Smith v. Equal Employment Opportunity Commission , 180 F. App'x 14 ( 2006 )


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  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    May 9, 2006
    TENTH CIRCUIT                        Elisabeth A. Shumaker
    Clerk of Court
    ROCHELLE SMITH,
    Plaintiff - Appellant,                   No. 05-2049
    v.                                          (D. New Mexico)
    EQUAL EMPLOYMENT                             (D.C. No. CIV-03-465 JP/ACT)
    OPPORTUNITY COMMISSION,
    United States, Cari M. Dominguez,
    Chair,
    Defendant - Appellee.
    ORDER AND JUDGMENT *
    Before LUCERO, BALDOCK, and HARTZ, Circuit Judges.
    Rochelle Smith is a former investigator at the Albuquerque District Office
    of the Equal Employment Opportunity Commission (EEOC). She sued the EEOC
    on April 16, 2003, in the United States District Court for the District of New
    Mexico, claiming violations of Title VII of the Civil Rights Act of 1964 and the
    Rehabilitation Act of 1973. She alleged that she was the victim of race
    *
    This order and judgment is not binding precedent, except under the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.
    discrimination, national-origin discrimination, disability discrimination, and
    retaliation. The district court entered summary judgment in favor of the EEOC on
    all claims. Ms. Smith appeals the judgment and the district court’s denial of her
    motion for leave to depose Ida Castro, the former Chair of the EEOC. We have
    jurisdiction under 
    28 U.S.C. § 1291
     and affirm.
    I.    BACKGROUND
    Ms. Smith, who is Caucasian, was employed by the Albuquerque office of
    the EEOC as an investigator from October 1993 until March 2002. In June 1999
    Christella Garcia Alley, an Hispanic woman who had also been an investigator in
    the Albuquerque office, was promoted, becoming Ms. Smith’s supervisor.
    According to Ms. Smith, after the promotion Ms. Alley subjected Ms. Smith to a
    steady stream of race-based harassment. Ms. Alley allegedly told a fellow
    supervisor, Patricia Gonzalez-Morrow, that Ms. Smith “‘thought she was better
    than Hispanic women in the office,” and “‘that’s the way White women are.’”
    Aplt. App. at 255. Ms. Alley also allegedly told Ms. Gonzalez-Morrow on more
    than one occasion that she intended to put Ms. Smith “‘in her place,’” 
    id. at 258
    ,
    and that Ms. Smith was her former supervisor’s “‘little girl [but s]he’s not going
    to be mine,’” 
    id. at 234
    . Ms. Smith further claims that Ms. Alley often addressed
    her as “‘Mi Hita,’” a Spanish term used by elders to address their daughters or
    granddaughters. 
    Id. at 300
    .
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    On September 28, 2000, Ms. Alley directed Ms. Smith, who does not speak
    Spanish, to conduct an intake interview of two Hispanic men, one of whom did
    not speak English. According to Ms. Smith, she did “the best she could to
    communicate with them,” but afterwards she dropped some documents on a desk
    in the front office and remarked that the task had been “fucking bullshit.” 
    Id. at 214
    . On September 29, 2000, Ms. Alley issued Ms. Smith a Letter of Warning
    (LOW) for her conduct the day before although, according to Ms. Smith, cursing
    was common in the office. On October 17, 2000, Ms. Smith filed a union
    grievance based on the LOW. The grievance did not allege that she had been
    discriminated against. On May 18, 2001, Ms. Smith’s grievance was denied.
    In June 2001 Ms. Smith requested and was granted a leave of absence.
    Ms. Smith claims that this leave was prompted by the physical and emotional
    stress she was experiencing as a result of the harassment at work. Ms. Smith was
    on leave from June 21 through August 25, 2001.
    On July 25, 2001, while Ms. Smith was on leave, the Albuquerque EEOC
    office announced to employees that it would be giving cash and time-off awards
    for fiscal year 2001, and informed employees that they could nominate themselves
    or any other employee for an award. Ms. Smith was not nominated for an award,
    although she had received awards in 1995, 1997, and 1999 without nominating
    herself. All 11 employees who were nominated received an award.
