FILED

United States Court of Appeals

Tenth Circuit

August 26, 2015

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

JACQUELINE VILLAMAR,

Plaintiff - Appellant,

v.

LINCARE, INC.,

Defendant - Appellee.

No. 14-3198

(D.C. No. 2:13-CV-02220-JAR)

(D. Kansas)

_________________________________

ORDER AND JUDGMENT*

_________________________________

Before MATHESON, BACHARACH, and MORITZ, Circuit Judges.

_________________________________

The plaintiff, Ms. Jacqueline Villamar, is a Hispanic woman who was

assigned to work for Lincare, Inc.1

 While assigned to Lincare, Ms. Villamar met

Ms. Stacey Herschell, a Lincare employee. The two started a friendship, but the

* The parties have not requested oral argument, and the Court concludes that 

oral argument would not materially aid our consideration of the appeal. See Fed. R.

App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have decided the appeal based on

the briefs.

Our order and judgment does not constitute binding precedent except under the

doctrines of law of the case, res judicata, and collateral estoppel. Fed. R. App. P.

32.1(a); 10th Cir. R. 32.1(A).

1 Ms. Villamar was employed by Kelly Services, Inc., which assigns its

employees to work temporarily for other businesses. Ms. Villamar’s assignment

involved work at Lincare.

Appellate Case: 14-3198 Document: 01019481271 Date Filed: 08/26/2015 Page: 1 
relationship soon soured and Ms. Herschell allegedly made racially hostile

comments and acted abusively toward Ms. Villamar. The alleged comments and

abuse led Ms. Villamar to sue Lincare under 42 U.S.C. § 1981, claiming a hostile

work environment and retaliation for a protected activity. The district court

granted summary judgment to Lincare, and we affirm. In affirming, we conclude

that no reasonable fact-finder could infer that

! Ms. Herschell’s comments and conduct created a racially hostile

work environment for Ms. Villamar or

! the firing was in retaliation for Ms. Villamar’s complaint to a

supervisor.

I. Standard of Review

In reviewing the award of summary judgment, we engage in de novo

review. Rock v. Levinski, 791 F.3d 1215, 1219 (10th Cir. 2015). Applying this

standard, we must uphold the award of summary judgment if Lincare showed the

absence of a genuine dispute about a material fact and entitlement to judgment as

a matter of law. Fed. R. Civ. P. 56(a).

II. Hostile Work Environment

In claiming a hostile work environment, Ms. Villamar relies solely on

evidence involving Ms. Herschell’s comments and conduct. We evaluate this

evidence in the light most favorable to Ms. Villamar. Talavera ex rel. Gonzalez

v. Wiley, 725 F.3d 1262, 1267 (10th Cir. 2013).

-2-

Appellate Case: 14-3198 Document: 01019481271 Date Filed: 08/26/2015 Page: 2 
According to Ms. Villamar, some of Ms. Herschell’s comments had racial

overtones; others were racially neutral. In viewing these comments favorably to

Ms. Villamar, we must determine whether her race played a role in the alleged 

comments. See Tademy v. Union Pac. Corp., 614 F.3d 1132, 1152 (10th Cir.

2008). To make this determination, we can consider not only the racial

comments, but also the racially neutral comments if they had been tainted by

racial hostility. See Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 960

(10th Cir. 2012).

We consider these comments against the backdrop of Ms. Villamar’s

burden on her claim of a hostile work environment. This burden required Ms.

Villamar to show that the harassment

! was pervasive or severe enough to alter the terms, conditions, or

privilege of employment and

! was racially charged or based on a racial animus.

Bolden v. PRC, Inc., 43 F.3d 545, 551 (10th Cir. 1994). Proof of isolated

incidents are not enough; “there must be a steady barrage of opprobrious racial

comments.” Id.

Ms. Villamar overheard three comments that could be interpreted as

referring to Ms. Villamar’s race:

1. Ms. Herschell muttered under her breath: “Brown bitch.”

2. She said that certain people should stick to gardening and

housework.

-3-

Appellate Case: 14-3198 Document: 01019481271 Date Filed: 08/26/2015 Page: 3 
3. Ms. Herschell said to another employee, on the other side of a

cubicle wall: “Well, I’m going to call you Mexico because you just

love going to Mexico City.”

