excelling at his position.” Id. In November 2015, thirty-three months after reporting the sexu al harassment, “Davis was recruited for a posi tion working for BAE as a System and Server Administrator.” Id. He alleged the position “match ed his work experience and skil ls perfectly.” Id. He received an offer letter tha t he signed and returned, expe cting to start work immediately, but soon t hereafter, “the recruiter . . . told him that BAE had rescinded the offer due to a ‘personality conflict.’” Id. Perez, Davis’s former supervisor, then contacted Davis and told him that “BAE’s manag er in charge of hiring,” Robert Hermann, “asked if he should ‘cringe’ upon hear ing Mr. Davis’[s]
name.” Id. After Davis filed a charge of d iscrimination with the Equal Employment Opportunity Commission (EEOC) and the Colorado Civil Rights Div ision, BAE allegedly “changed its justificat ion for not re-hiring him and claimed that it was not because of a personality conflict, but because he allegedly lac ked experience working4 with servers.” Id. at 11–12. Davis claimed this ju stification was “patently fals e” because he had “extensive serverexperience, including performi ng significant amounts of server work for BAE,” and he had listed that experie nce near the top of the resume he submitted to BAE. Id. at 12 (emphasis omitted) . He opined that the “demonstrably false j ustifications for not re-hiring [him],” co mbined with BAE’s “explicit threat to make his lif e a ‘living hell’ for reporting sexual harassment,” demonstrate that the refusal to rehire him was in retaliation f or reporting sexual harassment nearly thr ee years earlier. Id. Based on these allegations, Dav is asserted claims against BAE under the retaliation provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), and the Colorado An ti-Discrimination Act, Colo. R ev. Stat. § 24-34-402(1)(e)(IV). BAE moved to dismiss under Rule 12(b)(6 ), arguing that retaliation could not be inferre d due to the thirty-three-month gap between Davis’s report of sexual harassment and BA E’s refusal to rehire him, an d that Davis’s additional factual allegations wer e insufficient to bridge that gap and establish causation. The district court gr anted the moti on, dismissing t he action with prejudice. Davis filed a motion for reconsid eration under Federal Rule of Civil Procedure 59(e), arguing that the district court erred in dismi ssing the action with prejudice without making a finding that amendment would be futi le and without providing an opportunity for ame ndment (although Davis never so ught leave to amend). In support, Davis point ed to evidence he submitted wit h his response to the5 Rule 12(b)(6) motion suggesting that prior to BAE’s decision no t to rehire Davis, Hermann may have consulted with t he supervisor who was the perp etrator of the alleged sexual harassment Davis had reported. The district cou rt denied the motion. Davis then filed a notice of appeal, designating the order gran ting the Rule 12(b)(6) motion, the final judgment, and th e denial of his Rule 59(e) mo tion. But in his opening appellate brief, he argue s only that the district courterred in granting the Rule 12(b)(6) motion, and in his reply brief, the posits that “ [t]his appeal does not turn on” the district court’s de nial of his Rule 59(e) motion o r its failure to permit amendment, Aplt. Reply Br. at 14 –15. Accordingly, this appeal is confined to the district court’s ruling on th e Rule 12(b)(6) motion. See Thomas v. IBM , 48 F.3d 478, 482 n.2 (10th Cir. 1995) (noting that “failure to argue an issu e in the appellate brief . . . constitutes waiver, e ven when the appellant lists t he issue in the notice of appeal”).
DISCUSSION We review a Rule 12(b )(6) dismissal de novo. Khalik v. United Air Lines , 671 F.3d 1188, 1190 ( 10th Cir. 2012). “To s urvive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to st ate a claim to relief that is plausible on its face.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (internal quotation marks omitted). “A c laim has facial plausibility whe n the plaintiff pleads factual content that allows the court to draw the reasonable in ference that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not6 akin to a probability requirement , but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (internal quotation marks omitted). In our Rule 12(b)(6) analysis, w e “disregard conclusory stateme nts and look only to whether the remaining, f actual allegations plausibly su ggest the defendant is liable.” Khalik , 671 F.3d at 1191. If “the alleg ations . . . are so general t hat they encompass a wide swath of conduc t, much of it innocent, then th e plaintiff[] ha[s] not nudged [his] claims across the line from conceivable to plausib le.” Id. (internal quotation marks omitt ed). Our ultimate duty is to “determine w hether the complaint sufficiently alleges facts suppo rting all the elements necessar y to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren , 478 F.3d 1149, 1160 (10th Cir. 2007). To survive a motion to dismiss, a plaintiff does not have to es tablish a prima facie case of retaliat ion in his or her comp laint, but “the ele ments of each alleged cause of action help to determine whether [the] [p]laintiff has set forth a plausible claim.” Khalik , 671 F.3d at 1192. The elements of a prima facie case of reta liation under Title VII are (1) that the plaintiff “engaged in protecte d opposition to discrimination, (2) that a reas onable employee would have found the challenged action materially adverse, and (3 ) that a causal connection exi sted between the protected activity and the ma terially adverse action.” Id. at 1193 (internal quotation7 marks omitted). 2 Only the third element, a causa l connection, is relevant to t his appeal. A “causal connection may be dem onstrated by evidence of circum stances that justify an inference of retaliato ry motive, such as protected c onduct closely followed by adverse action.” Burrus v. United Tel. Co. of Kan., Inc. , 683 F.2d 339, 343 (10th Cir. 1982). But “[u]nless there is very close temporal p roximity between the protected activity and the retalia tory conduct, the plaintiff m ust offer additional evidence to establish causation.” O’Neal v. Fer guson Constr. Co. , 237 F.3d 1248, 1253 (10th Cir. 2001). The temporal proximity in this case—thi rty-three months—is insufficient to establis h causation by itself. See id. (explaining that “a three-month period, standing alone , is insufficien t to establish causation, ” but a one-and-a-half month gap could be sufficient). That thirty-three month gap do es not foreclose a causal connection. See Piercy v. Maketa , 480 F.3d 1192, 1198–99 (10th Cir. 2007) (“[T]he passage of time does no t necessarily bara plaintiff’s retaliation claim if additional evidence establishes the retaliatory motive. . . . [ T]emporal remoteness is not necessarily dispositive.” (em phasis omitted)). But “our ab ility to draw such a causal inference from an employ er’s adverse action diminishes o ver time because we may reasonably expect (as a matte r of common sense) that the embers of anger or

