                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                           April 15, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
MOE AMAN, f/k/a Mohamed Aman,

      Plaintiff - Appellant,

v.                                                    Nos. 14-1461 & 15-1054
                                                   (D.C. No. 1:11-CV-02973-JLK)
DILLON COMPANIES, INC., a Kansas                             (D. Colo.)
corporation, d/b/a King Soopers,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, LUCERO, and McHUGH, Circuit Judges.
                   _________________________________

      Moe Aman filed suit against his former employer, Dillon Companies, Inc.

d/b/a King Soopers (“King Soopers”), advancing numerous discrimination and

retaliation claims. The district court granted King Soopers summary judgment as to

some claims and judgment as a matter of law as to the remainder. Aman appeals.

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

                                           I

      Aman began working as a produce clerk at King Soopers store #5 in 2006.

Jack Ruby was the store manager, Don Gordy was the produce manager, and Chris


      *
         This order and judgment is not binding precedent, except under the doctrines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.
Bateson was the assistant produce manager. On May 7, 2007, Gordy deliberately

slammed a produce cart into Aman, injuring his back. Gordy was terminated because

of the incident. Aman was out of work for several weeks, during which time he

received workers’ compensation benefits.

       After returning from the injury, Aman continued to work in the produce

department subject to medical restrictions. In October 2007, a physician concluded

that Aman had reached maximum medical improvement (“MMI”) and imposed

permanent restrictions. An independent medical examination likewise suggested a

permanent restriction of no lifting greater than thirty pounds.

       In April 2008, King Soopers determined that Aman’s permanent restriction

rendered him unable to continue working as produce clerk. Effective May 11, it

reclassified him to the service desk, a position with a substantially lower rate of pay.

In response, Aman requested a leave of absence, but was informed he was ineligible

for leave because King Soopers had a position he could fill despite his restrictions.

After learning of the reclassification and his ineligibility for leave, Aman reported

that he had been harassed and discriminated against throughout his time working at

the store.

       Aman was scheduled to work at the service desk from May 13 through May

17, 2008. He called in sick for each of those days, but did not speak to any of his

direct supervisors. Aman also called into the store on May 17 to report that he would

be out sick for the entire next week, when he was scheduled to work from May 20 to



                                            2
23. Ruby terminated Aman on May 27 for being absent without leave. Additional

facts relevant to particular issues raised on appeal will be discussed infra.

      Aman filed suit against King Soopers on November 15, 2011, advancing

numerous claims. The district court granted King Soopers’ motion for summary

judgment on several claims. The remaining claims proceeded to trial. At the close of

all evidence, the district court granted judgment as a matter of law in favor of King

Soopers and dismissed the case. Aman timely appealed.

                                            II

      Aman appeals the district court’s grant of summary judgment on his wrongful

discharge in violation of public policy claim. We review the grant of summary

judgment de novo. Hobbs ex rel. Hobbs v. Zenderman, 579 F.3d 1171, 1179 (10th

Cir. 2009). A party is entitled to summary judgment only if, viewing the evidence in

the light most favorable to the non-moving party, the movant is entitled to judgment

as a matter of law. Id.

      Aman claims that King Soopers violated Colorado law by terminating him in

retaliation for exercising his workers’ compensation rights. Although it was not the

basis for the district court’s decision, King Soopers argues that Aman’s claim is time-

barred. A claim for wrongful discharge accrues upon termination and is subject to a

two-year limitations period. See Colo. Rev. Stat. § 13-80-102(1)(a); Williams v.

Crop Prod. Servs., Inc., 361 P.3d 1075, 1077 (Colo. App. 2015), cert. denied, No.

15SC445, 2015 WL 7423588 (Colo. Nov. 23, 2015). Aman was terminated on May

27, 2008. He filed suit on November 15, 2011, more than two years later.

