UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

BRYAN MCELROY, 

 Plaintiff - Appellant, 

v. 

AMERICAN FAMILY INSURANCE, 

a/k/a American Family Insurance Group, 

 Defendant - Appellee. 

No. 14-4134 

(D.C. No. 2:12-CV-01132-TS) 

(D. Utah) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before BRISCOE, HOLMES, and MORITZ, Circuit Judges. 

_________________________________ 

Bryan McElroy appeals the district court’s decision granting American Family 

Insurance’s motion for summary judgment on his hostile work environment and 

retaliation claims. Because we conclude that no genuine issues of material fact 

remain as to either of McElroy’s claims and that American Family is entitled to 

judgment as a matter of law, we affirm the district court’s ruling. 

BACKGROUND

Bryan McElroy admits that after working for American Family Insurance 

(AFI) for more than a decade, he “was having a ‘bad year’ in 2011.” Aplt. Br. at 27. 

 

*

 This order and judgment is not binding precedent, except under the doctrines 

of law of the case, res judicata, and collateral estoppel. It may be cited, however, for 

its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

October 30, 2015

Elisabeth A. Shumaker 

Clerk of Court

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Although McElroy attributes many of his 2011 performance issues to the actions of 

his supervisor, Tony Grilz, he doesn’t dispute that he repeatedly failed to meet the 

goals Grilz set for him that year. Nor does he dispute that Grilz disciplined him in 

May 2011 for engaging in behavior Grilz viewed as insubordinate. Nevertheless, 

McElroy denies these issues led Grilz to terminate his employment on October 28, 

2011. Instead, McElroy insists the events that precipitated his termination began 

much earlier when, in 2008, Grilz told McElroy that Grilz wanted someone younger 

and more moldable to serve as District Sales Manager. 

That same year, McElroy alleges, Grilz began a pattern of inappropriate 

behavior: Grilz complimented McElroy’s appearance, clothing, and cologne; touched 

McElroy’s back and buttocks, ostensibly to illustrate the location of Grilz’s back 

pain; instructed McElroy to participate in two body-fat contests during which he 

required McElroy to wear a speedo, complimented McElroy’s appearance, and tried 

to touch his buttocks; repeatedly asked McElroy to join him for drinks during a 

company event; and required McElroy—who is Catholic—to work a Sunday event 

because AFI’s Mormon employees could not. 

On April 22, 2011, McElroy made an anonymous phone call to AFI’s internal 

ethics hotline, alleging Grilz was discriminating against him on the basis of religion 

and age. Six months and several performance-related discussions later, Grilz 

terminated McElroy’s employment, allegedly in retaliation for McElroy’s phone call 

to the ethics hotline and an additional complaint to “a company Human Resources 

manager.” Compl., Doc. 2, ¶ 106. 

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In response to his termination, McElroy filed a charge with the Equal 

Employment Opportunity Commission and later filed suit in federal district court 

under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in 

Employment Act (ADEA) of 1967. Among other claims, McElroy alleged (1) a 

hostile work environment based on sexual harassment and (2) retaliation.1

 Following 

discovery, AFI moved for summary judgment on all of McElroy’s claims. 

In rejecting McElroy’s hostile work environment claim, the district court 

acknowledged that “some of Grilz’s conduct could make many people 

uncomfortable.” Order, Doc. 26, at 22. Nevertheless, it concluded the conduct didn’t 

“rise to the level of being so objectively offensive that it created a hostile or abusive 

work environment.” Id. In rejecting McElroy’s retaliation claim, the district court 

relied in part on the six-month period that elapsed between McElroy’s anonymous 

call to the ethics hotline and his termination. The court concluded that absent any 

other evidence of causation, McElroy failed to demonstrate a causal connection 

between the two events. 

The district court granted summary judgment in favor of AFI. McElroy 

appeals. 

 

1

 The district court granted AFI’s motion for summary judgment on all seven 

causes of action asserted in McElroy’s complaint. Because McElroy appeals only 

from the district court’s grant of summary judgment on his hostile work environment 

and retaliation claims, we confine our discussion to these issues. 

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DISCUSSION

We review the district court’s grant of summary judgment de novo. Adamson 

v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008). We 

view the facts and evidence in the light most favorable to McElroy. See Tolan v. 

Cotton, 134 S. Ct. 1861, 1866 (2014). Summary judgment is appropriate “if the 

movant shows that there is no genuine dispute as to any material fact and the movant 

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

I. The district court properly granted summary judgment on McElroy’s 

hostile work environment claim. 

