Petition for Writ of Certiorari — Ronnie R. Rolland, Sr., Petitioner v. Aurora Retirement, LLC, dba Cherry Creek Retirement Village, LLC, et al.

Supreme Court briefAug 28, 2023

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United States Court of Appeals for the Tenth Circuit

Byron White United States Courthouse

1823 Stout Street

Denver, Colorado 80257

(303) 844-3157

Clerk@ca 10.uscourts.gov

Christopher M. Wolpert

Clerk of Court

Jane K, Castro

Chief Deputy Clerk

June 09, 2023

Mr. Jeffrey P. Colwell

United States District Court for the District of Colorado

Office of the Clerk

Alfred A. Arraj U.S. Courthouse

901 19th Street

Denver. CO S0294-3589

RE:

22- 5216, Holland v. Aurora Retirement, et ai

Disl/Ag docket: 1:20-CV-02338-RMR-STV

Dear Clerk:

Pursuant to Federal Rule of Appellate Procedure 41, the Tenth Circuit's mandate m the

above-referenced appeal issued today. The court's April 12, 2023 judgment takes effec.

this date. With the issuance of this letter, jurisdiction is transferred back to the lower

court.

Piease contact this office if you have questions.

Sincerely,

Christopher M Wolpert

Clerk of Court

cc:

Allison Joy Dodd

Ronnie R. Rciland Sr.

Kristina M. Wright

CMW/sds

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Document: 010110842019

Date Filed: 04/12/2023

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FILED

United States Court of Appeals

Tenth Circuit

UNITED STATES COURT OF APPEALS

April 12, 2023

FOR THE TENTH CIRCUIT

Christopher M. Wolpert

Clerk of Court

RONNIE R. ROLLAND, SR.,

Plaintiff - Appellant,

No. 22-1216

(D.C. No. L20-CV-02338-RMR-STV)

(D. Colo.)

AURORA RETIREMENT, LLC, d/b/a

Cherry Creek Retirement Village, LLC;

CENTURY PARK ASSOCIATES, LLC

Defendants - Appellees.

ORDER AND JUDGMENT*

lie fore HARTZ. KELLY, and BACHARACH, Circuit Judges.

Ronnie R. Rolland, Sr., appeals the district court’s order granting summary

judgment in

m favor of his former employer, Cherry Creek Retirement Village

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

unanimously that oral argument would not materially assist in the determination of

thisappeal.

Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(0). The case .s therefore

ordered submitted without oral argument. This order and judgment ,s 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 consistent with

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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(CCRV).1 on his claims alleging retaliation and a hostile work environment.

Exercising jurisdiction under 28 U.S.C. § 1291. we affirm.

Factual Background

Mr. Rolland, who is African American, worked as a housekeeper for CCRV.

According to CCRV, beginning in July 2019, it received complaints from residents

that Mr. Rolland did not properly clean their apartments. He disputed that his

performance was substandard.

Mr. Rolland alleged that on August 13, 2019, his immediate supervisor,

Rodney Rudolph, accused him of telling an associate that Mr. Rudolph never worked.

Mr.

Rolland claimed Mr. Rudolph yelled at him and threated to “get [him] back.

R. at 660 (internal quotation marks omitted). Before that incident, Mr. Rolland had

not had any issues with Mr. Rudolph. Mr. Rolland reported the incident to the

Executive Director of the facility, Dennis Veen. Two days later, Mr. Veen met with

Mr. Rolland and Mr. Rudolph to discuss Mr. Rolland’s job performance and his

complaints about Mr. Rudolph. This was the first time Mr. Rolland complained

about Mr. Rudolph to anyone at CCRV.

According to CCRV, his job performance did not improve after the meeting

Mr. Veen met with him again to discuss the continued concerns about his job

performance. On August 27, Mr. Rolland gave Mr. Veen a document titled ‘'1 itle

In his complaint, Mr. Rolland also named Century Park Associates as a

but he did not distinguish

between it and CCRV,

the motion for

defendant,-.

,' asand

CCRV.

dhe district

summary judgment referred to the defendants collectively

court adopted that approach, as do we.

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VII Protected Activity Complaint for Correction. ” R. at 780-84. He said

Mr. Rudolph was

aware- that he had a disability, but he did not provide specifics

about the disability

. He claimed Mr. Rudolph yelled “in a loud aggressive man[n]er

during the August 13 incident. R. at 780.

He also said Mr. Rudolph wanted him to

be fired because Mr. Rudolph was having an

inappropriate sexual relationship with a

female employee and continuing the relationship would be easier

gone. Finally, he com

if Mr. Rolland were

plained that his work schedule had been changed.

Over the next month, CCRV managers met with Mr. Rolland three times to

issues, his

discuss a possible transfer to another department, his job performance

relationship with co-workers and supervisor, and expectations going forward. At the

third meeting, Mr. Rolland was given a corrective action form that identified

performance issues

and stated that he had made an inappropriate “racial comment

during a department meeting

R. at 786. The form said he was expected to improve

his performance and relationships with co-

workers within two weeks. Mr. Rolland

denied that he had performance issues or engaged in any inappropriate conduct.

According to CCRV, Mr. Rolland received additional job training , and on one

occasion. Mr.

Veen and Mr. Rudolph shadowed him while he cleaned apartments,

offering training and suggestions for improvement, which he failed to implement.

Within a week of receiving the corrective action form

review his personnel file. When he was

Mr. Rolland asked to

notified of the request the next day,

. Veen asked Mr. Rolland to check in about the personnel-file request at the end ot

his shift. Mr. Rolland did not check in with Mr. Veen.

