UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

GEORGE W. BROWN, 

 Plaintiff-Appellant, 

v. 

LOWE’S HOME CENTERS, 

 Defendant-Appellee. 

No. 14-4133 

(D.C. No. 2:13-CV-00072-DAK) 

(D. Utah) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HOLMES, MATHESON, and BACHARACH, Circuit Judges. 

_________________________________ 

 Mr. George Brown is an African-American who worked for Lowe’s 

Home Centers. One day, Mr. Brown and a Lowe’s cashier yelled at each 

other, prompting Lowe’s management to investigate the two employees’ 

conduct. During the investigation, Mr. Brown reported that he had heard 

two fellow employees use the term “nigger,” prompting Mr. Brown to 

complain to a supervisor. Lowe’s placed both Mr. Brown and the cashier 

 

* Oral argument would not significantly aid in the decision. Thus, the 

Court will decide the appeal based on the briefs. See Fed. R. App. P. 

34(a)(2). 

 

 This order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

10th Cir. R. 32.1(A). But the order and judgment can be cited for its 

persuasive value. 

FILED 

United States Court of Appeals

Tenth Circuit 

October 8, 2015

Elisabeth A. Shumaker 

Clerk of Court

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on probation (which Lowe’s calls a “final notice”). Unhappy with this 

status, Mr. Brown complained of race discrimination to a Lowe’s 

supervisor. 

 About two months later, Mr. Brown came to work impaired. Mr. 

Brown attributed the impairment to back pain; Lowe’s attributed it to 

intoxication and fired him. Mr. Brown filed an administrative charge, 

alleging race discrimination and retaliation. The administrative charge was 

dismissed on multiple grounds, including timeliness. 

 The dismissal led Mr. Brown to sue under Title VII of the Civil 

Rights Act,1

 claiming disparate treatment, retaliation, and presence of a 

hostile work environment. The district court granted summary judgment to 

Lowe’s. On appeal, we address three issues: 

 1. Summary Judgment on the Claim of Disparate Treatment. Mr. 

Brown claims disparate treatment when Lowe’s put him on 

“final notice” and terminated him roughly two months later. 

The claim involving placement on final notice is unsupported 

in the record because Mr. Brown failed to present the district 

court with any instances of more favorable treatment of white 

employees. On the claim involving termination, Mr. Brown 

failed to timely exhaust administrative remedies. Thus, on the 

disparate-treatment claim, we conclude that the district court 

properly granted summary judgment to Lowe’s. 

 

1

 In his opening brief, Mr. Brown adds that he believes Lowe’s 

violated the Utah Antidiscrimination Act of 1995. Appellant’s Opening Br. 

at 7 (ECF pagination). But Mr. Brown did not allege violation of this law 

in the complaint or in his response to Lowe’s summary judgment motion. 

See R., Vol. I at 21-44; id., Vol. V at 6-63. Thus, he cannot prevail based 

on an appeal point involving the Utah Antidiscrimination Act of 1995. See 

Braswell v. Cincinnati Inc., 731 F.3d 1081, 1092 (10th Cir. 2013). 

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2. Summary Judgment on the Retaliation Claim. Mr. Brown also 

alleges retaliation, claiming he was put on final notice and 

terminated after complaining about a coworker’s use of the 

term “nigger.” This claim is unsupported with regard to 

placement on final notice, for the undisputed evidence shows 

that Lowe’s had already been investigating Mr. Brown’s 

conduct before his complaint of race discrimination. On the 

claim involving termination, Mr. Brown failed to timely 

exhaust administrative remedies. Thus, we conclude that the 

district court properly granted summary judgment to Lowe’s on 

the retaliation claim. 

 3. Summary Judgment on the Claim of a Hostile Work 

 Environment. Mr. Brown also alleges a hostile work 

 environment based on a racial slur, the firing of 

nonwhite employees, and antagonistic conduct by coworkers. 

These allegations are not enough to create a hostile work 

environment. Thus, we conclude that the district court properly 

granted summary judgment to Lowe’s on this claim. 

Based on these conclusions, we affirm. 

I. Standard of Review 

 On each issue, we engage in de novo review, considering the 

evidence in the light most favorable to Mr. Brown. EEOC v. C.R. England, 

Inc., 644 F.3d 1028, 1037 (10th Cir. 2011). On summary judgment, the 

issue is whether Lowe’s has shown (1) the absence of a genuine issue of 

material fact and (2) entitlement to judgment as a matter of law. Id. 

