Tran v. Trustees of State Colleges in Colorado

• Decision Date: 27 January 2004
• Docket Number: No. 02-1048.,02-1048.
• Citation: 355 F.3d 1263
• Parties: Hanh Ho TRAN, Plaintiff-Appellant, v. TRUSTEES OF THE STATE COLLEGES IN COLORADO, Metropolitan State College Of Denver, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

355 F.3d 1263

Hanh Ho TRAN, Plaintiff-Appellant, v. TRUSTEES OF THE STATE COLLEGES IN COLORADO, Metropolitan State College Of Denver, Defendant-Appellee.

No. 02-1048.

United States Court of Appeals, Tenth Circuit.

January 27, 2004.

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Ronald E. Gregson, Gregson & Pixler, P.C., Denver, CO, for Plaintiff-Appellant.

Andrew D. Ringel (Thomas J. Lyons with him on the brief), Hall & Evans, L.L.C., Denver, CO, for Defendant-Appellee.

Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and ARMIJO,^* District Judge.

ARMIJO, District Judge.

On March 9, 2000, Hanh Ho Tran (Ms. Tran) filed a complaint in the United States District Court for the District of Colorado against the Trustees of the State Colleges in Colorado, Metropolitan State College (the College). Ms. Tran's complaint asserted claims against the College for sexual harassment and retaliation under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e to 2000e-17. On January 18, 2002, the district court issued a memorandum opinion and order granting summary judgment in favor of the College on all of Ms. Tran's claims. Ms. Tran appeals from the judgment of the district court entered in accordance with that memorandum opinion and order. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and our review is de novo. See Wells v. Colo. Dep't of Transp., 325 F.3d 1205, 1209 (10th Cir.2003). We affirm the judgment of the district court for the reasons set forth below.

I.

In her opening brief, Ms. Tran focuses exclusively on her retaliation claim and does not advance any argument or authority in support of her sexual harassment claim. "Issues not raised in the opening brief are deemed abandoned or waived." Coleman v. B-G Maint. Mgmt. of Colo., Inc., 108 F.3d 1199, 1205 (10th Cir.1997); accord Pino v. Higgs, 75 F.3d 1461, 1463 (10th Cir.1996). Further, "`[a] litigant who fails to press a point by supporting it with pertinent authority, or by showing why it is sound despite a lack of supporting authority or in the face of contrary authority, forfeits the point.'" Phillips v. Calhoun, 956 F.2d 949, 953-54 (10th Cir.1992) (quoting Pelfresne v. Village of Williams Bay, 917 F.2d 1017, 1023 (7th Cir.1990)). Accordingly, Ms. Tran's sexual harassment claim is abandoned or waived, and we only consider the issues pertaining to her retaliation claim that are raised in her opening brief.

II.

We consider Ms. Tran's retaliation claim under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Wells, 325 F.3d at 1212. In order to establish a prima facie case of retaliation, Ms. Tran must show (1) that she engaged in protected activity; (2) that the College took an adverse employment action against her; and (3) that there exists a causal connection between the protected activity and the adverse action. See Aquilino v. Univ. of Kan., 268 F.3d 930, 933 (10th Cir.2001). If Ms. Tran establishes a prima facie case of retaliation, then the burden of production shifts to the College to articulate a legitimate, nondiscriminatory reason for the adverse employment action. If the College meets this burden, then summary judgment is warranted unless Ms. Tran can show that there is a genuine issue of material fact as to whether the reasons for the adverse employment action proffered by the College are pretextual. See Wells, 325 F.3d at 1212.

III.

The factual basis for Ms. Tran's retaliation claim is that, as a result of her sexual harassment complaint against her supervisor, Mr. Liberatore, she was reassigned to work under the supervision of the College's "web manager," Ms. Hanna, in March or April 1997, and was later reassigned to work under the supervision of the College's "Student Information Systems Coordinator," Ms. Doyle, in December 1997. According to Ms. Tran, these reassignments constituted adverse employment actions sufficient to establish a prima facie case of retaliation, and the College's explanations for the reassignments were pretextual. Ms. Tran also claims that her resignation from the College on September 9, 1999, constituted a constructive discharge based on a pattern of retaliatory conduct by Ms. Doyle and other College personnel that began on the date of her first reassignment in March 1997.