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The next day, Mr. Rolland gave Mr. Veen a document titled “Second Title VU

Protected Activity Complaint,

” asserting that he had been subjected to “retaliation

d [a] hostile working environment [and] false write-up reports intentionally.”

R. at 791. Specifically, he claimed the corrective action allegations were false and

that Mr. Rudolph was harassing and retaliating against him for submitting the first

document and for complaining at a

discriminatory .

department meeting that Mr. Rudolph "was being

towards [Mr. Rolland] as compared to another non-Black

employee that (Mr. Rudolph] was

addressing at the meeting.” R. at 793-95.

The following day, Mr. Veen

personnel file

scheduled a time for Mr. Rolland to review his

. Soon after reviewing his file, Mr. Rolland resigned in a document

titled "Notice of Constructive Discharge/Exiting Notice.

“forced to quit [his] position”

retaliation.

” R. at 800. He said he was

at CCRV because of “continued harassment,

[and] discrimination/creating a[] hostile work environment that

interfered] with [his] performance.” Id. He also said CCRV created an

for his written and oral complaints

“intolerable]” work environment in

in retaliation

and that allegations about his poor performance were unfounded. Id.

: race discrimination,

Mr . Rolland sued CCRV, asserting three Title Vll claims

retaliation, and hostile work environment/harassment. Because he does not pursue

his race discrimination claim on appeal, we

only on the other two claims

do not address it here and focus instead

For his hostile work environment/harassment claim,

an d created a hostile work

Mr. Rolland alleged that CCRV unlawfully harassed him

as a baseless workplace corrective

environment by imposing what he characterized

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action against him and because Mr. Rudolph falsely accused him of making racial

slurs during a meeting. For his retaliation claim, Mr. Rolland alleged that CCRV

retaliated against him and constructively discharged him for complaining about

Mr. Rudolph at the department meeting and in the two documents he gave Mr. Veen.

CCRV filed a motion for summary judgment, which Mr. Rolland opposed. He

also moved to exclude two affidavits CCRV submitted in support of its motion. A

magistrate judge recommended that the district court grant the motion for summary

judgment and deny the motion to exclude. On de novo review, the district court

overruled Mr. Rolland’s objections, adopted the magistrate judge's recommendation,

granted summary judgment for CCRV, and denied the motion to exclude.

II.

District Court's Order

A. Summary Judgment

In ruling on CCRV’s motion for summary judgment, the district court

considered Mr. Rolland’s claims using the burden-shifting framework articulated in

McDonnell Douglas Corp. v. Green, 41 1 U.S. 792, 802-04 (1973). Under that

framework, Mr. Rolland had the initial burden of establishing a prima facie case of

hostile work environment/harassment and retaliation. See id. at 802. The court held

that he failed to meet his burden for either claim.

The district concluded that Mr. Rolland failed to meet his burden ot showing a

prima facie case because he presented no evidence of “race-based harassment, let

alone harassment that rises to the level ot a hostile work environment.

R. at 1236

(footnote omitted); see Bolden v. PRC Inc., 43 K3d 545, 55 i (10th Cir. 1994)

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(a plaintiff claiming a racially hostile work environment must show that “the

harassment was pervasive or severe enough to alter the terms, conditions, or privilege

of employment,” and that it “was racial or stemmed from racial animus”; “[ gjeneral

harassment” that is not race-based is not actionable (internal citations omitted)).

For his retaliation claim, Mr. Rolland alleged that CCRV retaliated against him

and constructively discharged him for complaining about Mr. Rudolph at the

department meeting and in the two documents he gave Mr. Veen. Construed

liberally, his pleadings asserted claims under both the participation clause and the

opposition clause of Title VII. The court first concluded that he failed to establish a

prima facie case under the participation clause because he had not filed an EfcOC

claim or otherwise “participated ... in an investigation', proceeding, or hearing

under” Title VII. 42 U.S.C. § 2000e-3(a).

With respect to his claim under the opposition clause, the court held that

Mr. Rutland's oral complaint and first written complaint were not protected activity

that supported a Title VII claim because they did not complain about unlawful

discrimination. See Vaughn v. Epworfh Vida, 537 K3d 1147, 1150 (10th Cir. 2008)

(to establish a prima facie case of retaliation, the plaintiff must show he engaged in

protected activity, he suffered an adverse employment action; and there was a causal^

connection between the protected activity and the adverse action). Specifically, his

com plaint at the meeting accused Mr. Rudolph of general harassment, not of conduct

that violated Title VII. And although Mr. Rolland's first letter used the term "Title

VII Protected Activity,” R. at 780, referred to “retaliation” and a “hostile working

•

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environment," id., and said he has a disability, it did not identify the disability, assert

that he was discriminated against based on his disability, or describe conduct that

violated Title VII.2 Instead, it alleged that Mr. Rudolph wanted Mr. Rolland to be

fired so he could continue an affair with a co-worker.

The district court concluded that Mr. Rolland’s second letter constituted

protected activity because it asserted that Mr. Rudolph discriminated against him

based on race. But the court noted that the only events that occurred after he sent the

letter were (1) Mr. Veen scheduled a time for him to review his file, (2) Mr. Rolland

reviewed the file, and (3) he resigned. It thus concluded the evidence did not support

a reasonable inference that he suffered an adverse employment action as a result of

sending that letter. In so concluding, the court held the evidence did not establish a

claim for constructive discharge because, other than Mr. Rudolph’s August 13

comment, Mr. Rolland did not “set forth any evidence detailing specific actions

taken against him that he believes rendered the workplace environment intolerable.”

