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

                            FOR THE TENTH CIRCUIT                            April 23, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 DEON R. BRAXTON; MARCUS
 ZEIGLER,

       Plaintiffs - Appellants,

 v.                                                         No. 18-6076
                                                     (D.C. No. 5:17-CV-00277-R)
 NORTEK AIR SOLUTIONS, LLC, a                               (W.D. Okla.)
 limited liability company doing business in
 Oklahoma,

       Defendant - Appellee.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BRISCOE, MORITZ, and EID, Circuit Judges.
                  _________________________________

       Deon R. Braxton and Marcus Zeigler (“the Plaintiffs”) sued their employer,

Nortek Air Solutions, LLC (“Nortek”), for discriminating against them based on their

race and for retaliating against them after they complained about the discrimination. The

district court granted summary judgment to Nortek on both claims. Exercising

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


      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
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 This order and judgment is not binding precedent,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

       The district court’s order contains a thorough and accurate description of the

events underlying this lawsuit, which we incorporate by reference. See Aplts. App.,

Vol. 3 at 480-84. The Plaintiffs have streamlined their arguments considerably on

appeal, so we provide a more limited synopsis.

       Nortek is a custom heating, ventilation, and air conditioning manufacturer.

Braxton and Zeigler are African American assembly workers who have worked for

Nortek since 2007 and 1985, respectively. Although both men remain employed by

Nortek, their personnel files reflect periodic concerns as to attendance and timeliness,

excessive talking, lack of productivity, and compliance with paperwork requirements.

       During the relevant time frame, Braxton and Zeigler worked in Nortek’s “Doors”

department, where they were the only African Americans. Shortly after they began

working together, Nortek placed a structure between their work stations, which hindered

their interaction. Braxton and Zeigler describe it as a “metal barrier,” Aplts. Opening Br.

at 5, and we adopt this terminology. They believe Nortek used the structure to monitor

and isolate them (but not any other employees) and note that it was removed after

Zeigler’s transfer to another department. By contrast, Nortek refers to the barrier as a

“combine bin” that provided Braxton and Zeigler “with quick and easy access to the

parts and tools that they needed while they worked,” in keeping with “the lean

manufacturing principal of reducing unnecessary movement and improv[ing] efficiency.”

Aplee. Br. at 4-5. A photograph in the record shows metal shelves filled with bins and

boxes of various sizes. See Aplts. App., Vol. 2 at 303.

                                             2
       On April 20, 2016, Braxton and Zeigler were sent home from work for two partial

days. A manager told them it was because they were talking, but both men contend they

were punished for moving the metal barrier to clean beneath it. Whatever the reason,

Braxton and Zeigler felt humiliated because they were escorted out of the office in front

of their co-workers. Upon their return to their homes, Braxton and Zeigler jointly called

the human resources department to complain about racial profiling in the workplace, the

metal barrier, and their treatment on that day. Nortek subsequently acknowledged it had

not followed its policy handbook, under which a verbal warning would have sufficed,

and it paid both men for their time off. A supervisor gave both Braxton and Zeigler

verbal warnings, which were not documented in their personnel files.

       After the two men returned to work, Braxton met with the plant manager, Perry

Simmons. During their meeting, Simmons purportedly told Braxton, “I’m here to have a

meeting with you because you’re the one who did all the talking to the HR.” Id. at

242-43 (internal quotation marks omitted). He also said it was in Braxton’s “best interest

to let bygones be bygones and act like nothing ever happened and sweep this under the

rug.” Id. at 243 (internal quotation marks omitted). Braxton interpreted these statements

as a threat in response to the phone call to the human resources department.

       Braxton and Zeigler filed separate lawsuits alleging discrimination and retaliation

in violation of their rights under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. §§ 2000e-2 and 2000e-3, as well as state law claims for

intentional infliction of emotional distress. Zeigler, who is hearing impaired, also



                                             3
brought a claim for violation of the Americans with Disabilities Act, which he later

withdrew. The district court consolidated their cases.

       Upon Nortek’s motion, the district court granted summary judgment to Nortek on

all claims. The court considered the merits of the discrimination and retaliation claims,

but it found that Braxton and Zeigler waived their intentional infliction of emotional

distress claims by failing to adequately respond to that part of Nortek’s motion for

summary judgment.

       Braxton and Zeigler filed this timely appeal. Both men challenge the district

court’s ruling on their discrimination claims, and Braxton also challenges the ruling on

his retaliation claim.

