                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 20 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ROGATIEN HOUNTON,

                Plaintiff-Appellant,

    v.                                                   No. 04-2017
                                              (D.C. No. CIV-02-1427-RLP/LAM)
    GALLUP INDEPENDENT                                    (D. N.M.)
    COMPANY,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before ANDERSON and BALDOCK , Circuit Judges, and             MARTEN , ** District
Judge.



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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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      This order and judgment is not binding precedent, except under the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. 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.
**
      The Honorable J. Thomas Marten, District Judge, United States District
Court for the District of Kansas, sitting by designation.
      Rogatien Hounton sued his former employer, The Gallup Independent Co.,

for racial and national origin discrimination and retaliation under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e through § 2000e-17, and for

intentional infliction of emotional distress under New Mexico state law. The

district court granted summary judgment to Gallup Independent on all claims.

Mr. Hounton appeals, arguing that the district court erred in granting summary

judgment because (1) he was subjected to a hostile work environment; (2) he was

retaliated against; and (3) he was subjected to intentional infliction of emotional

distress. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I. BACKGROUND

      Mr. Hounton is from Benin, Africa; his first language is French. He

worked as a pressman for Gallup Independent, which publishes a newspaper. The

other pressmen were Native Americans. Initially, Mr. Hounton got along well

with the other pressmen, and they were teaching each other their first languages.

      In October 2001, Mr. Hounton injured his back, precluding heavier lifting.

The other pressmen therefore had to assume all the heavier work in order to get

the newspaper published. Nonetheless, Mr. Hounton continued to work part time

at an automobile service department changing tires and oil.

      After he hurt his back, Mr. Hounton alleged that the pressmen made

comments concerning his race and national origin. On various occasions, one or


                                         -2-
more of the pressmen referred to the song “Coming to America;” stated

Mr. Hounton was black because he did not shower and he stinks; commented he

was from Africa; referred to him as a baby, a homosexual and a “jungle bunny;”

mocked his English; and stated he did not brush his teeth. On one occasion,

Mr. Hounton disclosed to his supervisor, Mark Vincent, what was happening to

him in the pressroom.   See Aplt. App. at 135. Although Mr. Hounton did not

know if Mr. Vincent spoke to the other pressmen,     id. , Mr. Vincent did tell the

pressmen that remarks, such as “jungle bunny,” were intolerable,     see id. at 76,

126.

       On January 12, 2002, one of the pressmen, Ron Livingston, was in charge

of the pressroom because Mr. Vincent was absent. According to Mr. Hounton,

Mr. Livingston and another pressman came to work drunk and began harassing

him. Mr. Livingston directed Mr. Hounton to clock-out and go home. When

Mr. Hounton refused, Mr. Livingston proceeded to the time clock, where a fight

ensued. 1 Various co-workers stopped the fight. John Sherman, the mailroom

supervisor, saw Mr. Livingston chasing Mr. Hounton. Mr. Sherman sent

Mr. Hounton home.




1
      Mr. Livingston claims that Mr. Hounton hit him; Mr. Hounton claims that
Mr. Livingston attacked him. Mr. Livingston had an abrasion on his nose, and
Mr. Hounton had an abrasion on his hand.

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       Mr. Livingston and the other pressmen reported the fight to Bob Zollinger,

Gallup Independent’s vice president and publisher, the next morning.

Mr. Hounton came to work that next day, but left immediately when the other

pressmen threatened to “show you we are Native American” and told him to leave

if he did not want to get hurt again.   Id. at 142. Mr. Hounton proceeded to the

police station to file a report. Officer Gallegos took the report and then went with

Mr. Hounton to the Gallup Independent. Upon seeing Mr. Hounton, Mr. Zollinger

began yelling, terminated Mr. Hounton’s employment, called Mr. Hounton a “lazy

ass,” accused him of starting two fights, and directed Officer Gallegos to remove

Mr. Hounton from the premises without permitting an investigation.     Id. at 57.

       The district court granted Gallup Independent’s motion for summary

judgment. The court concluded that (1) there was no hostile work environment

based on race or national origin because the conduct at issue was not so severe or

pervasive that the terms and conditions of Mr. Hounton’s employment were

affected; (2) Mr. Hounton could not establish a prima facie case of retaliation;

and (3) as a matter of law, Mr. Hounton could not show intentional infliction of

emotional distress.