R. at 1229. And the court found that the corrective action form did not constitute

constructive discharge because “negative performance evaluations do not establish

constructive discharge without evidence that the reviews set the employee on a

dead-end path towards termination,” id. (brackets and internal quotation marks

omitted), and there was no evidence that the form was the first step toward

2 Mr. Rolland did not assert a claim under the Americans with Disabilities Act

or allege that this letter constituted protected activity because it raised the issue of

sex discrimination or sexual harassment against the co-worker.

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Mr. Rolland’s inevitable termination. See Rivero v. Bd. of Regents ofUmvr ofN.M

950 F.3d 754. 761 .(10th Cir. 2020) (constructive-discharge plaintiff must show he

resigned because employer discriminated against him “to the point where a

reasonable person in his position would have felt. . . [he] had /io other choice but to

quit"; evidence that he resigned of his “own free will, even if as a result of the

employer’s actions,” is insufficient to survive summary judgment (internal quotation

marks omitted)); Tran v. Trs. of Slate Colls, in Colo., 355 F.3d 1263, 1267 (10th Cir.

2004) (corrective actions and negative pertormance reviews are insufficient to show

constructive discharge). Indeed, the court noted that the evidence suggested

otherwise given that the form said he had two weeks to improve his performance and

he was not terminated after that two-week period. Thus, his evidence did not raise a

triable question about whether CCRV's actions made working conditions so dilficult

that a reasonable person in his position would have felt compelled to resign.

B. Motion to Exclude

The evidence Mr. Rolland sought to exclude was statements in two employees

affidavits and one affiant’s contemporaneous notes concerning Mr. Rolland s job

performance. The district court determined that disputed facts in the affidavits may

have been referenced generally in the [magistrate judge’s] recitation of the statement

of facts, [but] those facts were not relied on in any way by the magistrate judge in

making his recommendation.” R. at 1310. Accordingly, the district court adopted

the magistrate judge’s recommendation and denied the motion to exclude as moot.

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HI.

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Discussion

On appeal Mr. Rolland claims the district court: (1) erred by granting

summary judgment on his hostile work environment/harassment claim;

(2) mistakenly required a showing ol racial discrimination to support his retaliation

claim: (3) improperly relied on inadmissible hearsay in granting summary judgment

and erred by denying his motion to exclude; and (4) violated his right to due process

by granting summary judgment without affording him the opportunity to seek

punitive damages at trial.

We review de novo the district court’s decision granting CCRV’s motion for

summary judgment. Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 762 F.3d

11 m; 1118 (10th Cir. 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.' ’ Id. (quoting Fed. R. Civ. P. 56(a)).

“We review a district court’s evidentiary rulings at the summary judgment

stage for abuse of discretion.” Argo v. Blue Cross & Blue Shield of Kan Inc.,

452 F.3d 1193, 1199 (10th Cir. 2006).

Because Mr. Rolland is proceeding without counsel, we construe, his filings

liberally. See Ledbetter v. City of Topeka, 318 F.3d 1183, 1 187 (10th Cir. 2003).3

3 CCRV argues that we lack jurisdiction over the appeal because Mr. Rolland's

briefs do not comply with the Federal Rules of Appellate Procedure. Briefing

deficiencies may result in waiver or forfeiture, see Bronson v. Swensen, 500 F.3d

1099. 1104 (10th Cir. 2007); Garretly. Selby ConnonMaddux & Janer, 425 F.3d

836. 841 (10th Cir. 2005); Eateries, Inc. v. J.R. Simplot Co., 346 F.3d 1225, 1232

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But we

argume

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■‘cannot take on the responsibility of serving as [his] attorney in constructing

nts and searching the record.” Garrett v. Selby Connor Maddux & damn

425 F.3d 836. 840 (10th Cir. 2005).

Having considered Mr

standards of review, we

. Rolland’s first three arguments under the appropriate

discern no reversible error in the district court's decision.

The district court applied the correct legal standards, and we agree

and well-reasoned analysis,

with its thorough

We therefore affirm the grant of summary judgment and

denial of the motion to exclude for substantially the same

district court's order of July 6. 2022,

reasons stated in the

which adopted the magistrate judge’s

recommendation dated June 1,202^..

We do not address Mr. Rolland’s fourth argument because he did not raise the

issue in district court so did not preserve

Tr.. 994 F.2d 716, 724 (10th Cir. 1993)

it for appeal. See Lyons v. Jefferson Bank &

We nevertheless note that where, as here.

Rolland) had notice and an opportunity to be heard and

the opposing party (i.e., Mr.

rhe district court reviewed the parties’ briefs and supporting materials before entering

judgment, the entry of judgment without

process or to a

a trial does not violate either the right to due

trial. See Shannon v. Graves, 257 F.3d 1164, 1167 (10th Cir. 2001)

(jury trial); Curley v.

Perry, 246 F.3d 1278, 1284 (10th Cir. 2001) (due process).

(10th Cir. 2003), but they do not affect our jurisdiction

briefs are sufficient to avoid waiver and forfeiture.

. And Mr. Rolland's pro se

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IV.

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Conclusion

The judgment is affirmed.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 20-cv-02338-RMR-STV

RONNIE R. ROLLAND, SR.

Plaintiff,

AURORA RETIREMENT, LLC, d/b/a Cherry Creek Retirement Village, LLC, and

CENTURY PARK ASSOCIATES, LLC,

Defendants.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Magistrate Judge Scott T. Varholak

This matter comes before the Court on Defendants’ Motion for Summary Judgment

[#80] (“Defendants’ Motion’’) and Plaintiffs Motion of Objection and Argument in

Opposition to Defendant's Summary Judgment Motion to Exclude Insufficient Defective

Hearsay Document Evidence Supporting Defendant’s Summary Judgment Motion Rule

F.R.E. 801, et seq./Rule 56, F.R.C.P. et seq. [#82] (“Plaintiffs Motion”). Both Motions

have been referred to this Court. [#83] The Court has carefully considered the Motions

and related briefing, the entire case file, and the applicable case law, and has determined

that oral argument would not materially assist in the disposition of the instant Motions.