2 Because the same analysis applie s to retaliation claims under Title VII and the Colorado Anti-Discrimination Act, our disposition of Davis’ s Title VII claim “will necessarily also determine [his] state law claim[].” Khalik , 671 F.3d at 1192 n.3.8 resentment that may have been inf lamed by the employee’s protec ted activity— emotions that would underlie a ny retaliatory adverse action—wou ld cool over time.” Conroy v. Vilsack , 707 F.3d 1163, 1182 (10th Cir. 2013). Davis argues that the distric t court erred in not accepting as true his allegations that after he filed his EEOC ch arge, BAE changed the reason why it decided not to rehire him from personality conf lict to lack of experience work ing with servers, and that both reasons are false. 3 He bases this argument on case law explaining that a plaintiff may establish causati on by alleging either that an em ployer changed its reason for an adverse action afte r an employee filed an EEOC ch arge, thus showing pretext, or that its reason is false. See Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 147 (2000) (“In a ppropriate circumstances, the tr ier of fact can reasonably infer from the falsity of the explanation that the e mployer is dissembling to cover up a discrim inatory purpose.”); Jaramillo v. Colo . Judicial Dep’t , 427 F.3d 1303, 1311 (10th Cir. 2005) (per curiam) (“The timing of the ch ange has been found to support the inference of prete xt when it occurs after signif icant legal proceedings have occurred.”); Wells v. Colo. Dep’t of Transp. , 325 F.3d 1205, 1218 (10th Cir.