Appellant’s Appendix at 88-89.

In addition to these remarks, Ms. Herschell treated Ms. Villamar badly in

ways that were not overtly racial. For example, Ms. Herschell allegedly stared at

Ms. Villamar, shoved past her, turned the printer off, threw Ms. Villamar’s

copying into a shred bin, and muttered derogatory words like “stupid bitch,”

“dumb bitch,” “moron,” and “idiot.”

On appeal, we must determine whether a reasonable fact-finder could

regard these actions and comments (when viewed as a whole) as so severe or

pervasive that they created an abusive environment based on Ms. Villamar’s

race. See p. 3, above. A fact-finder could view the alleged comments and conduct

as boorish and crude. But the comments and conduct would have crossed the

constitutional line only if they had been based on race. See p. 3, above.

Ms. Villamar acknowledges that none of the racially oriented comments

were made to her, for all were overheard. One of the three comments did not

ostensibly have anything to do with Ms. Villamar’s race: that certain people

should stick to gardening and housework. And Ms. Herschell’s comment

regarding Mexico City was made to another employee. Even viewing the three

comments holistically, they cannot be considered as so severe or pervasive to

create a work environment tainted by racial hostility. See Bolden v. PRC, Inc., 43

-4-

Appellate Case: 14-3198 Document: 01019481271 Date Filed: 08/26/2015 Page: 4 
F.3d 545, 551 (10th Cir. 1994) (holding that two overtly racial remarks and one

arguably racial comment, over an eight-year period, were not sufficiently

pervasive to survive summary judgment on a hostile-work-environment claim);

see also Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 642-43 (9th Cir. 2004)

(upholding summary judgment for the defendant on a hostile-work-environment

claim, concluding that two statements—that the plaintiff had “a typical Hispanic

macho attitude” and “Hispanics do good in the field”—were not severe or

pervasive).

Ms. Villamar relies not only on Ms. Herschell’s racial comments, but also

on her racially neutral conduct. But Ms. Villamar acknowledges that Ms.

Herschell acted with hostility for reasons unrelated to race. After beginning as

friends, Ms. Herschell allegedly tried to kiss Ms. Villamar’s boyfriend and

expressed a desire to date him. Then, Ms. Villamar did not invite Ms. Herschell

to a birthday party. According to Ms. Villamar, that snub prompted an onslaught

of hostility from Ms. Herschell. In these circumstances, a reasonable fact-finder

might regard Ms. Villamar’s version of events as a hostile workplace, but not one

where the hostility became severe or pervasive because of race. Thus, we

conclude that the district court properly granted summary judgment to Lincare on

the claim involving a hostile work environment. See Tademe v. Saint Cloud State

Univ., 328 F.3d 982, 991 (8th Cir. 2003) (holding that the defendant was entitled

to summary judgment on a hostile-work-environment claim because the evidence

-5-

Appellate Case: 14-3198 Document: 01019481271 Date Filed: 08/26/2015 Page: 5 
showed that the harassment stemmed from departmental politics and personality

conflicts, not race).

II. Retaliation

Ms. Villamar also sues under a retaliation theory, claiming that she lost

her work assignment because she had complained when Ms. Herschell remarked

about someone’s frequent trips to Mexico City. On this claim, the district court

granted summary judgment to Lincare. We agree with this ruling.

For a prima facie claim of retaliation, Ms. Villamar must show a causal

connection between her protected activity and loss of the work assignment. See

Davis v. Unified Sch. Dist., 750 F.3d 1168, 1170 (10th Cir. 2014). To assess Ms.

Villamar’s proof of this element, we must consider her version of events. See

p. 2, above.

The alleged retaliation grew out of clashes between Ms. Villamar and Ms.

Herschell. When the clashes intensified, both individuals met with two

supervisors, Ms. Carol Wiley and Ms. Lea Ann Cooper. Ms. Cooper cautioned

that if the conflict continued, Ms. Villamar would likely be terminated because

she was on a temporary assignment and Ms. Herschell was a full-time employee. 

But the problems between Ms. Villamar and Ms. Herschell continued,

culminating when Ms. Herschell remarked to a coworker about her frequent trips

to Mexico City. This remark spurred Ms. Villamar to consult Ms. Wiley, a

supervisor who worked under Ms. Cooper’s direction.