                                            3
      Aman does not substantively respond to the timeliness argument. Instead, he

contends King Soopers waived this affirmative defense by failing to raise it in a

motion for summary judgment. A statute of limitations defense may be waived if it

is not pled. Youren v. Tintic Sch. Dist., 343 F.3d 1296, 1302 (10th Cir. 2003). But

King Soopers pled that Aman’s claims were time-barred in its answer. And the fact

that King Soopers did not rely on the statute of limitations in its motion for summary

judgment is not dispositive. Rather, “[w]e may affirm on any ground adequately

presented to the district court, or on a ground not raised in the district court provided

that the record is sufficiently clear [and] both parties had an adequate opportunity to

develop the record on the issue.” Griffith v. Colo., Div. of Youth Servs., 17 F.3d

1323, 1328 (10th Cir. 1994). Whether to do so is committed to our discretion.

United States v. Damato, 672 F.3d 832, 844 (10th Cir. 2012). We have identified

several factors relevant in considering an alternative ground: “[1] whether the

ground was fully briefed and argued here and below; [2] whether the parties have had

a fair opportunity to develop the factual record; and [3] whether, in light of factual

findings to which we defer or uncontested facts, our decision would involve only

questions of law.” Id. (quotation omitted). Although the timeliness issue was not

briefed below, the other two factors counsel in favor of King Soopers. Accord id.

(absence of first factor not conclusive). We exercise our discretion to affirm the

district court’s grant of summary judgment because Aman’s wrongful discharge

claim was untimely.



                                            4
                                          III

      Aman challenges the district court’s grant of judgment as a matter of law on

four claims: (1) hostile work environment; (2) termination on the basis of race; (3)

Americans with Disabilities Act (“ADA”) retaliation; and (4) Title VII retaliation.

We review a district court’s grant of judgment as a matter of law de novo. Murphy

Oil USA, Inc. v. Wood, 438 F.3d 1008, 1012 (10th Cir. 2006). Judgment as a matter

of law is granted “only if all of the evidence, viewed in the light most favorable to

the nonmoving party, reveals no legally sufficient evidentiary basis to find for the

nonmoving party.” Jones v. United Parcel Serv., Inc., 674 F.3d 1187, 1195 (10th Cir.

2012) (quotation omitted).

                                           A

      Aman claims he suffered a hostile work environment due to his race. To

succeed on a hostile work environment claim, a plaintiff must show that “the

workplace is permeated with discriminatory intimidation, ridicule, and insult, that is

sufficiently severe or pervasive to alter the conditions of the victim’s employment

and create an abusive working environment.” Morris v. City of Colo. Springs, 666

F.3d 654, 664 (10th Cir. 2012) (quotation omitted). We examine the “totality of the

circumstances, and consider such factors as the frequency of the discriminatory

conduct; its severity; whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes with an employee’s work

performance.” Id. (quotation and alteration omitted).



                                           5
      Aman brings hostile work environment claims under both Title VII and 42

U.S.C. § 1981. Under Title VII, an employee must file a charge with the Equal

Employment Opportunity Commission (“EEOC”) within 300 days of the

discriminatory conduct. 42 U.S.C. § 2000e-5(e)(1).1 And he must file a civil

complaint under § 1981 within four years of the alleged conduct. 28 U.S.C. § 1658;

Tademy v. Union Pac. Corp., 614 F.3d 1132, 1152 (10th Cir. 2008). The parties

agree that Aman filed his EEOC charge on March 13, 2009, and thus he may

challenge conduct occurring on or after May 17, 2008, under Title VII. And he filed

his federal complaint on November 15, 2011, and thus he may challenge conduct

occurring on or after November 15, 2007, under § 1981.2

      Under certain circumstances, hostile work environment claims may rely in part

on conduct that occurred outside the limitations period. “[A]s long as an act

contributing to a hostile work environment took place” within the limitations period,

“a court may consider the complete history of acts comprising that hostile work

environment.” Duncan v. Manager, Dep’t of Safety, 397 F.3d 1300, 1308 (10th Cir.

