FILED 

United States Court of Appeals 

Tenth Circuit 

UNITED ST ATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

May 25, 2005 

PATRICK FISHER 

Clerk 

MICHAELS. CANDELARIA, 

Plaintiff-Appellant, 

V. 

JOHN POTTER, Postmaster General, 

Defendant-Appellee. 

No. 04-2173 

(D.C. No. Civ-03-166-JC/RHS) 

(D. N.M.) 

ORDER AND JUDGMENT* 

Before BRISCOE, ANDERSON, and BRORBY, Circuit Judges. 

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

unanimously to grant the parties' request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34. l(G). The case is therefore 

ordered submitted without oral argument. 

Michael S. Candelaria appeals the district court's grant of summary 

judgment in favor of defendant on his claim for retaliation in violation of 

* This order and judgment is not binding precedent, except under the 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

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Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e-2000el 7. The district court 

concluded that Candelaria failed to establish a prim a facie case of retaliation. 

Can de !aria's complaint also contained a disparate treatment/hostile work 

environment claim for national origin discrimination, but Candelaria abandoned 

that claim in the district court. See Aplt. App. at 15, 42. We review the district 

court's grant of summary judgment de novo, applying the same standard as the 

district court, Simms v. Okla. ex. rel. Dep 't of Mental Health & Substance Abuse 

Servs., 165F.3d 1321, 1326(10thCir.1999),andweaffirm. 

Candelaria is an employee of the United Postal Service (USPS). From 1993 

until 2001, he worked in the Stamp Distribution Office of the main USPS plant in 

Albuquerque, NM under the supervision of Carolyn Gustafson. On December 12, 

2000, Candelaria initiated grievance procedures alleging that Gustafson created a 

hostile work environment for him. On March 5, 200 I, Candelaria received a 

14-day suspension letter for failure to provide his supervisor, Gustafson, with 

medical documentation for a December 13, 2000 absence from work. Candelaria 

never served the 14-day suspension and the suspension letter was subsequently 

removed from his personnel file. 

To establish a prima facie case of retaliation, Candelaria must show that (1) 

he engaged in protected activity; (2) he suffered an adverse employment action; 

and (3) there was a causal connection between the protected activity and the 

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adverse employment action. See, e.g., Duncan v. Manager, Dep 't of Safety, 

397 F .3d 1300, 13 14 (10th Cir. 2005). Candelaria cannot meet the second prong 

of this test. ·'An adverse employment action must be materially adverse to the 

employee's job status .... The adverse action must amount to a significant 

change in employment status, such as firing, failing to promote, reassignment 

with significantly different responsibilities, or a decision causing a significant 

change in benefits." Id. (internal quotations omitted). Candelaria argues that the 

14-day suspension letter constituted an adverse employment action. Candelaria, 

however, did not end up serving the suspension and the letter was removed from 

his personnel file. As a result, Candelaria cannot demonstrate that the letter was 

materially adverse to his job status. 

Candelaria argues, for the first time on appeal, that the suspension letter 

was an adverse employment action because it caused him harm. He states that 

after receiving the letter he "passed out ... went to the hospital, suffered a 

concussion, and later received psychiatric treatment." Aplt. Br. at 19. Generally, 

we do not consider arguments raised for the first time on appeal. Walker v. 

A1ather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992). Even ifwe were to 

consider the merits of this argument, while Candelaria may have had an adverse 

reaction to the letter, there is no evidence of an adverse employment action 

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amounting to "a significant change in [his] employment status." Duncan, 

397 F.3d at 1314. 

Candelaria also argues that he adequately alleged a claim for a retaliatory 

hostile work environment and that this constituted an adverse employment action. 

He asserted in his complaint that the severity of the existing hostile work 

environment increased after he participated in protected activity, but then he 

abandoned his hostile work environment claim in the district court, stating that it 

was unsupported by the evidence of record. See Aplt. App. at 15, 42. If there 

was no existing hostile work environment, then Candelaria cannot claim that any 

such environment subsequently worsened after he engaged in protected activity. 

Because Candelaria cannot demonstrate that he suffered any adverse 

employment action, he cannot establish a prim a facie case of retaliation. The 

district courf s decision to grant summary judgment in favor of defendant was 

proper. Accordingly, the judgment of the district court is AFFIRMED. 

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Entered for the Court 

Mary Beck Briscoe 

Circuit Judge 

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