II. Claims Involving Disparate Treatment and Retaliation 

 Mr. Brown complains of disparate treatment and retaliation when 

Lowe’s put him on final notice and terminated his employment. On both 

theories, the district court properly granted summary judgment to Lowe’s. 

 

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 A. Placement on Final Notice 

 For the disparate-treatment and retaliation claims involving 

placement on final notice, Mr. Brown failed to present evidence creating 

triable issues of fact. 

 1. Disparate Treatment 

 On the disparate-treatment claim, Mr. Brown alleges that he was 

treated more harshly than white employees. The alleged disparity would be 

actionable only if the white employees were similarly situated. See Jones 

v. Denver Post Corp., 203 F.3d 748, 753 (10th Cir. 2000). 

 Mr. Brown was disciplined for verbal abuse after engaging in a 

yelling match with a cashier. Under Lowe’s policy, verbal abuse 

constitutes a “Class A” violation, which ordinarily results in termination. 

R., Vol. II at 156. Rather than terminate Mr. Brown, Lowe’s put him on 

“final notice,” which would ordinarily lead to termination if the employee 

committed another policy violation within one year. Id.

2 Lowe’s cited Mr. 

Brown for another policy violation about two months later and terminated 

him. 

Mr. Brown complains that Lowe’s treated white employees more 

leniently even though they allegedly 

 

2

 Mr. Brown argues that the warning was premature because it 

involved a “final notice” prior to any other disciplinary sanctions. But the 

“final notice” was imposed for a violation classified by Lowe’s as “Class 

A.” Under Lowe’s written policy, “‘Class A’ violations normally result in 

immediate termination.” Id.

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 verbally abused a store manager, 

 acted insubordinately toward Mr. Brown, 

 verbally abused and intimidated Mr. Brown, 

 accused Mr. Brown of misconduct, 

 lied to a Lowe’s supervisor, and 

 conspired to undermine performance of a task assigned to 

 another Lowe’s employee. 

According to Mr. Brown, all of these incidents involved white employees 

and resulted in “little or no” discipline. Appellant’s Opening Br. at 13 

(ECF pagination). 

Responding to Lowe’s summary judgment motion, Mr. Brown had an 

obligation to cite the parts of the record that he relied on. Fed. R. Civ. P. 

56(c)(1)(A); DUCivR 56-1(c)(2)(C). But in his response to the summary 

judgment motion, he did not mention any of these incidents. R., Vol. V at 

6-63.3

Instead, he relied solely on the episode when Lowe’s placed him and 

a cashier on “final notice” for verbal abuse. On its face, the disciplinary 

 

3

 In attaching documents to his summary judgment brief, Mr. Brown 

included an affidavit discussing many of these alleged incidents. Id.at 200-

04. But in the brief itself, Mr. Brown did not refer to the affidavit for this 

purpose. Thus, the district court had no reason to comb through Mr. 

Brown’s exhibits to find the references in his affidavit to leniency toward 

white employees. 

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sanctions for these two employees do not signal disparate treatment, for 

the sanctions were identical: placement on final notice. 

Mr. Brown argues that the cashier should have been disciplined more 

harshly because she was already on final notice. On this issue, Lowe’s 

presented the district court with evidence that the cashier was not on final 

notice when the infraction took place. To counter that evidence in district 

court, Mr. Brown relied solely on pages 89 and 160 of his deposition. Id. 

at 14 n.3. These page references do not create a genuine issue of fact about 

the cashier’s disciplinary status. 

The matter is mentioned in Mr. Brown’s deposition on page 160, but 

not page 89. On page 160, Mr. Brown was asked how he knew the cashier 

was already on final notice; he answered that the cashier had said she was. 