The district court concluded that the College was entitled to summary judgment on these claims because Ms. Tran did not meet her burden of coming forward with evidence that she was subjected to an adverse employment action or that the College's reasons for its actions were pretextual. In determining whether Ms. Tran suffered an "adverse employment action" for purposes of her retaliation claim, the district court referred to its earlier analysis of Ms. Tran's sexual harassment claim, in which the district court quoted the definition of "tangible employment action" provided in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Under that definition, "[a] tangible employment action constitutes a 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." Id.

On appeal, Ms. Tran asserts that the district court applied the wrong legal standard for defining "adverse employment action" in the context of her retaliation claim. In particular, she asserts that the definition of "tangible employment action" cited by the district court should only be used for the purpose of determining quid pro quo sexual harassment and not for the purpose of determining whether the requirements of a prima facie case of retaliation are met.

We conclude that the district court applied the correct legal standard to determine whether Plaintiff established a prima facie case of retaliation. In this regard, we note the district court's conclusion that Ms. Tran "presented no substantial evidence that the reassignment was, in fact, tangible or adverse action." Aplt.'s.App., Vol. III, at 1020 (emphasis added). The definition of a "tangible employment action" provided in Ellerth, 524 U.S. at 761, 118 S.Ct. 2257, has often been used to describe what constitutes an adverse employment action for purposes of a Title VII retaliation claim. See, e.g., Wells, 325 F.3d at 1213; Aquilino, 268 F.3d at 934. To the extent that we may define "adverse employment action" more liberally under a case-by-case approach, the result would not change here because an adverse employment action "does not extend to a mere inconvenience or an alteration of job responsibilities" under this approach. Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 857 (10th Cir.2000) (quotation omitted); accord Wells, 325 F.3d at 1213.

IV.

Ms. Tran also contends that there are genuine issues of material fact which preclude summary judgment as to whether her reassignments in 1997 constituted adverse employment actions, and whether the College's reasons for these reassignments were pretextual. We conclude that the district court did not err in granting summary judgment with respect to these issues. Neither the transfer to Ms. Hanna's supervision, nor the subsequent transfer to Ms. Doyle's supervision, resulted in a loss of employment, compensation, or benefits. Thus, our discussion is limited to Ms. Tran's claims that these actions were "adverse" in other respects.

Ms. Tran asserts that her first reassignment in March or April 1997 was adverse because she was not qualified to work on Ms. Hanna's "web team" and was not provided with sufficient training or adequately structured work assignments. Based on statements attributed to Ms. Hanna and other employees, she also claims that she was not needed on the "web team." Despite these statements, however, Ms. Hanna gave an "above standard" and "commendable" evaluation of Ms. Tran's performance during the period of her supervision. See Aplt.'s App. Vol. III, at 729-30.

Under these circumstances, requiring an employee to develop new skills is not the kind of adversity that can support a prima facie case of retaliation, especially in a rapidly evolving field such as computer programming. See Wells, 325 F.3d at 1213-14 (concluding that an employee's reassignment to a larger and more sophisticated project was not an adverse employment action). The College's delay in integrating Ms. Tran into the "web team" and providing her with more structured training and work assignments also did not create an adverse change in her job responsibilities under these circumstances. See id. at 1215 (concluding that a failure to immediately assign work to an employee who unexpectedly became available was not an adverse employment action).

While Ms. Tran may have subjectively felt that she had no choice but to accept the transfer to Ms. Hanna's supervision, there is no evidence that Ms. Tran communicated this feeling to the College at the time the transfer was proposed. On the contrary, Ms. Tran's communications with other employees during this period could reasonably be understood by the College as expressing her wish to be reassigned to a supervisor other than Mr. Liberatore as well as her approval of the transfer to the "web team," which was regarded as a desirable assignment by other employees. See Aplt.'s App. Vol. II, at 375-78, 412-14; Vol. III, at 730, 788, 1015-16. Ms. Tran's subsequent complaints about Ms. Hanna did not surface until much later, and Ms. Tran was reassigned to work under Ms. Doyle's supervision at that time. See id., Vol. II, at 467. Further, Ms. Tran retracted this belated complaint about Ms. Hanna, see id., Vol. II, at 470, and admitted in her deposition that Ms. Hanna did not retaliate against her, see id., Vol. I, at 302.

In any event, the College articulated a legitimate, non-retaliatory reason for Ms. Tran's initial reassignment to the "web team," namely,...