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

                           FOR THE TENTH CIRCUIT                          May 4, 2015

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
ROCHELLE Y. HARE,

             Plaintiff - Appellant,

v.                                                        No. 14-5138
                                              (D.C. No. 4:13-CV-00508-JED-FHM)
PATRICK R. DONAHOE, Postmaster                            (N.D. Okla.)
General, United States Postal Service,

             Defendant - Appellee.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, LUCERO and MATHESON, Circuit Judges.


      Rochelle Y. Hare, pro se, appeals the district court’s dismissal of her suit

alleging several discrimination claims against her former employer, the United States

Postal Service (Postal Service). We have jurisdiction under 28 U.S.C. § 1291.

We affirm.


*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                   BACKGROUND

      Ms. Hare, who is African-American, worked for many years as a mail

processing clerk at a facility in Tulsa, Oklahoma. During her tenure, she was

disciplined and/or counseled for various infractions, including chronic tardiness,

being absent from her assigned work area while on the clock and failure to follow

protocol for requesting leave. Her employment was terminated in January 2011.

      In 2013, Ms. Hare filed suit against the Postal Service, Patrick R. Donahoe

(the Postmaster General) and several of her former supervisors. The government

moved to dismiss. It contended first that the only proper defendant was

Mr. Donahoe. Second, it argued that the Postal Service was not subject to suit under

the Americans with Disabilities Act (ADA), and to the extent that the complaint

sought relief under the National Labor Relations Act (NLRA), the court lacked

jurisdiction over such claims. Last, it argued that the complaint failed to state

cognizable claims for relief against Mr. Donahoe under either Title VII or the

Rehabilitation Act. The district court granted the government’s motion.

      Ms. Hare concedes that Mr. Donahoe is the only proper defendant. She also

fails to explain any legal error in the district court’s order concerning the ADA and

the NLRA claims. Ms. Hare, however, disagrees with the court’s conclusion that her

complaint fails to state claims under Title VII or the Rehabilitation Act.1


1
       The district court did not read Ms. Hare’s complaint to state a claim for age
discrimination and her opening brief contains nothing more than a handful of
                                                                            (continued)
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                              STANDARD OF REVIEW

      “We review a district court’s dismissal under Federal Rule of Civil Procedure

12(b)(6) de novo. Under Federal Rule of Civil Procedure 8(a)(2), a pleading must

contain ‘a short and plain statement of the claim showing that the pleader is entitled

to relief.’” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (citation

omitted). “[T]o withstand a Rule 12(b)(6) motion to dismiss, a complaint must

contain enough allegations of facts, taken as true, to state a claim that is plausible on

its face.” Id. (internal quotation marks omitted). “[P]lausibility refers to the scope of

the allegations in a complaint: if they are so general that they encompass a wide

swath of conduct, much of it innocent, then [Ms. Hare has] not nudged [her] claims

across the line from conceivable to plausible.” Id. at 1191 (internal quotation marks

omitted). “[I]n examining a complaint under Rule 12(b)(6), we . . . disregard

conclusory statements and look only to whether the remaining, factual allegations

plausibly suggest the defendant is liable.” Id.

      “While the 12(b)(6) standard does not require that [Ms. Hare] establish a

prima facie case in her complaint, the elements of each alleged cause of action help

to determine whether [she] has set forth a plausible claim.” Id. at 1192. As such, we

examine the elements Ms. Hare must prove to establish claims under Title VII and

the Rehabilitation Act.

statements that she is over age forty. These “[s]cattered statements . . . are not
enough to preserve [the] issue for appeal.” Exum v. U.S. Olympic Comm., 389 F.3d
1130, 1133 n.4 (10th Cir. 2004).


                                          -3-
      Because Ms. Hare is a pro se litigant, we liberally construe her complaint, as

well as her appellate briefs. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836,

840 (10th Cir. 2005). But Ms. Hare must “follow the same rules of procedure that

govern other litigants.” Id.

                                      TITLE VII

      Under Title VII it is unlawful “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).