3 Davis raises no argument in his opening brief concerning eithe r Schley’s alleged comment that she would ma ke his life a “living hell,” h is layoff in 2014, or Hermann’s alleged query whethe r he should “cringe” at hearing D avis’s name. He has therefore waived any challe nge to the district court’s conc lusion that no reasonable inference of retalia tory motive can b e drawn from th ose alleged comments. See State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994) (explaining th at issue not raised in opening b rief is waived). In his reply brief, Davis confirms our v iew by stating “[w]hether or n ot the ‘living hell’ and ‘cringe’ comments are themselves sufficient to establish causat ion is not at issue.” Aplt. Reply at 14.9 2003) (“If the employee can show that the employer’s proffered reason for taking adverse action is false, the factf inder could infer that the employer was lying to conceal its retalia tory motive.”). While Davis’s understanding of the law is correct, he is mistak en in applying it to his allegations regarding BAE’ s explanation for its refusal to rehire him. Take first his allegation that afterhe filed his EEOC charge, “BAE changed its justification for not re-hiring him and claime d that it was not because of a personality conflict, but because he allegedly lacked expe rience working with servers.” Aplt. App. at 11–12. This allegation rests on a misre ading of BAE’s response to the charge. 4 In that response, BAE presented Robert H ermann’s opinion that Davis “wa s . . . an average performer who did not perform we ll with Hermann’s team.” Aplt. App. at 49. 5 Stating that an empl oyee did not perform well with a team is no t meaningfully different from, or inconsistentwith, stating there was a perso nality conflict. Because BAE’s response contradicts Davis’ s factual allegation that BAE denied that a personality conflict was not why it refused to rehire him, we n eed not take Davis’s allegation as true. See GFF Corp. v. Associated Wholesale Grocers, Inc. , 130 F.3d 1381, 1385 (10th Cir. 1997) (“M ere legal conclusions and factua l allegations that

4 Although the First Amended Comp laint did not expressly mention BAE’s position statement in response to h is EEOC charge, Davis has no t identified any other source of his allegation that B AE changed its explanation afterhe filed the charge.

5 Hermann was “BAE’s manager in charge of hiring” who made the “ cringe” comment to Davis’s former s upervisor. Aplt. App. at 11; see id. at 43 (EEOC charge identifying Hermann the manager who made the “cringe” comment).10 contradict . . . a properly cons idered document are not well-pl eaded facts that the court must accept as true.”). To be sure, BAE’s response to t he EEOC charge a dded a reason fo r the refusal to rehire Davis—lack of server experience. But no reasonable i nference of pretext can be drawn from any of his alleg ations that either of the rea sons is false. Davis alleged he was never disciplin ed or coached regarding a persona lity conflict during his two-and-one-half years at B AE, but that does not plausibly suggest Hermann was being untruthful in an effort t o cover up a retaliatory motive. See Selenke v. Med. Imaging of Colo. , 248 F.3d 1249, 1261 (10th Cir. 2001) ( “When assessing a contention of pretext, we examine the facts as they appear to the person making the [employment] decision . . . .” (in ternal quotation marks omitte d)). Davis also alleged his former supervisor, Perez, sai d Davis was “respectful and op en to the views and ideas of others.” Aplt. App. at 11 (internal quotation marks o mitted). But that opinion is not inconsistent with BAE’s view that there was a pe rsonality conflict or that Davis did not perform wel l with Hermann’s team. Davis fur ther alleged that two other coworkers expressed favor able opinions of his abilities, and he provided those opinions in writing as exhibits t o the First Amended Complaint. But nothing indicates that either of those employees was part of Hermann’s team, and nothing in their opinions is inconsistent w ith a personality conflict or a n inability to work well with Hermann’s team. As for server experience, the sol e allegations in the First Ame nded Complaint were that the position Davis app lied for “matched his work expe rience and skills11 perfectly,” id. , and that he had listed on his resume “extensive server experi ence,” including “significantamounts” for BAE, id. at 12. His resume, which was attached to the First Amended Complaint, contained one sta tement under “ Professional Summary” related to server expe rience: “Previous experience wi th NT 4./ 2003 Server administration to inc lude security patching.” Id. at 24. Davis may have made another reference to the security -patching component of that se rver experience when he stated, in a section describi ng his “Professional Experience ” at BAE: “Field [d]irected security patch ing while overseas.” Id. 6 But he alleged no details about the qualifications necessary for the position. His allegation that his experience and skills matched the position perfectly is therefore conclusory and not entitled to the presumption of truth at th e Rule 12(b)(6) stage. See Khalik , 671 F.3d at 1191 (explaining that at the Rule 12( b)(6) stage, we “disregard conc lusory statements”). Furthermore, we can draw no plau sible inference from his allega tions regarding his server experience that he posse ssed at least some of the object ive qualifications necessary for the position he sought. See Burnett v. Mortg. Elec. Registration Sys.,
Inc. , 706 F.3d 1231, 1236 (10th Cir. 2013) (“Plea dings that do not allow for at least a reasonable inference of the lega lly relevant facts are insuffic ient.” (internal quotation marks omitted)); cf. EEOC v. Horizon/CMS Healthcare Corp. , 220 F.3d 1184, 1193 (10th Cir. 2000) (“The relevant inquiry at the prima facie stag e is not whether an employee or potential employee is able to meet all the objectiv e criteria adopted by