2005) (quotation omitted). But to consider pre-limitations period conduct, those acts


      1
         The parties agree that Aman filed a complaint with a state agency as required
to trigger the 300-day limitations period under 42 U.S.C. § 2000e-5(e).
      2
        Aman argues that King Soopers waived any timeliness argument as to the
hostile work environment claim because it failed to cross appeal the district court’s
summary judgment ruling indicating that the claim was timely. But King Soopers
obtained judgment in its favor on Aman’s hostile work environment claims, and
“seeks no relief which was not granted it in the court below and properly may raise
any issue which was there considered even though it asserts that the court was in
error.” Emerson v. Labor Inv. Corp., 284 F.2d 946, 949 (10th Cir. 1960).
                                           6
must comprise “part of the same actionable hostile work environment practice” that

continued into the limitations period. Id. (quotation omitted). “[A] series of alleged

events comprises the same hostile environment where the pre- and post-limitations

period incidents involved the same type of employment actions, occurred relatively

frequently, and were perpetrated by the same managers.” Id. at 1309 (quotation and

alteration omitted).

      Aman cites to three instances in which racial slurs were used against him. He

testified that Gordy called him an “African monkey” and an “African lion,” and that

Bateson called him a “lazy African.” He also asserts that one of his co-workers heard

Gordy state that he did not like black people. Aman also relies heavily on the Gordy

assault. All of these incidents occurred before November 15, 2007, and thus fall

outside of the limitations periods.

      Aman further cites to a litany of facially neutral conduct that occurred after he

returned to work following his injury—some of which occurred within the limitations

periods. “[F]acially neutral abusive conduct can support a finding of racial animus

sufficient to sustain a hostile work environment claim when that conduct is viewed in

the context of other, overtly racially-discriminatory conduct.” Hernandez v. Valley

View Hosp. Ass’n, 684 F.3d 950, 960 (10th Cir. 2012) (quotation and alterations

omitted). Such conduct may support a hostile work environment claim if “a jury,

viewing the evidence in context, reasonably could view all of the allegedly harassing

conduct as the product of racial hostility.” Id. (quotation and alterations omitted).



                                           7
      But Aman fails to provide evidence from which a reasonable juror could

conclude that the facially neutral events which occurred within the limitations period

were part of “the same actionable hostile work environment practice” that he claims

began prior to his injury. Duncan, 397 F.3d at 1308 (quotation omitted). Several of

the incidents Aman cites are wholly unrelated to his pre-limitations period work

environment. For example, many relate to claimed procedural irregularities that

occurred in connection with his termination. And several alleged actions happened

after Aman had been terminated and thus could not have contributed to a hostile work

environment. See Hirase-Doi v. U.S. W. Commc’ns, Inc., 61 F.3d 777, 782 (10th

Cir. 1995), superseded on other grounds by Faragher v. City of Boca Raton, 524 U.S.

775 (1998) (a plaintiff “may only rely on evidence relating to harassment of which

she was aware during the time that she was allegedly subject to a hostile work

environment”).

      Similarly unfounded is Aman’s argument that his reclassification to the service

desk contributed to a hostile work environment. The same is true as to his claims

regarding management’s doubts about the severity of his pain and employees’

mockery of his injury. These allegations did not involve the same type of

employment actions as the pre-limitations period racial comments or Gordy assault.

Nor—with one exception discussed infra—did they involve the same employees as

the pre-limitations period conduct. And his reclassification occurred approximately

one year after the more serious incident involving Gordy. Thus, his reclassification

does not satisfy any of the relevant factors. See Duncan, 397 F.3d at 1309.

                                          8
         The only connection between pre- and post-limitations period conduct we can

discern is that Bateson allegedly refused to shake Aman’s hand on his first day of

work at store #5 and called Aman a “lazy African” on a single occasion outside the

limitations period, and was one of the employees who doubted the severity of

Aman’s pain within the limitations period. Even assuming that Bateson’s single

racial comment and handshake slight should be included in the analysis, we conclude

that the isolated Bateson incidents are not sufficient for a jury to find Aman was

subject to a hostile work environment. Bolden v. PRC Inc., 43 F.3d 545, 551 (10th

Cir. 1994) (“Instead of sporadic racial slurs, there must be a steady barrage of

opprobrious racial comments” to support a hostile work environment). Regardless,

this single incident of harassment occurring within the limitations period is

insufficient to tie the claim back to prior harassment by the same employee. See

Holmes v. Utah, Dep’t of Workforce Servs., 483 F.3d 1057, 1063-64 (10th Cir.