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    Ms. Smith’s last day working in the Albuquerque EEOC office was
    October 26, 2001, when she requested to be placed on leave without pay. Her
    application for disability retirement was granted on March 23, 2002.
    On November 15, 2001, Ms. Alley and the head of the Albuquerque office,
    Georgia Marchbanks, completed Ms. Smith’s performance appraisal for fiscal
    year 2001. EEOC employees are evaluated as either “Outstanding,” “Proficient,”
    or “Unacceptable.” Ms. Alley and Ms. Marchbanks determined that her
    performance merited an appraisal of “Proficient.” In all her previous years with
    the EEOC, Ms. Smith had received an appraisal of “Outstanding.”
    Ms. Smith first contacted an in-house Equal Employment Opportunity
    (EEO) counselor on August 24, 2001, the day before she returned to work after a
    two-month leave. It was during this leave that she had been told of racist remarks
    by Ms. Alley against her. After Ms. Smith had worked her last day in the
    Albuquerque EEOC office, she filed three separate EEO Charges of
    Discrimination: on October 29, 2001; November 30, 2001; and January 9, 2002.
    The October charge challenged the issuance of the LOW, alleging that Ms. Smith
    received it as the result of race and national-origin discrimination. The charge
    also alleged that Ms. Alley falsely accused Ms. Smith of being anti-Hispanic, that
    Ms. Alley encouraged co-workers to be hostile toward Ms. Smith, and that Ms.
    Alley minimized the value of Ms. Smith’s work.
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    In her second EEO charge, Ms. Smith alleged that she had suffered race
    and national-origin discrimination and retaliation. She based her allegations on
    the following actions: she had not received a cash or time-off award in 2001,
    Ms. Alley had discussed Ms. Smith’s earlier EEO complaint with other
    employees, and Ms. Alley had required Ms. Smith to provide a doctor’s note for a
    one-day absence from work.
    Ms. Smith’s third EEO charge alleged discrimination on the basis of race,
    national origin, and mental disability, as well as retaliation. The charge
    complained that she had received a “Proficient” rather than an “Outstanding”
    rating on her performance appraisal, and that Ms. Alley had discussed
    Ms. Smith’s earlier EEO complaints with other employees.
    On April 16, 2003, Ms. Smith filed this lawsuit against the EEOC, claiming
    race discrimination, national-origin discrimination, disability discrimination and
    retaliation. On January 23, 2004, the district court dismissed Ms. Smith’s race-
    discrimination claim based on issuance of the LOW. It determined that she had
    failed to exhaust her administrative remedies with respect to that claim because
    she had not complied with the requirement of 
    29 C.F.R. § 1614.105
    (a)(1) that she
    contact an EEO counselor within 45 days of the alleged discriminatory action. On
    August 20, 2004, the district court granted summary judgment to the EEOC on the
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    rest of Ms. Smith’s claims. The court also denied Ms. Smith’s request to depose
    Ida Castro, the former chair of the EEOC.
    II.   DISCUSSION
    A.     Standard of Review
    “We review the district court’s grant of summary judgment de novo,
    applying the same legal standard that should have been used by the district court.”
    Rivera v. City & County of Denver, 
    365 F.3d 912
    , 920 (10th Cir. 2004) (internal
    quotation marks and brackets omitted). Summary judgment is appropriate “if the
    pleadings, depositions, answers to interrogatories, and admissions on file,
    together with the affidavits, if any, show that there is no genuine issue as to any
    material fact and that the moving party is entitled to judgment as a matter of law.”
    Fed. R. Civ. P. 56(c).
    B.     Hostile Work Environment
    Title VII of the Civil Rights Act of 1964 prohibits discrimination “against
    any individual with respect to his compensation, terms, conditions, or privileges
    of employment, because of such individual’s race, color, religion, sex, or national
    origin.” 42 U.S.C. § 2000e-2(a)(1). This prohibition reaches racially hostile or
    abusive work environments. See Bolden v. PRC Inc., 
    43 F.3d 545
    , 550 (10th Cir.