To succeed on a hostile work environment claim, a plaintiff must show “the 

workplace is permeated with discriminatory intimidation, ridicule, and insult, that is 

sufficiently severe or pervasive to alter the conditions of the victim’s employment 

and create an abusive working environment.” Morris v. City of Colorado Springs, 

666 F.3d 654, 664 (10th Cir. 2012) (quoting Hall v. U.S. Dep’t of Labor, 476 F.3d 

847, 851 (10th Cir. 2007)). 

McElroy challenges the district court’s decision granting summary judgment 

on his hostile work environment claim on two fronts. First, he suggests that only 

juries—not district courts—are properly equipped to determine what is objectively 

offensive in this context. 

We find this argument puzzling in light of McElroy’s apparent concession that 

“in deciding motions for summary judgment relating to claims alleging hostile work 

environment[s], the trial court has to be the entity . . . to draw the line between 

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occasionally rude or sporadically mean supervisory actions and actions severe or 

pervasive enough that they cross over the line and create actionable harassment.” 

Aplt. Br. at 15. 

Nevertheless, it’s true we have generally recognized that “[t]he severity and 

pervasiveness evaluation [of a hostile work environment claim] is particularly 

unsuited for summary judgment because it is quintessentially a question of fact.” 

Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 958 (10th Cir. 2012) (second 

alteration in original) (quoting O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 

1098 (10th Cir. 1999)). But we also often have affirmed the resolution of this issue at 

the summary judgment stage. See, e.g., Morris, 666 F.3d at 658, 666, 669 (affirming 

district court’s conclusion that conduct was insufficiently severe or pervasive to alter 

terms of plaintiffs’ employment); Chavez v. New Mexico, 397 F.3d 826, 832 (10th 

Cir. 2005) (same). 

In support of his argument that the severity-and-pervasiveness analysis is an 

inappropriate basis for granting summary judgment, McElroy relies solely on 

Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117 (10th Cir. 2003). There, we 

explained that “ascertaining whether [an] impairment substantially limits [a] major 

life activity” for purposes of a claim under the Americans with Disabilities Act “is a 

factual question for the jury.” Id. at 1129. 

Yet despite acknowledging this question is best left to juries, we reiterated that 

“in proper circumstances,” courts can nevertheless “decide this step on a motion for 

summary judgment.” Id. at 1130 n.5. We then proceeded to affirm the district court, 

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which had done just that. Id. at 1121, 1130-31. Thus, if anything, Doebele stands for 

the proposition that district courts may grant summary judgment on the basis of 

factual questions when, “as a matter of law,” a plaintiff’s evidence is insufficient to 

create a question of fact. Id. at 1130. Because the only authority McElroy cites to 

support his argument directly contradicts the proposition for which he cites it, his 

argument fails. 

Next, McElroy insists that the district court’s finding that “some of Grilz’s 

conduct could make many people uncomfortable,” Order, Doc. 26, at 22, leads to the 

inescapable conclusion that a jury could necessarily find Grilz’s behavior sufficiently 

offensive to support a hostile work environment claim. But McElroy cites no 

authority suggesting that behavior capable of causing mere discomfort is necessarily 

capable of “alter[ing] the conditions of [a] victim’s employment and creat[ing] an 

abusive working environment.” Morris, 666 F.3d at 664 (quoting Hall, 476 F.3d at 

851). On the contrary, we’ve warned that “even incidents that would objectively give 

rise to bruised or wounded feelings will not on that account satisfy the severe or 

pervasive standard.” Id. (quoting EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 

(4th Cir. 2008)). The district court’s acknowledgment that Grilz’s conduct could 

make many people uncomfortable doesn’t compel the conclusion that a jury could 

find that conduct severe enough to support McElroy’s allegations of a hostile work 

environment. Accordingly, we affirm the district court’s grant of summary judgment 

on McElroy’s hostile work environment claim. 

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II. The district court properly granted summary judgment on McElroy’s 

retaliation claim. 

To make a prima facie case for retaliation under either Title VII or the ADEA, 

McElroy must establish (1) he engaged in protected opposition to discrimination; (2) 

he suffered an adverse employment action; and (3) there was a causal connection 

between the protected activity and the adverse employment action. Daniels v. United 

Parcel Serv., Inc., 701 F.3d 620, 638 (10th Cir. 2012). In granting summary 

judgment on McElroy’s retaliation claim, the district court relied on McElroy’s 

failure to offer sufficient evidence of a causal connection. 