Id.at 106; see also Appellant’s Opening Br. at 19 (ECF pagination) 

(statement by Mr. Brown that the cashier had confessed to Mr. Brown that 

she already had a “final warning”). But the cashier’s out-of-court statement 

to Mr. Brown would constitute inadmissible hearsay, which cannot be used 

to oppose summary judgment. See Riggs v. AirTran Airways, Inc., 497 F.3d 

1108, 1121 (10th Cir. 2007) (stating that a coworker’s statement cannot be 

used in summary judgment proceedings because it constitutes inadmissible 

hearsay). Without the cashier’s alleged statement, Mr. Brown lacks any 

admissible source of personal knowledge regarding the cashier’s 

disciplinary status. See In re Grandote Country Club Co., 252 F.3d 1146, 

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1152 (10th Cir. 2001) (holding that the plaintiff cannot oppose summary 

judgment based on his own testimony when his personal knowledge was 

based on another person’s inadmissible hearsay statement). 

Without evidence of unequal treatment of other individuals under 

similar circumstances, we conclude that the district court properly granted 

summary judgment to Lowe’s on the claim of disparate treatment for 

putting Mr. Brown on final notice. 

2. Retaliation 

 Mr. Brown also claims that Lowe’s put him on final notice to 

retaliate for his complaint about race discrimination. 

 To survive summary judgment on this claim, Mr. Brown had to 

present evidence of a causal connection between his complaint and Lowe’s 

decision to put him on final notice. See Argo v. Blue Cross & Blue Shield 

of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir. 2006). Mr. Brown failed to 

present any such evidence. 

 Mr. Brown alleges that (1) he engaged in protected activity by 

complaining about a coworker’s use of the term “nigger” and (2) Lowe’s 

put Mr. Brown on final notice as a result. But when Mr. Brown voiced his 

complaint, he was already being investigated for his confrontation with the 

cashier. Because the investigation preceded the complaint, the Court 

cannot infer a retaliatory motive. See Morgan v. Hilti, Inc., 108 F.3d 1319, 

1324 (10th Cir. 1997) (holding that the plaintiff failed to create an 

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inference of pretext when the disciplinary actions “simply completed the 

disciplinary process already set in motion” before the plaintiff had engaged 

in protected speech). In the absence of evidence of a retaliatory motive, 

Lowe’s was entitled to summary judgment on Mr. Brown’s claim that 

Lowe’s placed him on final notice to retaliate for his complaint of race 

discrimination. 

B. Termination of Employment 

In claiming disparate treatment and retaliation, Mr. Brown also 

points to his termination. But he failed to timely exhaust these claims as 

they relate to his termination. 

 1. The Requirement of Timely Exhaustion 

 Mr. Brown had to exhaust these claims by filing an administrative 

charge with the Utah Antidiscrimination and Labor Division. That filing 

was due 300 days after the underlying conduct. 42 U.S.C. § 2000e-5(e)(1) 

(2012); see Davidson v. America Online, Inc., 337 F.3d 1179, 1183 n.1 

(10th Cir. 2003). Mr. Brown failed to meet this deadline, for he waited 360 

days to file the administrative charge relating to his termination. 

2. Mr. Brown’s Failure to Timely Exhaust the DisparateTreatment and Retaliation Claims Relating to His 

Termination 

 Trying to avoid the time-bar, Mr. Brown argues that the claims 

trigger the Lilly Ledbetter Fair Pay Act of 2009 and the continuing 

violation doctrine. We reject these arguments. 

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a. The Lilly Ledbetter Fair Pay Act 

 The Lilly Ledbetter Fair Pay Act does not apply. This law addresses 

claims for employment compensation, not employment termination. See 

Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 630 (10th Cir. 2012). 

 Mr. Brown argues that the statute broadly covers practices beyond 

compensation decisions, pointing to the statutory language: 

“discriminatory compensation decision or other practice.” 42 U.S.C. 

§ 2000e-5(e)(3)(A) (2012). In Mr. Brown’s view, the phrase “other 

practice” broadens the statute to encompass decisions not strictly confined 

to “compensation.” 

 We rejected this view in Almond v. Unified School District, 665 F.3d 

1174, 1180 (10th Cir. 2011). There we held that the phrase “other practice” 

applies only to “claims of unequal pay for equal work.” Almond, 665 F.3d 

at 1180; see also Daniels, 701 F.3d at 630-31 (holding that a claim 

involving failure to promote does not constitute an “other practice” 

because it is not “compensation related”). Under Almond, Mr. Brown 

cannot avoid the time-bar by invoking the Lilly Ledbetter Fair Pay Act. 

b. The Continuing Violation Doctrine 

 Mr. Brown’s reliance on the continuing violation doctrine is also 

misguided, for this doctrine does not apply to claims involving disparate 

treatment or retaliation. Martinez v. Potter, 347 F.3d 1208, 1210-11 (10th 

Cir. 2003). 