For the following reasons, this Court respectfully RECOMMENDS that Defendants’

Motion be GRANTED and Plaintiffs Motion be DENIED AS MOOT.

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UNDISPUTED FACTS

This action arises out of Plaintiff Ronnie R. Rolland Sr.’s employment with

Defendant Aurora Retirement Village, LLC, d/b/a Cherry Creek Retirement Village

("ARV").

[See generally #64]

Except where expressly noted, the relevant facts are

undisputed.

On March 11, 2019, Plaintiff—who is African American—was hired as a floor

technician at CCRV’s2 long-term care facility in Aurora, Colorado. [#80, SOF1; See also

id. at 1 (stating that Plaintiff is African American), #85 at 1 (same)] On June 1, 2019,

Plaintiff was transferred to a housekeeper position. [Id. at SOF2] Plaintiffs immediate

supervisor was Rodney Rudolph, an African-American male, and the Executive Director

of the facility was Dennis Veen, a Caucasian male. [Id. at SOF3, SOF8]

Defendants maintain that, beginning in July 2019, CCRV received complaints from

residents that Plaintiff did not properly clean their apartments. [Id. at SOF5] According

1 Plaintiff filed two responses to Defendants’ Motion, both entitled “Plaintiffs Reply Motion

and Objections in Opposition to Defendant’s Summary Judgment Motion.” [##81, 85]

Though substantially similar, there are slight differences between the two responses. [Id.]

The Court will thus treat the latter filed response as an amended response (the “Amended

Response"). [#85] The undisputed facts are drawn the Statement of Undisputed Facts

set forth in Defendants’ Motion [#80 at 2-7] and Plaintiffs response to those facts as set

forth in the Amended Response [#85 at 4-12]. The Court refers to the sequentially

numbered facts set forth in the Statement of Undisputed Facts as “SOF#.” The Court

periodically cites directly to the exhibits submitted with the parties’ briefing on the Motion

to provide additional context as well as to address certain facts purportedly disputed by

Plaintiff.

2 Plaintiffs Amended Employment Discrimination Complaint (the “Complaint”) [#64] is

somewhat convoluted and difficult to follow. Plaintiff names both ARV and Century Park

Associates, LLC (“Century Park”) as Defendants in this action, but does not distinguish

between the two Defendants. [Id.] Defendants’ Motion likewise treats ARV and Century

Park as a singular entity and refers to them collectively as CCRV. [#80 at 1] The Court

will thus follow the parties' lead and refers to Defendants collectively as CCRV, without

distinguishing between the two Defendants.

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to Defendants, two residents refused to have Plaintiff clean their apartments, one resident

complained about dust, and another resident complained that Plaintiff did not know how

to make a bed. [Id.) Plaintiff disputes that his performance was substandard. [#85 at

SOF5]

On August 13, 2019, Mr. Rudolph accused Plaintiff of telling the CCRV front desk

associate that Mr. Rudolph never works and “sits on his ass.” (#80, SOF6; see a/so #804 at 118:14-122:3 (Plaintiffs deposition testimony describing incident)] Mr. Rudolph told

Plaintiff that he “was going to get [Plaintiff] back" and that Plaintiff was “going to be crying.”

[#80-4 at 118:14-122:3] Prior to that date, Plaintiff had not had any issues with Mr.

Rudolph. [#80, SOF7] On August 15, 2019, Mr. Veen met with Plaintiff and Mr. Rudolph.

[Id. atSOF8] At that time, Plaintiff made various comments about Mr. Rudolph. [Id.] This

was the first time that Plaintiff complained about Mr. Rudolph to anyone at CCRV. [Id. at

SOF9]

On August 26, 2019, Plaintiff visited his doctor for “anxiety/depression related to

work supervisory related issues” and was prescribed medication. [Id. at SOF12] The

next day, Plaintiff submitted to Mr. Veen a handwritten letter entitled “Title VII Protected

Activity Complaint for Correction” (the “August 27 Letter”). [Id. at SOF13; #80-6] In the

August 27 Letter, Plaintiff indicated that Mr. Rudolph was aware that Plaintiff had a

disability, but did not provide any specifics about the disability. [#80-6 at 1] Plaintiff then

described the August 13 incident in which Mr. Rudolph yelled at Plaintiff and complained

that Mr. Rudolph changed Plaintiffs schedule. [Id. at 1-3] Finally, Plaintiff indicated that

Mr. Rudolph wanted Plaintiff fired because Mr. Rudolph was having an affair with his

assistant and continuing the affair would be easier if Plaintiff was not around. [Id. at 3-5]

■

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On September 3, 2019, Plaintiff saw his doctor again for supervisory stress issues.

[#80, SOF15] That same day

Mr. Veen and CCRV’s Regional Director of Operations,

Telia Wendell, met with Plaintiff to

discuss Plaintiffs job performance issues and

expectations moving forward.3 [Id. at SOF14] According to Defendants, on September

24, 2019, Mr. Rudolph and the facility’s Business Manager, Jennifer Garner, again met

with Plaintiff to discuss complaints that Plaintiff did not fold or deliver laundry a fact that

Plaintiff disputes. [Id. at SOF16; #85, SOF16]

On or about October 1

Form.

2019, Mr. Veen provided Plaintiff with a Corrective Action

[##80-4 at 147:2-12; 80-8] The Corrective Action From asserted that Plaintiff had

not changed linens in an apartment for several weeks, had delivered wrong sheets to an

apartment, and had made a

resident’s bed with another resident’s sheets. [#80-8] The

Corrective Action Form also asserted that a resident had requested that Plaintiff not clean

their apartment. [Id.] Finally

the Corrective Action Form stated that Plaintiff made a racial

comment in a department meeting.