II. DISCUSSION

             Summary judgment is appropriate 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

                                           -4-
       matter of law. We review a grant of summary judgment     de novo ,
       applying the same standard as the district court. We examine the
       record to determine whether any genuine issue of material fact was in
       dispute; if not, we determine whether the substantive law was applied
       correctly, and in so doing we examine the factual record and
       reasonable inferences therefrom in the light most favorable to the
       party opposing the motion.

Sealock v. Colorado , 218 F.3d 1205, 1209 (10th Cir. 2000) (quotation omitted).

       A. HOSTILE WORK ENVIRONMENT

       Mr. Hounton argues that his work environment was hostile because he was

subjected to racial comments, which ultimately resulted in the assaults leading to

his employment termination. He contends the district court improperly dismissed

his co-worker’s comments as teasing and horseplay, thereby downplaying their

severity; failed to consider that Mr. Vincent suggested to the other pressmen that

Mr. Hounton was slow because he was from Africa and spoke French as his first

language; and should have recognized that Mr. Zollinger’s “lazy ass” comment

was racially motivated due to the hostile atmosphere at The Gallup Independent.

       Title VII prohibits an employer’s discrimination “against any individual

with respect to his compensation, terms, conditions, or privileges of employment,

because of such individual’s race . . . or national origin.” 42 U.S.C.

§ 2000e-2(a)(1). “Title VII affords employees the right to work in an

environment free from discriminatory intimidation, ridicule, and insult.”   Meritor

Sav. Bank, FSB v. Vinson , 477 U.S. 57, 65 (1986). Only severe or pervasive


                                            -5-
workplace conduct that affects the terms, conditions, or privileges of employment

are protected by Title VII, however.    See id. at 67. Mr. Hounton therefore

survives summary judgment by showing “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 based on national origin.   Trujillo v. Univ. of Colo. Health Sciences Ctr.   ,

157 F.3d 1211, 1214 (10th Cir. 1998) (quotation omitted).

       Viewing the evidence in the light most favorable to Mr. Hounton, we

conclude a reasonable jury could not find that he made a showing of pervasive or

severe harassment based on race or national origin. The record fails to support

Mr. Hounton’s assertion that his co-workers subjected him to repeated verbal and

physical attacks. Most of the comments listed above did not refer to

Mr. Hounton’s race or national origin. “[M]ere utterance of an . . . epithet which

engenders offensive feelings in an employee, does not sufficiently affect the

conditions of employment to implicate Title VII.”      Harris v. Forklift Sys., Inc. ,

510 U.S. 17, 21 (1993) (quotation and citation omitted);     see also Trujillo , 157

F.3d at 1214 (requiring more than a few, isolated incidents of racial enmity to

survive summary judgment);     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.”). Mr. Vincent took action immediately after


                                           -6-
learning of the “jungle bunny” comment. To the extent the other pressmen

mocked Mr. Hounton’s English, they, too, spoke in broken English. As the

district court noted, the comments and actions of the pressmen were consistent

with the atmosphere of horseplay in the pressroom.

       There is no evidence that the entire environment at the newspaper was

racially hostile. And the record does not support Mr. Hounton’s unsupported

assertion that Mr. Vincent used Mr. Hounton’s national origin to motivate and

encourage the other pressmen to taunt and harass him. If anything, the record

indicated that Mr. Vincent expected the other pressmen to be kind and patient

with Mr. Hounton.     See Aplt. App. at 128.

       We agree with the district court that what the record does show is that Mr.

Hounton’s co-workers became frustrated with him after he injured his back; did

not perform his share of the work at Gallup Independent, but continued to do

heavier lifting at his part-time job; and watched them working and laughed at

them. Even Mr. Hounton admits his co-workers complained that he was too slow

in performing his duties.    See id. at 133. This type of personality conflict is not

appropriate for Title VII relief.   Cf. Trujillo , 157 F.3d at 1214 (recognizing that

employee personality conflicts are not business of federal courts);    Aramburu v.

Boeing Co. , 112 F.3d 1398, 1410 (10th Cir. 1997) (recognizing that general




                                            -7-
harassment is not actionable under Title VII). Nor is it enough to survive

summary judgment.    2



      Only Mr. Hounton indicates there was a discriminatory hostile work

environment; overwhelmingly, all of the other affidavits and depositions indicate

the other pressmen’s frustration was with Mr. Hounton’s failure to do his share of

the work. Mr. Hounton’s subjective belief that he has been discriminated against,

standing alone, is not sufficient to preclude the grant of summary judgment.   See

Stover , 382 F.3d 1074 n.2. Accordingly, because there was not sufficient

evidence of a pervasive environment of racial or national-origin taunting or an

environment encouraging Mr. Hounton’s co-workers to engage in racially

motivated activity, we conclude the district court correctly granted summary

judgment.