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c. Summary 

 After his firing, Mr. Brown waited 360 days to file an administrative 

claim. Because the filing was due in 300 days, we cannot consider the 

termination in connection with the claims of disparate treatment and 

retaliation. 

3. The District Court’s Characterization of Timeliness as a 

 Jurisdictional Defect 

 The district court correctly regarded the administrative charge as 

untimely. In the district court’s view, the delay prevented the district court 

from obtaining jurisdiction. But this characterization was incorrect, for the 

failure to timely exhaust is not jurisdictional. See Zipes v. Trans World 

Airlines, Inc., 455 U.S. 385, 393 (1982) (“We hold that filing a timely 

charge of discrimination with the EEOC is not a jurisdictional prerequisite 

to suit in federal court, but a requirement that, like a statute of limitations, 

is subject to waiver, estoppel, and equitable tolling.”); see also Harms v. 

I.R.S., 321 F.3d 1001, 1009 (10th Cir. 2003) (citing Zipes and noting that 

“the failure to timely exhaust administrative remedies is not a 

jurisdictional deficiency but rather is in the nature of a violation of a 

statute of limitations”). 

 Because the 300-day deadline is not jurisdictional, it may be subject 

to equitable tolling when an employer or agency actively engages in 

deception. Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002). But Mr. 

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Brown does not claim deception. Instead, he urges equitable tolling on 

grounds that he had no attorney and was under a state administrative 

agency’s control. These arguments are invalid for two reasons. 

 First, the absence of a party’s attorney does not trigger equitable 

tolling. See id. at 958. 

 Second, the Utah Antidiscrimination and Labor Division did not have 

an obligation to decide the matter more quickly than it did. The agency 

may have waited longer than necessary to issue its decision, but that does 

not constitute deception. 

 As a result, Mr. Brown failed to justify equitable tolling and the 

administrative charge was not timely. His delay prevents us from 

considering the disparate-treatment and retaliation claims arising out of the 

termination. 

III. Claims Involving a Hostile Work Environment 

 For the claim of a hostile work environment, Mr. Brown had to 

present evidence supporting a finding that his workplace was permeated 

with discriminatory intimidation, ridicule, and insults so severe or 

pervasive that they created an abusive working environment. MacKenzie v. 

City & Cty. of Denver, 414 F.3d 1266, 1280 (10th Cir. 2005). 

 Mr. Brown failed to satisfy this burden. He points to several 

episodes, but only three are pertinent: a single racial slur during a threeyear period, the firing of nonwhite employees over an eight-month period, 

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and antagonistic conduct by coworkers. These episodes do not constitute an 

abusive working environment. 

The single racial slur is insufficient as a matter of law. See Morris v. 

City of Colo. Springs, 666 F.3d 654, 665-69 (10th Cir. 2012) (holding that 

three isolated incidents of “sporadic . . . slurs,” combined with allegations 

of yelling, did not establish a hostile work environment). 

Mr. Brown also alleges that in an eight-month period, the store 

manager fired only nonwhite employees. But Mr. Brown acknowledges 

plausible, race-neutral explanations for the firings, even if he finds the 

explanations unconvincing. Mr. Brown may have subjectively felt that his 

job was in jeopardy because of his race, but his suspicion that the firings 

were racially motivated was speculative. And that speculation is not 

enough to prevent summary judgment. See Alires v. Amoco Prod. Co., 774 

F.2d 409, 411 (10th Cir. 1985).

Antagonistic conduct by coworkers was also insufficient to create a 

triable issue of fact. The alleged antagonism manifested itself in raceneutral disagreements between Mr. Brown and his coworkers. But ordinary 

workplace disagreements do not suggest a hostile work environment. See 

MacKenzie v. City & Cty. of Denver, 414 F.3d 1266, 1280 (10th Cir. 2005). 

In these circumstances, we conclude that the district court properly 

granted summary judgment to Lowe’s on the claim of a hostile work 

environment. 

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IV. Disposition 

 The district court’s judgment is affirmed. 

 Entered for the Court 

 Robert E. Bacharach 

 Circuit Judge 

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