    1994). “To constitute actionable harassment, the conduct must be sufficiently
    severe or pervasive enough to alter the conditions of the victim’s employment and
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    create an abusive working environment.” 
    Id. at 550-51
     (internal quotation marks
    and brackets omitted). In addition, the plaintiff must show that “the harassment
    was racial or stemmed from racial animus,” 
    id. at 551
    , and that she “subjectively
    perceive[d] the environment to be abusive,” Harris v. Forklift Systems, Inc., 
    510 U.S. 17
    , 21 (1993).
    The district court ruled that the one overt instance of racial enmity that
    Ms. Smith alleged—namely, Ms. Alley’s false accusation that she was anti-
    Hispanic—was insufficient, standing alone, to support a hostile-work-
    environment claim. The court also ruled that the other hostile actions alleged by
    Ms. Smith, which were not overtly race-based, did not support a claim for a
    racially hostile work environment. The court further found that “none of these
    alleged hostile actions was sufficiently severe or pervasive to alter the conditions
    of [Ms. Smith’s] employment and create an abusive working environment.” Aplt.
    App. at 427.
    On appeal Ms. Smith argues that her allegations of severity and
    pervasiveness of the harassment were sufficient to survive summary judgment.
    Four of Ms. Smith’s allegations have a racial component: (1) Ms. Alley falsely
    accused her of assigning walk-in EEOC clients to particular EEOC investigators
    based on the race of the clients, (2) Ms. Alley called her a racist, (3) Ms. Alley
    claimed Ms. Smith was anti-Hispanic, and (4) Ms. Alley addressed her with
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    demeaning names, including “Mi Hita,” a term used by Spanish-speakers to
    address their daughters or granddaughters. In addition, Ms. Smith claims that
    Ms. Alley harassed her in numerous other ways. Among these allegations were
    that Ms. Alley falsely accused her of intending to commit perjury, refused to let
    her teach and mentor others in the office, refused to appoint her acting supervisor
    of the office on certain occasions, accused her of not being a team player, told her
    colleagues that Ms. Smith thought she was better than them, pressured colleagues
    to make complaints about Ms. Smith, “strutt[ed] by, sneer[ed] at or ignor[ed]
    Ms. Smith,” Aplt. Br. at 22 n.2, denied her smoking breaks, denied her an annual
    award, and disciplined Ms. Smith with the LOW for using swear words in the
    office when others were not so disciplined. Ms. Smith argues that the district
    court erred in finding that the ostensibly nonracial harassment would not support
    a claim of hostile work environment because those actions were part of a course
    of conduct that was “‘tied to evidence of discriminatory animus.’” Aplt. Br. at 24
    (quoting Bolden, 43 F.3d at 551). She contends that the alleged misconduct,
    considered in its totality, created a pervasively hostile work environment.
    We disagree. To begin with, we note that we can limit this claim to her
    work environment during the two months from August 25 to October 26, 2001,
    because during her earlier time at work she had not perceived any racial
    discrimination. As noted above, an employee cannot claim that a work
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    environment constitutes a hostile work environment under Title VII unless the
    employee “subjectively perceive[s] the environment to be abusive.” Harris, 
    510 U.S. at 21
    . We addressed the meaning of the subjective-perception requirement
    in Sauers v. Salt Lake County, 
    1 F.3d 1122
     (10th Cir. 1993). In Sauers a female
    employee alleged a sexually hostile work environment. 
    Id. at 1124
    . We affirmed
    the district court’s judgment for the defendant, stating, “although plaintiff
    presented significant evidence objectively supporting a sexual harassment claim,
    the evidence in the record supports the district court’s finding that plaintiff
    herself did not perceive [her supervisor’s] actions as sexual harassment, but
    merely as ‘disgusting and degrading conduct.’” 