2007).

         Focusing on the potentially timely actions, the vast majority of Aman’s

proffered evidence does not suggest racial discrimination generally, nor that his

reassignment and termination were motivated by race. Bolden, 43 F.3d at 551

(“General harassment if not racial or sexual is not actionable.”). He likewise fails to

demonstrate that his co-workers’ doubts about the severity of his injury were racially-

driven, or that they were severe or pervasive. Because Aman has not demonstrated a

workplace sufficiently “permeated with [racially] discriminatory intimidation,



                                            9
ridicule, and insult,” Morris, 666 F.3d at 664 (quotation omitted), we affirm the

district court’s dismissal of Aman’s hostile work environment claim.

                                             B

       We consider Aman’s claim of termination on the basis of race under the

burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802-06 (1973). Under this framework, Aman carries the initial burden of

establishing a prima facie case of discrimination. EEOC v. PVNF, L.L.C., 487 F.3d

790, 800 (10th Cir. 2007). The burden then shifts to King Soopers to provide a

legitimate non-discriminatory reason for its decision to terminate him. Id. If it does

so, the burden shifts back to Aman to show that King Soopers’ stated reason is

pretextual. Id. The parties agree that Aman satisfied his prima facie obligation, and

King Soopers responded that it legitimately fired him for being absent without leave.

Thus, the parties’ sole dispute on this claim is whether Aman advanced sufficient

evidence of pretext.3

       A plaintiff may establish pretext by showing “such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s

       3
         Aman briefly argues that he was not given an opportunity to respond to the
district court’s reliance on employee testimony suggesting that King Soopers does
not permit racial discrimination. See Fed. R. Civ. P. 50(a)(1) (providing that a court
may enter judgment as a matter of law “[i]f a party has been fully heard on an issue
during a jury trial and the court finds that a reasonable jury would not have a legally
sufficient evidentiary basis to find for the party on that issue”). In its oral ruling, the
district court references King Soopers’ stance on discrimination. But we do not read
the court’s decision as relying on this testimony. Instead, the court held that Aman
had not provided sufficient evidence to demonstrate that race was a factor in his
termination—an issue that was fully litigated.

                                            10
proffered legitimate reasons for its action that a reasonable factfinder could rationally

find them unworthy of credence and hence infer that the employer did not act for the

asserted non-discriminatory reasons.” Jones v. Okla. City Pub. Sch., 617 F.3d 1273,

1280 (10th Cir. 2010) (quotation omitted).

      Aman suggests pretext because he adhered to King Soopers’ sick policy by

calling in sick for five consecutive scheduled shifts from May 13 to 17, 2008; and

again for the entire week of May 20 to 23 after a night crew foreman told him he did

not need to call every day. Because the absences were excused, he contends that they

could not support termination. But Aman conflates King Soopers’ call-in procedure

with its process for excusing absences. The evidence shows that although any

member of management can accept a sick call, only the store manager, or in his

absence, the assistant store manager, may excuse an absence. Aman did not contact

his direct supervisor, the store manager, or the assistant store manager between May

11 and June 2, 2008. Thus, evidence that Aman spoke to appropriate individuals

when calling in does not undermine King Soopers’ position that Aman was

terminated for unexcused absences.

      Similarly, Aman argues that he was entitled to take leave for the time he was

absent and notes that Ruby was aware he was planning to see a doctor. But King

Soopers’ policy requires an employee to submit a written request for leave in excess

of five days. And, absent exceptional circumstances, the request must be approved

before the leave begins. Aman admitted that he was aware of these policies and

knew he had not been approved for leave.