[Id.] The Corrective Action Form indicated that

Plaintiff had been previously warned about performance issues. [Id.] It stated that Plaintiff

was expected to improve his performance

issues and relationships with coworkers within

two weeks and that this was his final warning.

[Id.]

Plaintiff disputes that he had

performance issues or engaged in any inappropriate conduct. [#80-4 at 147:13-18]

Plaintiff maintains that, also on October 1, 2019, he signed an Education

Acknowledgment Form indicating that Plaintiff needed training in the folding of tablecloths

and placing linens on

the correct shelf. [##64 at 5; 85, SOF20; 80-10] A substantially

3 Defendants maintain that Mr. Veen and Ms. Wendell discussed with

transfer to another department, but Plaintiff disputes that assertion. [Id. at SOF14, #85,

SOF14]

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similar Education Acknowledgment Form was apparently placed in Plaintiffs personnel

file, but the date of October 1 appears to have been altered to reflect a date of October

2.4 [##80-9; 80-10] Defendants maintain that Mr. Rudolph completed another Education

Acknowledgment Form on October 7, 2019, stating that Plaintiff needed training in

housekeeping and cleaning of apartments. [##80, SOF21; 80-11] Though the October

7 Education Acknowledgment Form purports to contain Plaintiffs signature, Plaintiff

maintains that he never signed the form and had never seen the form prior to litigation.

[##80-11; 85, SOF21]

On October 7, 2019, Plaintiff asked to review his personnel file. [#80, SOF22]

Mr. Veen was not notified of Plaintiffs request until the end of the day. [Id.] The next

day, Mr. Veen asked Plaintiff to check in about the personnel file request at the end of his

shift. [Id. at SOF23] Plaintiff did not check in with Mr. Veen because, according to

Plaintiff, he forgot. [Id.]

On October 8, 2019, Plaintiff submitted to Mr. Veen another handwritten letter, this

one entitled “Second Title VII Protected Activity Complaint" (the “October 8 Letter”) [Id.

at SOF 24; #80-12] In the letter, Plaintiff described his complaints as: “retaliation and

hostile working environment/subjecting employee to false write-up reports intentionally.”

[#80-12 at 1] Plaintiff further asserted that, at some unspecified meeting, Plaintiff had

accused Mr. Rudolph of discriminating against Plaintiff “as compared to another nonBlack employee that he was addressing at the meeting” (the “Oral Complaint"). [Id. at 35] Plaintiff then accused Mr. Rudolph of retaliating against Plaintiff and harassing Plaintiff

4 The purported October 2, 2019 Education Acknowledgment Form also indicated that

training was conducted on September 9, 2019, a fact not included in the October 1,2019

Education Acknowledgment Form. [##80-9; 80-10]

•

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in response to the August 27 Letter and the Oral Complaint. [Id. at 1-5] In particular,

Plaintiff complained that the statements in the Corrective Action Form were false and

were made in retaliation for the August 27 Letter and the Oral Complaint. [Id. at 3-5]

On October 9, 2019, Mr. Veen scheduled a time for Plaintiff to review his personnel

file. [#80, SOF25] On October 14, 2019, Plaintiff reviewed his personnel file but he was

not allowed to copy it. [Id. at SOF27; #80-4 at 170:6-10] On October 27, 2019, Plaintiff

sent Mr. Veen a handwritten letter entitled “Notice of Constructive Discharge/Exiting

Notice” (the “October 27 Letter”). [#80-13] In the October 27 Letter, Plaintiff stated that

he was “forced to quit [his] position” at CCRV because of continued harassment,

retaliation discrimination/creating a[] hostile work environment that interferes with [his]

performance." [Id. at 1] Plaintiff further stated that the “intolerable" environment was in

retaliation for his submission of the August 27 Letter and the October 8 Letter and that

allegations about Plaintiffs poor performance were unfounded. [Id. at 1-3]

On August 6, 2020, Plaintiff, proceeding pro se filed the instant lawsuit against

ARV and Century Park. [#1] Construed liberally, the operative Complaint brings three

Title VII claims: (1) discrimination based on race, (2) retaliation, and (3) hostile work

environment. [#64] On November 3, 2021, Defendants filed Defendants’ Motion seeking

summary judgment on each of Plaintiffs claims.

[#80]

Plaintiff has responded to

Defendants’ Motion [#85] and filed Plaintiffs Motion, which seeks to exclude three

affidavits filed with Defendants’ Motion [#82].

Defendants have filed a consolidated

response to Plaintiffs Motion and reply brief in support of Defendants’ Motion. [#86]

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STANDARD OF REVIEW

II.

Summary judgment is appropriate only 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);

Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). The movant

bears the initial burden of making a prima facie demonstration of the absence of a genuine

issue

of material fact, which the movant may do “simply by pointing out to the court a lack

of evidence ... on an essential element of the nonmovant’s claim” when the movant does

not bear the burden of persuasion at trial. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664,

670-71

(10th Cir. 1998). If the moving party bears the burden of proof at trial, “the moving

party must establish, as a

matter of law, all essential elements of the [claim or affirmative

defense on which summary judgment is sought] before the nonmoving party can be

obligated to bring forward any specific facts alleged to rebut the movant s case.” Pelt v.

Utah, 539 F.3d 1271

support its motion

1280 (10th Cir. 2008). In other words, the moving party “must

with credible evidence showing that, if uncontroverted, the moving

party would be entitled to a directed verdict." Rodell i/. Objective Interface Sys., Inc., No.