6 The opinions of Perez and the ot her two coworkers do not referto any server experience Davis might have had.12 the employer, but whether the e mployee has introduced some evid ence that she possesses the objective qualifications necessary to perform the job sought .”). More to the point, none of Davis’ s allegations plausibly sugges t BAE was attempting to mask an unlawful retaliatory motive by falsely cl aiming that there was a personality conflict, that he h ad not been a good fit with He rmann’s team, or that his server experience was inade quate for the position he applie d for. After all, Davis continued to work at BAE for a year after he reported the sexua l harassment. It is precisely during that period one would expect Schley to make go od on her alleged promise to make his lif e a “living hell.” See Conroy , 707 F.3d at 1183 (explaining that “the time period shortly fol lowing [the] pro tected activit y [is] the precise period when we ordinarily would expect a ny anger or resentment that [h is] activity engendered in the [employer] to b e at its apex”). Yet the Firs t Amended Complaint is devoid of any alle gations that Schley ( or anyone else at BAE , for that matter) did anything retaliatory to Davis dur ing that year, or of any alleg ation explaining “why one might reasonably expect [BAE’ s] purported retaliatory animu s to have continued to burn hot over” the thirty-th ree month period between Davis’s report of sexual harassment and the decisi on not to rehire him. Id. Furthermore, the causation elemen t of a prima facie case of ret aliation requires a plaintiff to “show that the individuals who took adverse acti on against him knew of his protected opposition.” Zokari v. Gates , 561 F.3d 1076, 1081 (10th Cir. 2009). Although a plaintiff is not requi red to establish a prima facie case in order to survive a Rule 12(b)(6) motion, the eleme nts of a prima facie case assi st in determining13 whether a plaintiff “has set forth a plausible claim.” Khalik , 671 F.3d at 1192. And we have affirmed the Rule 12(b)(6 ) dismissal of an action where the plaintiff “fail[ed] to aver any facts indi cating [the defendant’s] knowle dge of his [protected activity].” Ostler v. Anderson , 200 F. App’x 750, 752 (10th Cir. 2006). 7 Here, Davis did not allege any fact s plausibly suggesti ng Hermann knew that Davis had reported sexual harassment. 8 This shortcoming lends furthersupport for our conclusion tha t the First Amended Complaint doe s not “sufficiently allege[] fac ts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed,” Forest Guardians , 478 F.3d at 1160, and ther efore Davis has not “nudged [his] claims across the line fro m conceivable to plausible,” Khalik , 671 F.3d at 1191 (internal quotation ma rks omitted). Accordingly, we affirm the district court’s judgment.

Entered for the Court

Carolyn B. McHugh Circuit Judge

7 We cite this unpublished, nonpr ecedential case fo r its persuas ive value consistent with 10th Cir. R. 32.1(A).

8 As discussed in footnote 3, supra , Davis has waived any challenge regarding the only alleged fact potentia lly bearing on that knowledge—Hermann’s question to Davis’s former supervisor wheth er he, Hermann, should “cringe” upon hearing Davis’s name. But even if Davis had not waived that challenge, we would conclude that this isolated comment lack s sufficient context to support a reasonable inference that Hermann had the requisite knowledge.