                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                         DEC 9 2004
                                  TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 MARY J.C. GARCIA,

           Plaintiff-Appellant,
 v.                                                     No. 03-2302
 DONALD RUMSFELD, Secretary,                  (D.C. No. CIV-02-525 JB/RLP)
 Department of Defense,                              (D. New Mexico)

           Defendant-Appellee,

 and

 JAMES G. ROCHE, Secretary,
 Department of Air Force,

           Defendant.




                              ORDER AND JUDGMENT        *




Before BRISCOE , HARTZ , and McCONNELL , Circuit Judges.


       Mary J.C. Garcia filed suit against her employer, the Department of

Defense (DOD), alleging employment discrimination on the basis of age, gender,



       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
and national origin, and retaliation under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-16, and the Age Discrimination in Employment Act

(ADEA), 29 U.S.C. § 623(a)(1). The district court granted summary judgment in

favor of the DOD on all claims. Garcia appeals, contending the court erred in

concluding an investigation is not an adverse action, that Garcia had not produced

evidence of a causal connection between her protected activity and the adverse

action taken against her, and that she had not produced sufficient evidence to

create an issue of material fact regarding the DOD’s motives for the adverse

actions taken against her. We affirm.

        We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court. Simms v. Okla. ex

rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th

Cir. 1999). Summary judgment should be granted “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

In applying this standard, we view the evidence and draw reasonable inferences

therefrom in the light most favorable to the nonmoving party. Simms, 165 F.3d at

1326.

        The parties are familiar with the factual background of this case. We will


                                          2
only refer to those facts necessary to address the specific issues raised.

      Garcia frames her appeal as challenging the district court’s order to grant

summary judgment in its entirety; however, she fails to develop arguments as to

the vast majority of allegations of discrimination and retaliation advanced in her

complaint and addressed by the district court in its summary judgment order. She

mentions many of these allegations briefly, but fails to present any argument or

evidence showing how the court erred in granting summary judgment related to

these facts/incidents. Failure to raise an issue in the opening appellate brief

waives that issue. State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7

(10th Cir. 1994). Similarly, the court will not consider an issue raised on appeal

but not adequately addressed. Wilburn v. Mid-South Health Dev., Inc., 343 F.3d

1274, 1281 (10th Cir. 2003). An issue is waived if the party merely lists it as

being raised on appeal, but fails to present argument in support of the issue.

Abercrombie v. City of Catoosa, Okla., 896 F.2d 1228, 1231 (10th Cir. 1990).

                         Removal from supervisory position

      Garcia contends she was removed from her supervisory position for

impermissible reasons, including discrimination based upon age, national origin,

and gender, and in retaliation for complaining about discriminatory behavior. As

stated by the district court, this claim fails because the DOD has articulated

legitimate non-discriminatory/non-retaliatory reasons for its actions, which Garcia


                                           3
failed to show were pretextual. “If the employer provides a legitimate, non-

discriminatory justification for the action, the burden shifts back to the employee

to provide evidence showing that the employer’s proffered reason is a pretext for

discrimination.” Stover v. Martinez, 382 F.3d 1064, 1071 (10th Cir. 2004). An

employee can demonstrate that the non-discriminatory/non-retaliatory reason is

mere “pretext by showing the employer’s proffered reason was so inconsistent,

implausible, incoherent, or contradictory that it is unworthy of belief.” Id.

      The DOD set forth non-discriminatory/non-retaliatory reasons for Garcia’s

removal as stockpile chief, which Garcia failed to controvert. 1 Colonel Prewitt

and Garcia had discussed merging the stockpile control division with the nuclear

inventory control point division. Both believed that consolidation would result in

better use of computer specialist support staff and would help prepare for

anticipated downsizing resulting from early retirement incentives. Garcia

recommended that a military member serve as division chief, allowing Garcia to

concentrate her efforts on other projects. The divisions were consolidated in


      1
        District of New Mexico Local Rule 56.1(b) provides:
             A memorandum in opposition to the motion must contain a concise
      statement of the material facts as to which the party contends a genuine
      issue does exist. Each fact in dispute must be numbered, must refer with
      particularity to those portions of the record upon which the opposing party
      relies, and must state the number of the movant’s fact that is disputed. All
      material facts set forth in the statement of the movant will be deemed
      admitted unless specifically controverted.


                                          4
August 1997 and Commander Brenner was appointed chief of the combined

divisions. Colonel Prewitt removed Garcia’s supervisory responsibilities based in

part on the results of the Crandley investigation and because he had received

numerous complaints from employees who were unhappy with Garcia’s leadership

style. Garcia did not dispute these facts and the district court, pursuant to Rule

56.1(b), deemed them admitted.

      Garcia nevertheless asserts on appeal that the temporal proximity between

the removal of her supervisory responsibilities and her complaint that the

Crandley investigation was discriminatory, when combined with Prewitt’s

departure from DOD policy guidelines in relying on the Crandley investigation to

remove her supervisory responsibilities, demonstrate a retaliatory motive. She

argues these facts are sufficient to show the DOD’s non-retaliatory reasons were

mere pretext.

      Garcia contends her complaint about the Crandley investigation, followed

four months later by her removal from her supervisory position, was close enough

in time to demonstrate retaliatory motive. 2 Standing alone, a four-month gap is

too great to establish a causal connection between the protected activity and the


      2
        Garcia notes only that she complained sometime after April 4, 1997, that
the Crandley investigation was discriminatory and she was removed from her
supervisory role in August 1997. She does not dispute the DOD’s
characterization of the gap as being four months between her complaint and her
removal.