14-CV-01667-MSK-MJW, 2015 WL 5728770, at *3 (D. Colo. Sept. 30, 2015) (citing

Celotex Corp., 477 U.S. at 331). If the movant carries its initial burden, the burden then

shifts to the nonmovant "to go beyond the pleadings and set forth specific facts that would

be admissible in evidence in the event of trial.” Adler, 144 F.3d at 671 (quotation omitted).

“[A] ‘judge’s function’ at summary judgment is not 'to weigh the evidence and

determine

the truth of the matter but to determine whether there is a genuine issue for

trial.”’ Tolan v. Cotton

572 U.S. 650, 656 (2014) (quoting Anderson v. Liberty Lobby,

‘

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Inc., 477 U.S. 242, 249 (1986)). Whether there is a genuine dispute as to a material fact

depends upon whether the evidence presents a sufficient disagreement to require

submission to a jury. See Anderson, 477 U.S. at 248—49; Stone v. Autoliv ASP, Inc., 210

F.3d 1132, 1136 (10th Cir. 2000); Carey v. U.S. Postal Serv., 812 F.2d 621, 623 (10th

Cir. 1987). Evidence, including testimony, offered in support of or in opposition to a

motion for summary judgment must be based on more than mere speculation, conjecture,

or surmise. Bones v. Honeywell Int’l Inc., 366 F.3d 869, 875 (10th Cir. 2004). A fact is

“material” if it pertains to an element of a claim or defense; a factual dispute is “genuine”

if the evidence is so contradictory that if the matter went to trial, a reasonable jury could

return a verdict for either party. Anderson, All U.S. at 248. “Where the record taken as

a whole could not lead a rational trier of fact to find for the non-moving party, there is no

‘genuine issue for trial.1” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986) (citing First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289

(1968)). In reviewing a motion for summary judgment, the Court “view[s] the evidence

and draw[s] reasonable inferences therefrom in the light most favorable to the non-moving

party.” See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).

“A pro se litigant's pleadings are to be construed liberally and held to a less

stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d

1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The

Haines rule applies to ail proceedings involving a pro se litigant.” Id. at 1110 n.3. The

court, however, cannot be a pro se litigant’s advocate. See Yang v. Archuleta, 525 F.3d

925, 927 n.1 (10th Cir. 2008).

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ANALYSIS

Defendants’ Motion seeks summary judgment on each of Plaintiffs’ claims. [#80]

Plaintiff’s Motion seeks to exclude from summary judgment consideration three affidavits

submitted with Defendants’ Motion. [#82] The Court addresses each Motion below.

Plaintiff’s Race Discrimination Claim

Plaintiffs Complaint asserts a claim for unlawful race discrimination. [#64 at 2]

Under Title VII, it is unlawful for an employer to “discharge any individual, or otherwise to

discriminate 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).

“[A]n unlawful employment practice is

established,” if the plaintiff can demonstrate that his race “was a motivating factor for any

employment practice, even though other factors also motivated the practice. Id. § 2000e2(m). A Title VII plaintiff can prove a disparate treatment claim “either (1) by direct

evidence that a workplace policy, practice, or decision relies expressly on a protected

characteristic, or (2) by using the burden-shifting framework set forth in [McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973)].” Young v. United Parcel Sen/., Inc., 135

S. Ct. 1338, 1345 (2015).

“Direct evidence is evidence that—if believed—proves the existence of a fact in

issue without inference or presumption.” Eddy v. City and Cnty. of Denver, No. 15-cv02539-MSK-STV, 2018 WL 1470196, at *12 (D. Colo. Mar. 26, 2018) (citing Punt v. Kelly

Servs., 862 F.3d 1040, 1047-48 (10th Cir. 2017)). Plaintiff has failed to cite to any direct

evidence of discrimination.

As a result, Plaintiff must rely upon the burden-shifting

framework set forth in McDonnell Douglas.

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Under that framework, to make a prima facie case, a plaintiff must show that: (1) he

is a member of a protected class; (2) he suffered an adverse employment action; (3) he

was qualified for the position at issue; and (4) he was treated less favorably than others

not in the protected class.5 Piercy v. Maketa, 480 F.3d 1192, 1203 (10th Cir. 2007).

Defendants argue that Plaintiff has failed to present evidence showing that he suffered

an adverse employment action. [#80 at 9-10] The Court agrees.

An adverse employment action “includes significant change in employment status,

such as hiring, firing, failing to promote, reassignment with significantly different

responsibilities, or a decision causing a significant change in benefits." Piercy, 480 F.3d

at 1203 (quotation omitted),

But “a mere inconvenience or an alteration of job

responsibilities” does not qualify as an adverse employment action.

omitted).

Id. (quotation

Likewise, “[mjinor or trivial employment actions do not rise to the level of

adverse actions,’ and ‘not everything that makes an employee unhappy is [] actionable.

White v. Schafer, 738 F. Supp. 2d 1121, 1134 (D. Colo. 2010) (quoting Robinson v.

Cavalry Portfolio Servs. LLC, 365 F. App’x 104, 114 (10th Cir. 2010)), aff’d, 435 F. App’x

764 (10th Cir. 2011).

Plaintiff first argues that he was discriminated against when Defendants denied

Plaintiff a copy of his personnel file. [#85 at 13] But denying Plaintiff a copy of his

personnel file is the type of minor or trivial action that does not constitute an adverse

employment action.

Tehan v. Sacred Heart Univ., No. 3:06cv267 (PCD), 2008 WL

5 If the plaintiff succeeds in making a prima facie case, then the employer must have an

opportunity to articulate some legitimate, non-discriminatory reason for its actlon_ Yo“n£[;

135 S. Ct. at 1345. If the employer articulates such a reason, then the burden shifts back

to the plaintiff to prove the employer’s proffered reason was pretextual. Id.