                                           11
      Aman also identifies inconsistencies in King Soopers’ stated justifications for

his termination. He notes that on two occasions King Soopers mis-identified the

dates Aman did not call in sick, and suggests management wavered between stating

he was fired for “excessive absenteeism” and stating he “quit without notice.” But

neither of these observations undermines King Soopers’ consistent assertion that

Aman was terminated because he did not come to work between May 11 and the date

he was fired. In particular, the terms “excessive absenteeism” and “quit without

notice” are related—an employee explained that numerous consecutive unexcused

absences would be described as having quit without notice. The descriptive

variations are thus “simply too minor to give rise to an inference of pretext.” Hardy

v. S.F. Phosphates Ltd., 185 F.3d 1076, 1081 (10th Cir. 1999).

      Finally, Aman argues that Ruby should have retroactively excused his

absences when Aman submitted a note from his doctor on June 2, 2008. He contends

that rejection of this note demonstrates pretext because Ruby testified both that he

did not expect Aman to bring in a note before June 2, and that Aman should have

brought the note in sooner. He also contends that Ruby did not provide any reason

for declining to excuse Aman’s absences. However, Aman ignores the portions of

Ruby’s testimony in which Ruby stated that Aman should have contacted him or the

assistant store manager sooner regardless of when Aman brought the doctor’s note in.

We do not discern any inconsistency in Ruby’s testimony on this point. And, as

noted supra, Ruby provided a legitimate reason for the termination: Aman did not

comply with the policy requiring prior approval for leave of more than five days.

                                          12
      Considering all of this evidence together, we agree with the district court that

Aman did not provide a legally sufficient evidentiary basis to conclude that King

Soopers’ stated reason for firing him was pretextual.4

                                          C

      Aman claims both ADA and race-based retaliation. If an employee cannot

provide direct evidence of retaliatory motive, he may rely on the McDonnell Douglas

burden-shifting framework described supra. See Twigg v. Hawker Beechcraft Corp.,

659 F.3d 987, 998 (10th Cir. 2011). Under the first step in this framework, the

employee must make out a prima facie case of retaliation by showing: “(1) she

engaged in protected [conduct], (2) a reasonable employee would have considered the

challenged employment action materially adverse, and (3) a causal connection

existed between the protected activity and the materially adverse action.” Daniels v.

United Parcel Serv., Inc., 701 F.3d 620, 638 (10th Cir. 2012) (quotation omitted); see

also Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1999).5


      4
        Aman further claims that Ruby and Stephanie Bouknight offered different
accounts of the termination decision. In support of this argument he cites to evidence
from the summary judgment record. We cannot consider this evidence in our
analysis. See McEuin v. Crown Equip. Corp., 328 F.3d 1028, 1037 (9th Cir. 2003)
(“Evidence not admitted at trial cannot be used in a review of the district court’s
[ruling on a motion for] judgment as a matter of law.”).
      5
         For a Title VII or § 1981 retaliation claim, a plaintiff must prove that the
desire to retaliate was the but-for cause of the challenged employment action. Univ.
of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013); Davis v. Unified Sch.
Dist. 500, 750 F.3d 1168, 1170 (10th Cir. 2014) (stating that the “standards are the
same” for Title VII and § 1981 claims). It not clear whether an ADA retaliation
claim requires “but for” or “motivating factor” causation. See Doe v. Bd. of Cty.
Comm’rs, 613 F. App’x 743, 747 n.3 (10th Cir. 2015) (unpublished) (noting that
                                          13
      Aman asserts that he participated in protected conduct by complaining of

discrimination. Specifically, when he was informed in early May 2008 that he was

ineligible for leave because King Soopers had a position available for him, Aman

complained both of previous racial harassment and argued that he was entitled to

leave due to his injury, which resulted from his co-worker’s assault. But Aman did

not provide evidence from which a jury could find causation. Aman asserts that a

jury could infer causation based on the temporal proximity between his complaints

and his termination. We have held that temporal proximity of approximately one

month can be sufficient to establish causation. See Trujillo v. PacifiCorp, 524 F.3d

1149, 1157 n.5 (10th Cir. 2008). And the district court accepted the temporal

proximity as sufficiently probative to demonstrate a prima facie case on these two

claims at the summary judgment stage.