    Id. at 1127
    . As Sauers shows,
    Ms. Smith needed to believe not simply that she was being harassed, but also that
    the harassment was racially motivated. Yet, as Ms. Smith’s counsel conceded at
    oral argument, Ms. Smith did not perceive her treatment by Ms. Alley as racially
    motivated until August 20, 2001, when she was told of the alleged racist
    comments Ms. Alley had made about her. Accordingly, Ms. Smith’s hostile-
    work-environment claim could have arisen only during her last two months at
    work.
    Turning to that two-month period, we find inadequate evidence to satisfy
    another element of a hostile-work-environment claim—namely, that the “conduct
    must be sufficiently severe or pervasive to alter the conditions of the victim’s
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    employment and create an abusive working environment.” Bolden, 43 F.3d at
    550-51 (internal quotation marks and brackets omitted). The only act alleged by
    Ms. Smith that can be dated during her work between August 25 and October 26,
    2001, is the failure to give her an employee award. The other misconduct she
    alleges either occurred before that period, occurred after she quit going to work
    (her “Proficient” work evaluation in November 2001), or is undated. Thus, she
    has failed to establish the basis for a claim that while working between August
    and October 2001 she suffered sufficiently serious harassment to support a Title
    VII claim. See id.
    C.     Dismissal of LOW Claim
    Ms. Smith also appeals the district court’s grant of summary judgment on
    her race-discrimination claim related to the letter of warning (LOW) issued by
    Ms. Alley on September 29, 2000. The district court ruled that the claim was
    barred because Ms. Smith did not consult an EEO counselor within 45 days of the
    alleged adverse employment action. Ms. Smith does not dispute that such
    consultation is required by 
    29 C.F.R. § 1614.105
     (relating to employees of certain
    federal agencies), which states:
    (a) Aggrieved persons who believe they have been
    discriminated against on the basis of race, color, religion, sex,
    national origin, age or handicap must consult a Counselor prior to
    filing a complaint in order to try to informally resolve the matter.
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    (1) An aggrieved person must initiate contact with a Counselor
    within 45 days of the date of the matter alleged to be discriminatory
    or, in the case of personnel action, within 45 days of the effective
    date of the action.
    See Davis v. U. S. Postal Serv., 
    142 F.3d 1334
    , 1339 (10th Cir. 1998).
    Ms. Smith argues, however, that the 45-day time limit was satisfied because
    she initiated a union grievance within 45 days of issuance of the LOW, and
    thereby fulfilled the policies underlying exhaustion—“protecting administrative
    agency authority and promoting judicial efficiency.” Aplt. Br. at 25; see Monreal
    v. Potter, 
    367 F.3d 1224
    , 1233 (10th Cir. 2004). But Ms. Smith did not allege
    racial discrimination in her union grievance, so the agency was not alerted to her
    discrimination claim. The union grievance did not serve the purpose of a
    consultation with an EEO counselor. Cf. 
    id.
     (class complaint of discrimination
    put agency on notice of individual claims).
    Ms. Smith also suggests that the time limit should be tolled because she
    made an EEO report regarding the LOW “as soon as it became cognizable as a
    ‘practice’ motivated by her race.” Aplt. Br. at 26. The district court rejected this
    argument, explaining that “the fact that a plaintiff may not have discovered the
    alleged discriminatory motive for an adverse employment action until later does
    not extend the 45-day period in which to contact an EEOC counselor” because the
    “45-day period begins to run when the plaintiff learns of the adverse employment
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    action and so is on notice to inquire whether the motive was discriminatory.”
    Aplt. App. at 91-92 (internal quotation marks omitted).
    We note that 
    29 C.F.R. § 1614.105
    (a)(2) provides for tolling in certain
    circumstances:
    The agency or the Commission shall extend the 45-day time
    limit in paragraph (a)(1) of this section when the individual shows
    that he or she was not notified of the time limits and was not
    otherwise aware of them, that he or she did not know and reasonably
    should not have been known [sic] that the discriminatory matter or
    personnel action occurred, that despite due diligence he or she was
    prevented by circumstances beyond his or her control from
    contacting the counselor within the time limits, or for other reasons
    considered sufficient by the agency or the Commission.