2
       The record does not support Mr. Hounton’s assertion that Mr. Zollinger lied
at his deposition when he testified that he watched a surveillance videotape
showing Mr. Hounton hitting Mr. Livingston. According to Mr. Zollinger and
Diane Chavez, this videotape was taped over and no longer exists. It is pure
speculation on Mr. Hounton’s part that there actually was no videotape, based on
the facts that Mr. Zollinger never mentioned the videotape to Officer Gallegos or
in the materials submitted to the Equal Employment Opportunity Commission.
These mere allegations are insufficient to preclude the granting of summary
judgment. See Stover v. Martinez , 382 F.3d 1064, 1070 (10th Cir. 2004) (“Mere
allegations . . . are insufficient to survive a motion for summary judgment.”).


                                           -8-
       B. RETALIATION

       Next, Mr. Hounton argues he was fired in retaliation for bringing Officer

Gallegos to The Gallup Independent. Title VII prohibits retaliation against an

employee who opposes any unlawful employment practices.            See 42 U.S.C.

§ 2000e-3(a). To show retaliation, Mr. Hounton must first present a prima facie

case of retaliation, showing that (1) he “engaged in protected opposition to

discrimination;” (2) he suffered “an adverse employment action;” and (3) “there

exists a causal connection between the protected activity and the adverse action.”

Stover , 382 F.3d at 1071.

       The district court decided that plaintiff failed to prove the first element,

and we agree. Although filing a police report can be protected activity,     see Worth

v. Tyer , 276 F.3d 249, 265 (7th Cir. 2001), Mr. Hounton’s police report contains

nothing about discriminatory activity based on race or national origin,     see Aplt.

App. at 56-57.   3
                     The absence of any reference to discriminatory activity in the

report precludes this retaliation claim because Gallup Independent could not

engage in retaliation if it was unaware that Mr. Hounton opposed a violation of

Title VII. See Petersen v. Utah Dep’t of Corr.     , 301 F.3d 1182, 1188 (10th Cir.

2002). Also, nothing in the record suggests that Mr. Zollinger was aware of any


3
      Although Officer Gallegos questioned in his mind whether there was racial
hatred against Mr. Hounton, Mr. Hounton did not raise it to him. Aplt. App. at
150.

                                            -9-
alleged race or national origin discrimination against Mr. Hounton. Thus, under

the circumstances of this case, making the police report did not constitute

protected activity for a prima facie case. Accordingly, we conclude the district

court correctly decided that Mr. Hounton failed to present a prima facie case of

retaliation.

       C. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

       Finally, Mr. Hounton argues the district court erred in granting summary

judgment on his state-law claim of intentional infliction of emotional distress. To

establish a claim of intentional infliction of emotional distress, Mr. Hounton must

prove: “(1) the conduct in question was extreme and outrageous; (2) the conduct

of the defendant was intentional or in reckless disregard of the plaintiff; (3) the

plaintiff’s mental distress was extreme and severe; and (4) there is a causal

connection between the defendant’s conduct and the claimant’s mental distress.”

Trujillo v. N. Rio Arriba Elec. Co-op, Inc.     , 41 P.3d 333, 342 (N.M. 2001)

(quotation omitted). We agree with the district court that the conduct at issue

here is not “‘so outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as atrocious, and

utterly intolerable in a civilized community.’”      Id. (quoting Restatement (Second)

of Torts § 46 cmt. d (1965)). Mr. Hounton’s breaking into tears at work on one

occasion due to a comment made to hurry up with his work is insufficient to


                                              -10-
establish severe emotional distress, such that a reasonable person could not cope

with the mental distress caused by the situation.   See id. at 343. And

Mr. Zollinger’s screaming that Mr. Hounton was a “lazy ass” and refusal to

permit a police investigation of the prior day’s incident while the witnesses were

working also did not constitute extreme and outrageous conduct. Accordingly, we

conclude the district court correctly granted summary judgment on this claim.

       The judgment of the district court is AFFIRMED.



                                                      Entered for the Court



                                                      J. Thomas Marten
                                                      District Judge




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