On appeal, McElroy concedes the six-month gap between his anonymous 

phone call to the ethics hotline (the protected conduct) and his termination (the 

adverse employment action) was too long to support an inference of causation. But he 

insists much less time elapsed between other protected conduct—his complaints to 

AFI employees John Thedinga2

 and Christy Ledgerwood—and other adverse 

employment action: what he describes as “Grilz’[s] effort to build a case against 

[him].” Aplt. Br. at 21. 

To succeed on this argument, McElroy must first establish his complaints to 

Thedinga and Ledgerwood constituted protected conduct. For our purposes, 

opposition to an employer’s conduct is only “protected” if it opposes a practice made 

unlawful by Title VII or the ADEA. Hinds v. Sprint/United Mgmt. Co., 523 F.3d 

 

2

 Although McElroy’s brief refers to “John Thedinger,” Aplt. Br. at 21, 

McElroy’s appendix refers to “John Thedinga,” see, e.g., Aplt. App. at 26-43. We 

adopt that spelling here. 

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1187, 1203 (10th Cir. 2008); Petersen v. Utah Dep’t of Corr., 301 F.3d 1182, 1188 

(10th Cir. 2002). But McElroy’s brief doesn’t tell us what he said to Ledgerwood or 

when he said it. Without such information, we can’t determine whether the complaint 

was protected, much less its proximity to any adverse employment action. Thus, 

McElroy hasn’t established the district court erred in failing to consider the 

complaint he made to Ledgerwood in evaluating causation. 

 McElroy’s argument regarding his conversation with Thedinga fails for similar 

reasons. While McElroy asserts he told Thedinga that Grilz’s behavior towards him 

was “discriminatory,” Aplt. Br. at 19, he admits he never mentioned gender, religion, 

or age during that conversation. Absent some indication McElroy told Thedinga that 

Grilz discriminated against him on the basis of a characteristic listed in Title VII or 

the ADEA, McElroy fails to establish his comment to Thedinga was protected. See 

Hinds, 523 F.3d at 1203 (“Although no magic words are required, to qualify as 

protected opposition the employee must convey to the employer his or her concern 

that the employer has engaged in a practice made unlawful by the ADEA.”); 

Petersen, 301 F.3d at 1188 (“Opposition to an employer’s conduct is protected by 

§ 2000e-3(a) only if it is opposition to a ‘practice made an unlawful employment 

practice by [Title VII].’”). In any event, McElroy’s brief also fails to indicate when

he made the allegedly protected comment to Thedinga. Thus, even if we agreed the 

comment was protected, we’d be unable to determine its proximity to any adverse 

employment action or make any inference of causation. 

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So we’re left with only one possible instance of protected opposition: 

McElroy’s anonymous phone call to AFI’s ethics hotline. Notably, McElroy 

acknowledges that his placement of an anonymous call generates an issue as to 

causation. See Aplt. Br. at 19 n.4 (recognizing that anonymity of call “goes not to the 

issue of whether [McElroy] engaged in protected activity, but whether he can 

establish a causal connection”). As McElroy further acknowledges, if Grilz didn’t 

know McElroy called the ethics hotline, Grilz couldn’t have terminated McElroy’s 

employment3 because McElroy called the ethics hotline. See Peterson, 301 F.3d at 

1188 (noting 42 U.S.C. § 2000e-3(a) only prohibits an employer from retaliating 

“because” an employee engaged in protected conduct, and reasoning, “An employer’s 

action against an employee cannot be because of that employee’s protected 

opposition unless the employer knows the employee has engaged in protected 

opposition” (quoting § 2000e-3(a)) (second emphasis added)); see also 29 U.S.C. 

§ 623(d) (prohibiting employers from discriminating “because” an individual “has 

opposed any practice made unlawful by” ADEA). 

McElroy’s concession that his phone call “remained anonymous,” Aplt. Br. at 

19 n.4, is fatal to his retaliation claim. See Peterson, 301 F.3d at 1189 (explaining 

plaintiff’s failure to provide evidence establishing employer retaliated against her 

because of plaintiff’s protected conduct “would in itself require judgment against 

her”). Thus, we need not address McElroy’s other arguments challenging the district 

 

3

 Because McElroy fails to establish Grilz knew of McElroy’s protected 

conduct, we need not address McElroy’s argument that he provided evidence of an 

earlier adverse employment action. 

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court’s decision to grant summary judgment on his retaliation claim. Even assuming 

the district court somehow erred, McElroy’s failure to establish Grilz was aware of 

McElroy’s phone call to the ethics hotline would require us to affirm. 

CONCLUSION

We affirm the district court’s grant of summary judgment in favor of AFI. 

Entered for the Court 

Nancy L. Moritz 

Circuit Judge 

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