Racial Discrimination

      We liberally construe Ms. Hare’s complaint to attempt to state a claim for

racial discrimination. “A plaintiff proves a violation of Title VII either by direct

evidence of discrimination or by following the burden-shifting framework of

McDonnell Douglas Corp[oration] v. Green, 411 U.S. 792, 93 S.Ct. 1817,

36 L.Ed.2d 668 (1973).” Khalik, 671 F.3d at 1192.

      Because Ms. Hare’s complaint does not allege any direct evidence of

discrimination, her claims are subject to the three-step burden-shifting framework of

McDonnell Douglas. Step one requires Ms. Hare to prove a prima facie case of

discrimination. Id. To do so, Ms. Hare “must establish that (1) she is a member of a

protected class, (2) she suffered an adverse employment action, (3) she qualified for




                                          -4-
the position at issue, and (4) she was treated less favorably than others not in the

protected class.” Id.2

       As the district court explained, and we agree, “[t]he bare allegations and

conclusory statements in [Ms. Hare’s] complaint do not raise any inference of

racial . . . discrimination on the part of her supervisor or anyone at [the Postal

Service].” R. at 129-30. Instead, “[Ms.] Hare’s allegations seem to merely allege

that she was disciplined for rule violations; not that she was discriminated against in

any way.” Id. at 130.

Retaliation

       “Title VII . . . makes it unlawful for an employer to retaliate against an

employee because she has opposed [an unlawful employment practice.]” Khalik,

671 F.3d at 1192 (internal quotation marks omitted). Ms. Hare can prove retaliation

“by relying on the three-part McDonnell Douglas framework.” Id. To establish a

prima facie case, Ms. Hare “must show (1) that she engaged in protected opposition

to discrimination, (2) that a reasonable employee would have found the challenged

action materially adverse, and (3) that a causal connection existed between the

protected activity and the materially adverse action.” See id. at 1193 (brackets and

internal quotation marks omitted).



2
        It is not necessary to discuss steps two and three because Ms. Hare’s claims
fail at step one for the lack of any factual allegations related the actions of the Postal
Service and her race.


                                           -5-
      Once again, we agree with the district court’s conclusion that the allegations in

Ms. Hare’s complaint fail to “raise an inference of retaliation.” R. at 130. There is

not a single factual averment linking her termination or any disciplinary action taken

against her to complaints she filed with the Equal Employment Opportunity

Commission.

Racially Hostile Work Environment

      We liberally construe Ms. Hare’s complaint to attempt to state a claim for a

racially hostile work environment. To prove such a claim, Ms. Hare “must show that

under the totality of the circumstances (1) the harassment was pervasive or severe

enough to alter the terms, conditions, or privilege of employment, and (2) the

harassment was racial or stemmed from racial animus.” Chavez v. New Mexico,

397 F.3d 826, 831-32 (10th Cir. 2005) (internal quotation marks omitted).

“A plaintiff cannot meet this burden by demonstrating a few isolated incidents of

racial enmity or sporadic racial slurs.” Id. at 832 (internal quotation marks omitted).

Instead, “there must be a steady barrage of opprobrious racial comments.” Id.

      Ms. Hare’s complaint is devoid of any allegations of severe or pervasive

harassment or any conduct that was racially motivated. What the complaint alleges is

that a supervisor looked through the window of her car, a co-worker bumped his

equipment into her work cart and an investigator asked her some questions. These

alleged facts do not plausibly show that Ms. Hare was subjected to a racially hostile

work environment.


                                         -6-
                              REHABILITATION ACT

      “The Rehabilitation Act prohibits recipients of federal funding, like [the Postal

Service], from discriminating on the basis of disability. 29 U.S.C. § 794(a).” Hwang

v. Kan. State Univ., 753 F.3d 1159, 1161 (10th Cir. 2014). “One way a disabled

plaintiff can establish a claim for discrimination in the workplace is by showing that

she is qualified for her job; that she can perform the job’s essential functions with a

reasonable accommodation for her disability; and that her employer failed to provide

a reasonable accommodation despite her request for one.” Id.

      In her complaint, Ms. Hare alleges that her supervisor asked her about her

asthma on two occasions, and that she “received a Letter of Warning for failure to

follow proper leave requesting procedures physical disability (asthma).” R. at 8.

Setting aside the fact that there is no evidence that her asthma was a disability, see

42 U.S.C. § 12102(1)(A), which defines a “disability” as a “physical or mental

impairment that substantially limits one or more major life activities,” these

allegations fall short of pleading a plausible claim for relief. We agree with the

district court that “[t]he bare allegations and conclusory statements in [the] complaint

do not raise any inference of . . . disability-based discrimination.” R. at 129.

      The judgment of the district court is affirmed.

                                                Entered for the Court


                                                Mary Beck Briscoe
                                                Chief Judge


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