                                         Analysis

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

same legal standard as the district court. Cillo v. City of Greenwood Vill., 739 F.3d 451,

461 (10th Cir. 2013). Summary judgment must be granted if “there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). “The movant bears the initial burden of making a prima facie

demonstration of the absence of a genuine issue of material fact and entitlement to

judgment as a matter of law.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71

(10th Cir. 1998). But if the movant will not bear the burden of persuasion at trial, it can

meet this initial burden “simply by pointing out to the court a lack of evidence for the

nonmovant on an essential element of the nonmovant’s claim.” Id. at 671. It “need not

negate the nonmovant’s claim.” Id.

                                             4
      A. Discrimination Claims

      For their disparate treatment claims, the Plaintiffs allege that Nortek discriminated

against them because they are African American, thus violating § 1981 and Title VII.

See 42 U.S.C. § 1981 (providing all persons with equal rights under the law); 42 U.S.C.

§ 2000e-2(a)(1) (prohibiting an employer from discriminating against an individual

because of race).

      Because the claims are based on circumstantial evidence, the district court

properly applied the burden-shifting framework from McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-04 (1973). The employee must first establish a prima facie

case of racial discrimination. Id. at 802. If he does so, the burden shifts to the

employer “to articulate some legitimate, nondiscriminatory reason” for the adverse

employment action. Id. And if the employer makes this showing, the burden shifts

back to the employee to show the justification offered by the employer was

pretextual. Id. at 804-05 & n.18.

      The elements of a racial discrimination claim are the same, whether the claim is

brought under § 1981 or Title VII. Baca v. Sklar, 398 F.3d 1210, 1218 n.3

(10th Cir. 2005). To prove a prima facie case of disparate treatment based on race,

the Plaintiffs “must establish that (1) [they are] member[s] of a protected class,

(2) [they] suffered an adverse employment action, (3) [they] qualified for the

position[s] at issue, and (4) [they were] treated less favorably than others not in the

protected class.” Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012).



                                            5
       The district court found that the Plaintiffs failed to make a prima facie

showing of disparate treatment given the undisputed facts and applicable case law. It

concluded the Plaintiffs readily satisfy the first and third elements but granted summary

judgment to Nortek after determining they could not show the second element (adverse

employment action) or the fourth element (less favorable treatment). We agree with the

district court’s conclusion.

                               Adverse Employment Action

       In assessing whether an employee has suffered an adverse employment action, this

court “take[s] a case-by-case approach, examining the unique factors relevant to the

situation at hand.” Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 (10th Cir. 1998)

(internal quotation marks omitted). We have defined the term “liberally” in that “[s]uch

actions are not simply limited to monetary losses in the form of wages or benefits.” Id.;

see also MacKenzie v. City & Cty. of Denver, 414 F.3d 1266, 1279 (10th Cir. 2005)

(explaining that “adverse employment actions extend beyond readily quantifiable losses”

(internal quotation marks omitted)), abrogated on other grounds by Lincoln v. BNSF Ry.

Co., 900 F.3d 1166, 1185-86 (10th Cir. 2018). “In so defining the phrase, we consider

acts that carry a significant risk of humiliation, damage to reputation, and a concomitant

harm to future employment prospects.” Annett v. Univ. of Kan., 371 F.3d 1233, 1239

(10th Cir. 2004) (internal quotation marks omitted).

       At the same time, “we will not consider a mere inconvenience or an alteration of

job responsibilities to be an adverse employment action.” Sanchez, 164 F.3d at 532

(internal quotation marks omitted). “[N]ot everything that makes an employee unhappy

                                             6
is an actionable adverse action. Otherwise, minor and even trivial employment actions

that an irritable, chip-on-the-shoulder employee did not like would form the basis of a

discrimination suit.” MacKenzie, 414 F.3d at 1279 (internal quotation marks omitted);

cf. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (explaining in a different

context that “[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”).

       On appeal, the Plaintiffs pinpoint two events as adverse employment actions:

(1) the metal barrier placed between their work spaces; and (2) the disciplinary incident

on April 20, 2016, which caused them to suffer humiliation and resulted in a warning

from the human resources department.1 Having thoroughly considered the case law and

the record (including photographs of the structure and work area in question), we agree

with the district court that the Plaintiffs could not succeed in proving an adverse



       1
         In opposing Nortek’s summary judgment motion, the Plaintiffs identified
additional events as adverse employment actions: for example, the loss of Braxton’s
“coordinator” title after a company merger in 2014; Braxton’s lateral transfer from the
“Cubes” department to the “Doors” department; the placement of the coffee machine in
the work area instead of the office break room; Nortek’s policy of locking its doors to
force deliverymen to enter through the main entrance, which made it difficult for Braxton
to reenter after his smoking breaks; and Zeigler’s transfer from the “Doors” department
to the “Insulation” department. The district court explained why each of these events did
not constitute an adverse employment action, and the Plaintiffs do not challenge those
findings on appeal. It is well established that “[i]ssues not raised in the opening brief are
deemed abandoned or waived.” Tran v. Trs. of the State Colls. in Colo., 355 F.3d 1263,
1266 (10th Cir. 2004) (internal quotation marks omitted).