    But the extension is to be granted by the EEOC. Ms. Smith presents no reason
    why she did not seek such an extension. Ms. Smith was advised by the EEO
    counselor’s report that she had made her initial EEO contact more than 45 days
    after the issuance of the LOW and that a formal complaint was therefore likely to
    be dismissed. Nothing in the record indicates that she offered any reason for her
    late contact with the EEO counselor; in fact, the line on the counseling report for
    “Reason for Delayed Contact Beyond 45 Days, if Applicable” is left blank, Aplt.
    App. at 306. Therefore, we must agree with the district court that this claim is
    barred.
    D. Retaliation
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    Ms. Smith also challenges the district court’s ruling that she had not
    presented a prima facie case of retaliation. The district court based its ruling on
    Ms. Smith’s failure to demonstrate that she had been subjected to an adverse
    employment action and her failure to cite any evidence in the record to support
    the allegations of retaliation.
    Rather than addressing the district court’s reasoning, her argument in
    support of the retaliation claim in her brief-in-chief is as follows:
    After Smith engaged in protected activity by confronting her
    supervisor and initiating an EEO charge, her work circumstances
    changed such that they could no [sic] be survived through temporary
    leaves of absence. The record is replete with evidence of retaliation.
    The District Court erred in granting summary judgment on the
    retaliation claim.
    Aplt. Br. at 26-27. A footnote to the paragraph summarily lists instances of
    alleged retaliation. We will not search the record for evidence that the listed
    instances were motivated by retaliation. This argument is insufficient to present
    the matter on appeal. See American Airlines v. Christensen, 
    967 F.2d 410
    , 415
    n.8 (10th Cir. 1992). See also Murrell v. Shalala, 
    43 F.3d 1388
    , 1389 n.2 (10th
    Cir. 1994) (“[P]erfunctory complaints fail to frame and develop an issue
    sufficient to invoke appellate review.”).
    E.     Disability Discrimination
    Ms. Smith appeals the dismissal of her claim that the EEOC failed to
    accommodate her disability. The district court granted summary judgment to the
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    EEOC because Ms. Smith did not present evidence showing disability under the
    Rehabilitation Act of 1973 and because she failed to respond to the EEOC’s
    argument to this effect in its summary-judgment motion. Citing D.N.M. Local
    Rule Civ. 7.1(b), the district court ruled that Ms. Smith’s failure to respond to the
    EEOC’s argument constituted consent to grant the motion with respect to that
    claim. The court also ruled that Ms. Smith had not suffered an adverse
    employment action.
    Ms. Smith’s opening brief makes no attempt to explain her failings below
    or to argue why the violations of the local rules should not bar her claim.
    Therefore, we must affirm the district court on this issue.
    F.     Direct Evidence of Discrimination
    Both Ms. Smith and the EEOC have devoted portions of their briefs to the
    question whether Ms. Smith presented direct or indirect evidence of racial
    discrimination to the district court. Because this issue is irrelevant to the
    outcome of this appeal, we need not decide it. See Griffin v. Davies, 
    929 F.2d 550
    , 554 (10th Cir. 1991).
    G.     Deposition of Ida Castro
    Finally, Ms. Smith challenges the district court’s denial of her motion for
    leave to depose Ms. Castro, the former chair of the EEOC. The magistrate judge
    denied Ms. Smith’s motion because the EEOC had shown that “Ms. Castro has no
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    personal knowledge or recollection of Plaintiff or this lawsuit or the
    administrative case and grievance,” Aplt. Ap. at 108, and Ms. Smith had not
    shown that the deposition would produce any information leading to admissible
    evidence, see Fed. R. Civ. P. 26. On appeal the extent of Ms. Smith’s argument
    is: “This witness has discoverable information about the supervision of this office
    and management decisions, including first-hand knowledge of the denial of
    Ms. Smith’s grievance.” Aplt. Br. at 28. We are not persuaded.
    III.   CONCLUSION
    We AFFIRM the ruling of the district court.
    ENTERED FOR THE COURT
    Harris L Hartz
    Circuit Judge
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