-6-

Appellate Case: 14-3198 Document: 01019481271 Date Filed: 08/26/2015 Page: 6 
Ms. Villamar faced a dilemma: she wanted to file a complaint under the

company’s anti-harassment policy, but Ms. Cooper had already said that she

would likely terminate Ms. Villamar’s assignment if the problems continued.

After Ms. Cooper made this statement, Ms. Wiley declined to tell Ms. Cooper

about Ms. Villamar’s new complaint.

But Ms. Cooper heard about the problems from another source, Ms.

Herschell, who had independently complained about Ms. Villamar to the human

relations department. That complaint was forwarded to Ms. Cooper, who asked

her supervisor (Mr. Phil Phenis) for guidance. He responded that Ms. Cooper

should terminate Ms. Villamar.

This sequence of events (based on Ms. Villamar’s account and other

undisputed evidence) forecloses a finding for Ms. Villamar on the causation

requirement. Mr. Phenis terminated Ms. Villamar’s work assignment without any

knowledge of her new complaint to Ms. Wiley. Mr. Phenis simply knew that (1)

two workers were not getting along and (2) Ms. Villamar was on a temporary

assignment and the coworker was a full-time employee.

To overcome Mr. Phenis’s lack of knowledge about the recent complaint,

Ms. Villamar relies on

! temporal proximity between her complaint to Ms. Wiley and loss of

the work assignment and

! Ms. Wiley’s supply of false information to Ms. Cooper.

-7-

Appellate Case: 14-3198 Document: 01019481271 Date Filed: 08/26/2015 Page: 7 
These arguments are unconvincing.

Ordinarily, temporal proximity might support the causation element. See

McGowan v. City of Eufala, 472 F.3d 736, 744 (10th Cir. 2006). But here the

decision-maker (Phil Phenis) had no knowledge about Ms. Villamar’s new

complaint. If Mr. Phenis did not know about Ms. Villamar’s complaint, temporal

proximity could not logically support satisfaction of the causation element. See

Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000)

(“[T]emporal proximity alone is insufficient to create a genuine issue of fact as

to causal connection where there is unrebutted evidence that the decision maker

did not have knowledge that the employee engaged in protected conduct.”).

Ms. Villamar also relies on Ms. Wiley’s supply of false information to Ms.

Cooper. Again, false information can sometimes support a retaliation motive. See

Miller v. Eby Realty Grp. LLC, 396 F.3d 1105, 1113-14 (10th Cir. 2005). But

this inference is illogical here.

Though Ms. Wiley was not a decision-maker, she did consult with Ms.

Cooper. In turn, Ms. Cooper consulted with Mr. Phenis before he decided to

terminate Ms. Villamar’s work assignment. This sequence of consultations might

have supported the causation element if Ms. Wiley had a retaliatory animus and

intended her response to Ms. Cooper to result in Ms. Villamar’s termination. See

Staub v. Proctor Hospital, 562 U.S. 411, 422 (2011) (holding that the causation

element may be satisfied “if a supervisor performs an act motivated by

-8-

Appellate Case: 14-3198 Document: 01019481271 Date Filed: 08/26/2015 Page: 8 
[actionable] animus that is intended by the supervisor to cause an adverse

employment action . . . if that act is a proximate cause of the ultimate

employment action” (emphasis in original)).

But Ms. Villamar’s account could not satisfy this test because there is no

evidence that Ms. Wiley had a retaliatory animus. Ms. Wiley knew that her

supervisor, Ms. Cooper, had already said she would likely terminate Ms.

Villamar if her problems with Ms. Herschell continued. Thus, if Ms. Wiley told

Ms. Cooper about the continued problems, Ms. Villamar would likely be

terminated. In these circumstances, Ms. Villamar’s evidence does not support a

reasonable inference of causation.

III. Conclusion

Viewing the evidence most favorably to Ms. Villamar, we conclude that

the district court properly granted summary judgment to Lincare on the § 1981

claims involving a hostile work environment and retaliation. Accordingly, we

affirm.

Entered for the Court

Robert E. Bacharach

Circuit Judge

-9-

Appellate Case: 14-3198 Document: 01019481271 Date Filed: 08/26/2015 Page: 9