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11417096, at *11-12 (D. Conn. Sept. 17, 2008) (denying employee access to her

personnel file does not constitute an adverse employment action); Martin v. Nw. Mut. Life

Ins. Co., Nos. 05-C-209, 05-C-1097, 2008 WL 360448, at *6 (E.D. Wis. Feb. 8, 2008)

(employer’s failure to timely provide plaintiff with his personnel file after he was terminated

did not qualify as an adverse employment action). This is especially true considering that

CCRV allowed Plaintiff to review his file, just not copy it. And, in any event, Plaintiff has

not identified any other employees who were permitted to copy their personnel files and,

as a result, Plaintiff has failed to establish that he was treated less favorably than others

not in the protected class.6 Accordingly, Plaintiff has failed to make a prima facie case of

race discrimination with respect to being denied a copy of his personnel file.

Alternatively, Plaintiff argues that he was constructively discharged. [#85 at 17]

“[C]onstructive discharge is an adverse employment action." Strickland v. United Parcel

Serv., 555 F.3d 1224,1230 n.4 (10th Cir. 2009). A constructive discharge claim has two

elements: (1) Plaintiff was unlawfully discriminated against by the employer “to the point

where a reasonable person in his position would have felt compelled to resign, and (2)

plaintiff actually resigned. Rivero v. Bd. of Regents of Univ. of New Mexico, 950 F.3d

754, 761 (10th Cir. 2020) (quoting Green v. Brennan, 136 S. Ct. 1769, 1777 (2016)).

6 Plaintiff argues that “comparison to similar[ly] situate[d] employees is not required as

part of a plaintiffs] prima fac[ie] case” and that instead he is only required to show

“circumstances giving rise to [an] inference of discrimination.’ [#85 at 13 (citing Sorbo v.

United Parcel Serv., 432 F.3d 1169, 1173 (10th Cir. 2005)]. But Plaintiff also fails to

identify any evidence of circumstances by which the Court can infer that discriminatory

action took place. Indeed, Plaintiff fails to present any evidence that the decision to not

permit him to copy the file was made based on race. Plaintiff likewise does not produce

evidence which supports his argument that the documents in his file were created

fraudulently for the purpose of race discrimination, nor that the two documents in

question—even if fraudulent—qualify as an adverse employment action. [See #85 at 14]

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To succeed on a constructive discharge claim, a plaintiff must show that the

conditions of employment were objectively intolerable and that she had “no other choice

but to quit.” Id. (quotation and emphasis omitted). “The plaintiffs burden in a constructive

discharge case is substantial . .. because a constructive discharge requires a showing

that the working conditions imposed by the employer are not only tangible or adverse, but

intolerable.” EEOC v. PVNF, LLC, 487 F.3d 790, 805 (10th Cir. 2007) (quoting Tran v.

Trs. of the State Colls, in Colo., 355 F.3d 1263, 1270-71 (10th Cir. 2004)).

Here, Plaintiff has not presented any evidence of conditions that could support a

constructive discharge claim. Besides the August 13 comment by Mr. Rudolph, Plaintiff

has failed to set forth any evidence detailing specific actions taken against him that he

believes rendered the workplace environment intolerable. And even in Plaintiffs October

27 Letter—in which he purportedly provides notice of his constructive discharge

Plaintiff

merely states that his workplace was intolerable due to “continued harassment,

retaliation, discrimination,” without providing any specific examples of such harassment,

retaliation, or discrimination. [#80-13]

Nor does the fact that Plaintiff was given a Corrective Action Form constitute a

constructive

discharge.

“[Negative

performance

evaluations

not establish

constructive discharge without evidence that the reviews set the employee on a ‘deadend path towards termination.’” Moore-Stovall v. Shinseki, 969 F.Supp.2d 1309, 1327

(D. Kan. 2013) (quoting Fischer v. Avanade, Inc., 519 F.3d 393, 411 (7th Cir. 2008)).

Plaintiff has failed to provide any evidence that his Corrective Action Form was the first

step in a dead-end path towards termination. Indeed, the Corrective Action Form itself

indicated that Plaintiff had two weeks to improve his performance [#80-8] and, notably,

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Plaintiff was not terminated after that two-week period. [See ##80-4 (Corrective Action

Form dated October 1, 2019); 80-13 (Plaintiffs notice of constructive discharge dated

October 27, 2019)] And while it may be true that Plaintiff was unhappy at the end of his

tenure working for Defendants, “not every unhappy employee has an actionable claim of

constructive discharge pursuant to Title VII.” Block v. Kwai-Howeils, Inc., 92 F. App’x

657, 662 (10th Cir. 2004) (quoting Bolden v. PRC, Inc., 43 F.3d 545, 552 (10th Cir.1994)),

see also Anderson v. Clovis Mun. Schs., 265 F. App'x 699, 707 (10th Cir. 2008) (“[Plaintiff]

may have felt ‘ganged up on and ‘alone oftentimes,’ but given the objective standard

employee's subjective feelings or beliefs are not relevant in a constructive discharge

claim.” (quotation omitted)); cf. Acrey v. Am. Sheep Indus. Ass'n, 981 F.2d 1569, 1574

(10th Cir. 1992) (finding supervisor’s continuous harassment made it nearly impossible

for Plaintiff to continue performing her job, showing a constructive discharge).

Accordingly, the Court

respectfully RECOMMENDS that Defendants’ Motion be

GRANTED with respect to Plaintiffs race discrimination claim and that summary

judgment be entered in favor of Defendants on that claim.