      But we have repeatedly “recognized that evidence of temporal proximity has

minimal probative value in a retaliation case where intervening events between the

employee’s protected conduct and the challenged employment action provide a

legitimate basis for the employer’s action.” Twigg, 659 F.3d at 1001-02; Maestas v.

Segura, 416 F.3d 1182, 1189 (10th Cir. 2005) (“[E]vidence of intervening events

tend[s] to undermine any inference of retaliatory motive and weaken the causal link.”

(citation omitted)). As discussed supra, after asserting his complaints Aman missed
____________________________
several courts have applied the “but for” causation standard in assessing ADA
claims); Wesley-Dickson v. Warwick Valley Cent. Sch. Dist., 586 F. App’x 739, 745
n.3 (2d Cir. 2014) (unpublished) (noting that the “but-for standard might apply to . . .
ADA retaliation claim[s]”). Because we conclude that Aman cannot prevail even
under the lower motivating factor standard, we will assume it applies.
                                           14
numerous days of work without contacting the individuals authorized to excuse his

absences. And he offers no other basis on which to infer that his termination was

retaliation for his complaints. We thus conclude he fails to make out a prima facie

case that he was terminated in retaliation for his complaints regarding his disability

and race.6 Under these circumstances, his retaliation claims fail.7

                                           IV

      Aman also appeals the district court’s decision to exclude evidence related to

treatment of allegedly similarly situated employees. “We review evidentiary rulings

for an abuse of discretion, and pay deference to the trial court’s familiarity with the

case and experience in evidentiary matters.” Elm Ridge Expl. Co. v. Engle, 721 F.3d

1199, 1213 (10th Cir. 2013) (quotation omitted). “We reverse only if the district

court’s conclusion is arbitrary, capricious, whimsical or manifestly unreasonable or

when we are convinced that the district court made a clear error of judgment or

exceeded the bounds of permissible choice in the circumstances.” Id. (quotation

omitted). To establish the relevance of the excluded evidence, Aman was required to

show that he was similarly situated to the comparable employees. McGowan v. City

of Eufala, 472 F.3d 736, 745 (10th Cir. 2006). Comparator employees must have

      6
        We conclude that Aman has not made out a prima facie case, and so do not
reach his argument regarding the pretext step in the McDonnell Douglas framework.
We note, however, that we have already concluded supra that Aman did not submit
evidence sufficient to conclude that King Soopers’ legitimate reason for his
termination was pretext.
      7
        Because we affirm the district court’s dismissal of Aman’s claims, we need
not consider his arguments regarding the availability of punitive damages. See
Stewart v. Adolph Coors Co., 217 F.3d 1285, 1289 n.2 (10th Cir. 2000).
                                           15
engaged in “conduct of comparable seriousness in order for their disparate treatment

to be relevant.” Id. (quotation omitted).

        Aman proffered evidence regarding three other employees who were

disciplined but not terminated for excessive absenteeism. It was within the district

court’s discretion to conclude that none of these employees’ misconduct was

comparable to Aman’s. Although the comparator employees were disciplined for

calling in sick too frequently over the course of their employment, none of the

employees were absent for a consecutive span of days approaching the bloc Aman

missed.

                                            V

        Finally, Aman challenges the district court order requiring that he post an

appeal bond. King Soopers did not move to enforce the bond, and thus argues the

issue is moot. An issue is moot unless “granting a present determination of the issues

offered will have some effect in the real world.” See Rio Grande Silvery Minnow v.

Bureau of Reclamation, 601 F.3d 1096, 1110 (10th Cir. 2010) (quotation and

emphasis omitted). We agree that the issue is now moot because the appeal has been

decided without Aman posting the bond, and a decision from this court would have

no practical effect. Because mootness is a jurisdictional issue, see id. at 1109, we

dismiss Aman’s appeal of the bond order, which was assigned docket number 15-

1054.




                                            16
                                     VI

     We AFFIRM the judgment of the district court. Aman’s appeal as to the bond

order is DISMISSED.


                                       Entered for the Court


                                       Carlos F. Lucero
                                       Circuit Judge




                                     17