                                          5
alleged retaliatory action. Further, the closeness in time between the protected

activity and the alleged retaliatory action does not address whether the DOD’s

reasons for its actions were merely pretext. See Richmond v. ONEOK, Inc., 120

F.3d 205, 209 (10th Cir. 1997) (finding a three-month period between the

protected activity and termination, standing alone, did not establish a causal

connection which would support a retaliation claim under the Fair Labor

Standards Act). As for her argument that reliance on the Crandley investigation

shows the DOD’s reasons are mere pretext, it is not a logical or reasonable

inference that the DOD’s reliance on Crandley’s report established retaliation.

Reliance on Crandley’s report, even if in violation of DOD regulations, only

bolsters the DOD’s assertion that its motive for removing Garcia from her

supervisory role was not retaliatory. The report suggested that Garcia should be

removed from her supervisory role based upon her overtime abuse, a non-

retaliatory reason advanced by the DOD. To avoid summary judgment, Garcia

was required “to provide evidence showing that the employer’s proffered reason

is a pretext for discrimination.” Stover, 382 F.3d at 1071. Garcia failed to

provide evidence that showed the DOD’s proffered reasons were pretextual and

she conceded facts that showed these reasons were not pretextual.

                                   Investigations

      Garcia argues the investigations regarding her actions constituted adverse


                                          6
employment action. Even assuming, arguendo, these investigations constituted

adverse employment actions, Garcia fails to show the DOD’s non-

discriminatory/non-retaliatory reasons for conducting the investigations were

mere pretext. In fact, Garcia contends “the Court should not consider what

reasons the Defendant/Appellee may have had for investigating Ms. Garcia, only

that Ms. Garcia was investigated.” Reply Br. at 2. This viewpoint ignores the

pivotal issue in this case. If the DOD’s reasons for conducting these

investigations were non-discriminatory and non-retaliatory, the investigations

cannot serve as a basis for either a Title VII or an ADEA violation.

      The DOD provided non-discriminatory/non-retaliatory reasons for

conducting the investigations. In March 1997, the DOD inspector general

received a call from an individual accusing Garcia and two other employees of

engaging in time and attendance fraud. The chief of staff directed Colonel

Crandley to investigate the allegations. Crandley found evidence to substantiate

some of the allegations against Garcia and concluded Garcia was paid for 32

hours of overtime for hours not worked. Crandley also recommended that an

inquiry be conducted to determine whether Garcia retaliated against other

employees for providing him with information related to the investigation. In

July 1997, Crandley met with Colonel Prewitt to discuss the results of his

investigation. In August 1997, Crandley informed Prewitt that, pursuant to DOD


                                         7
regulations, his investigative report could not be used to discipline Garcia.

Prewitt then conducted his own investigation and reached the same conclusion

regarding Garcia’s conduct. In September 1997, Captain Sedivy asked

Lieutenant-Colonel Wrinkle to assess the validity of allegations that Garcia, as

well as two other employees, retaliated against or threatened to retaliate against

employees for providing information to Crandley. Wrinkle concluded that Garcia

and two other employees had engaged in retaliatory activities. Sedivy believed an

independent and more thorough investigation was needed and he authorized

Colonel Johnson to investigate. Johnson’s investigation began in late November

1997 and concluded in early January 1998 after Garcia’s retirement.

      In her response to the DOD motion for summary judgment, Garcia objected

to the statement that Sedivy’s decision to authorize the investigations by Wrinkle

and Johnson had nothing to do with her race, gender, age, national origin, or prior

EEO activities and that no actions were taken against Garcia based on Wrinkle’s

findings. 3 However, as noted by the district court, Garcia failed to present any

evidence controverting the DOD’s explanations for these investigations, nor did

Garcia specifically controvert any other facts regarding these investigations. As

for the investigations authorized by Sedivy, Garcia did not controvert the non-



      3
        The district court indicated that Garcia failed to controvert these facts in
accordance with Rule 56.1(b).

                                          8
discriminatory/non-retaliatory reason asserted by DOD, i.e., that Sedivy

authorized Wrinkle to investigate Garcia to determine the validity of allegations

that she retaliated against other employees for cooperating with Crandley.

Wrinkle’s findings showed that Garcia did retaliate against other employees.

Sedivy authorized a follow-up investigation by Johnson to verify the accuracy of

Wrinkle’s findings. This evidence tends to show that the DOD took action

against Garcia because of her improper actions toward other employees.

Accordingly, Garcia fails to offer any evidentiary basis for concluding the DOD’s

non-discriminatory/non-retaliatory reasons were mere pretext.

                 Denial of VSIP (retirement incentive) application

      Garcia insists in her reply brief that, contrary to the DOD’s contention, she

has not abandoned her claims related to the denial of her VSIP application. 4

Assuming, arguendo, that this claim has not been waived, Garcia fails to show

that the VSIP committee’s non-discriminatory/non-retaliatory reason for denying

her application was mere pretext. The DOD stated that Garcia’s application was

denied because the DOD determined it was inappropriate to offer a retirement

inducement incentive to an employee who was likely to be terminated for

improperly retaliating against other employees. To avoid summary judgment,



      4
         The VSIP is a DOD program that pays a bonus to employees to encourage
early retirement.

                                         9
Garcia needed to present evidence showing this reason was mere pretext. Stover,

382 F.3d at 1071.

      AFFIRMED.

                                            Entered for the Court

                                            Mary Beck Briscoe
                                            Circuit Judge




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