Plaintiff’s Title VII Retaliation Claim

Plaintiffs Complaint seeks to bring a Title VII retaliation claim pursuant to both the

participation clause and the opposition clause of 42 U.S.C. § 2000e-3(a). [#64 at 3] “The

'participation clause’ provides that an employer may not retaliate against an employee

'because [the employee] has . . . participated in any manner in any investigation,

proceeding, or hearing under’ Title VII.” Vaughn v. Epworth Villa, 537 F.3d 1147, 1151

(10th Cir. 2008) (alterations in original) (quoting 42 U.S.C. § 2000e-3(a)).

“The

participation clause is designed to ensure that Title VII protections are not undermined by

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retaliation against employees who use the Title VII process to protect their rights.

Id.

(quoting Brower v. Runyon, 178 F.3d 1002, 1006 (8th Cir. 1999)). “The ‘opposition

clause,’ meanwhile, provides that an employer may not retaliate against an employee

'because he has opposed any practice made an unlawful employment practice’ by Title

VII.” Id. (quoting 42 U.S.C. § 2000e-3(a)). The distinction is important because the Tenth

Circuit has concluded that the participation clause affords broader protection to

employees than does the opposition clause. Id. at 1151-52.

To the extent Plaintiff seeks to base his retaliation claim on the participation clause,

that claim fails. The Tenth Circuit has made clear that “the participation clause applies

only when an employee ‘has made a charge, testified, assisted, or participated in any

manner tn an investigation, proceeding, or hearing under this subchapter’—that is, in a

formal EEOC proceeding. Poffv. Okla. ex rel. Okla. Dep’t of Mental Health & Substance

Abuse Servs., 683 F. App’x 691, 703 (10th Cir. 2017); see also Littlejohn v. City of N.Y.,

795 F.3d 297, 316 (2d Cir. 2015) (“\J]he participation clause only encompasses

participation in formal EEOC proceedings; it does not include participation in an internal

employer investigation unrelated to a formal EEOC charge.” (quotation omitted)). While

the Tenth Circuit has not "addressed the limits of this clause,” it has refused to apply the

clause to a case where the adverse action did not have “anything to do with a pending

EEOC complaint or investigation.” Poff, 683 F. App’x at 703; see also Mackley v. TW

Telecom Holdings, Inc., No. 12-2774-SAC, 2013 WL 1502034, at *3 (D. Kan. April 10,

2013) (noting district courts in the Tenth Circuit have held “that the participation clause

does not extend its protection to internal investigations conducted before Title VII

proceedings begin”). Here, Plaintiff has not provided evidence that Defendants took any

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action after Plaintiff initiated a formal EEOC proceeding and, indeed, it appears that

Plaintiff did not file his charge of discrimination until December 11, 2019, nearly two

months after he resigned from CCRV.

[#1 at 88] Accordingly, the Court respectfully

RECOMMENDS that Defendants’ Motion be GRANTED to the extent Plaintiffs retaliation

claim is premised upon the participation clause.

With respect to the opposition clause, Title VII makes it unlawful to retaliate against

an employee for opposing employment practices made unlawful by the statute

. 42U.S.C.

§ 2000e-3(a). The Tenth Circuit has recognized three elements of a Title VII retaliation

claim:

(1) the plaintiff engaged in protected opposition to discrimination; (2) the plaintiff

suffered an adverse employment action; and (3) there is a causal connection between

the protected activity and the adverse employment action.

Petersen v. Utah Dept of

Corrs,, 301 F.3d 1182, 1188 (10th Cir. 2002).

The first time that Plaintiff complained to anyone at CCRV about Mr. Rudolph

anyone else at CCRV—was

Mr. Rudolph, and Mr. Veen.

during the August 15, 2019 meeting between Plaintiff,

[#80, SOF8-9]

But Plaintiff has failed to present any

evidence that he asserted during that meeting that Mr. Rudolph had engaged in conduct

violative of Title VII. And because “Title VII does not prohibit all distasteful practices by

employers,” opposition to employer’s conduct is only protected by Title VII “if it is

opposition to a ‘practice made an unlawful employment practice by [Title VII]

301

Peterson,

F.3d at 1188 (alteration in original) (second quoting 42 U.S.C. § 2000e-3(a)). As a

result, Plaintiff did not engage in protected opposition to discrimination during the August

15 meeting, and that meeting cannot form the basis for Plaintiffs retaliation claim . See

Gunnell v. Utah Valley State College, 152 F.3d 1253, 1262-63 (10th Cir. 1998) (noting a

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prima facie case for a retaliation claim under the opposition prong requires that plaintiff

■

engaged in opposition to Title VII discrimination): Mackley, 2013 WL 1502034, at *2

(finding that plaintiffs participation in internal investigation did not constitute opposition

clause retaliation because "a prerequisite of a retaliation claim is that the conduct

retaliated against be protected conduct”); see also 42 U.S.C. § 2000e-3(a) (making it

unlawful to retaliate against an employee for opposing “any practice made an unlawful

employment practice by this subchapter") (emphasis added).

Similarly, while Plaintiff entitled the August 27 Letter “Title VII Protected Activity

Complaint for Correction,” that letter does not actually assert any conduct violative of Title

VII—in particular, it does not indicate that Plaintiff had been discriminated against on the

basis of his race.7 [#80-6] Instead, Plaintiff indicated that Mr. Rudolph wanted Plaintiff

fired so that Mr. Rudolph could continue an affair with a co-worker.8 [Id.] So, once again

the August 27 Letter does not constitute protected activity and cannot form the basis for

a retaliation claim. See Gunnell, 152 F.3d at 1262; Mackley, 2013 WL 1502034, at *2;