                                              7
employment action based on these events. The Plaintiffs highlight discrepancies between

the parties’ respective versions of these events to attempt to create a genuine issue of

material fact. But they do not discuss the relevant standard or cite any authority in which

similar actions were deemed to be adverse employment actions.

       Setting aside Nortek’s explanation that the metal barrier was designed to enhance

the Plaintiffs’ productivity, we agree that the barrier was, at most, an inconvenience; the

Plaintiffs have not convinced us otherwise through evidence or case law. Likewise, the

April 20 disciplinary incident and its aftermath did not rise to the level of an adverse

employment action. A strong indicator that a challenged employment action is adverse

“is that the action causes harm to future employment prospects.” Hillig v. Rumsfeld,

381 F.3d 1028, 1031 (10th Cir. 2004) (internal quotation marks omitted). Yet here, the

Plaintiffs received payment for their time off, the warnings given to them were not placed

in their permanent records, and they are still employed by the company; besides, both

men had multiple other warnings in their personnel folders.

       Last, to the extent the Plaintiffs argue their humiliation upon being escorted from

their workplace itself constitutes an adverse employment action (which would be a

generous reading of their briefs), feelings of humiliation alone are not enough to establish

an adverse employment action. We rejected that notion within our qualified immunity

analysis in Lincoln v. Maketa, 880 F.3d 533, 543 (10th Cir. 2018), when we found that

“[a]n allegation of humiliation alone [was] not enough to clearly establish an adverse

employment action” for a retaliation claim. Given that less is required to prove an

adverse employment action for a retaliation claim than a discrimination claim, as

                                              8
explained below, the Plaintiffs’ humiliation cannot satisfy the second element here.

See also Sanchez, 164 F.3d at 532 (evaluating the effect of an employee’s “personal

discomfort” and finding that where a transfer was “truly lateral and involve[d] no

significant changes in an employee’s conditions of employment, the fact that the

employee views the transfer either positively or negatively [did] not of itself render

the denial or receipt of the transfer [an] adverse employment action”).

                                 Less Favorable Treatment

       The Plaintiffs fare no better with respect to the fourth element. They contend they

received less favorable treatment than their coworkers because they did not receive a

raise during the summer of 2016. But Nortek presented undisputed evidence that no

employee received a raise at that time, and the Plaintiffs did not present contrary

evidence to raise a genuine issue of material fact. See Aplts. App., Vol. 3 at 493

(“Plaintiffs’ testimony to the contrary is based solely on hearsay, not personal knowledge,

and therefore [is] inadmissible to refute Defendant’s showing.”).

       B. Retaliation Claim

       Braxton also challenges the district court’s ruling on his retaliation claim.2

Streamlining this argument as well, he argues that the plant manager’s threatening

comments to him after he reported disparate treatment to the human resources department

constitute retaliation in violation of Title VII. See 42 U.S.C. § 2000e-3(a) (prohibiting an




       2
        Zeigler does not appeal the district court’s dismissal of his retaliation claim
based on his transfer from the “Doors” department to the “Insulation” department.
                                              9
employer from discriminating against an individual because he has opposed an unlawful

employment practice).

       Because there is no direct evidence of retaliation, we operate once more within the

McDonnell Douglas framework. See Annett, 371 F.3d at 1237. To state a prima facie

case of retaliation, Braxton “must show that: (1) [he] engaged in protected activity;

(2) [Nortek] took an adverse employment action against [him]; and (3) there exists a

causal connection between the protected activity and the adverse action.” Id. “For a

retaliation claim under Title VII, an adverse employment action is something that would

have ‘dissuaded a reasonable worker from making or supporting a charge of

discrimination.’” Lincoln v. Maketa, 880 F.3d at 540 (quoting Burlington N. & Santa Fe

Ry. v. White, 548 U.S. 53, 68 (2006)).

       The district court carefully applied the appropriate standard. It found that Braxton

clearly met the first prima facie element because he complained to Nortek’s human

resources department about racial profiling, the metal barrier, and being sent home from

work on April 20. But it concluded that Simmons’ alleged retaliatory threat was not

“materially adverse” because it was “wholly unrealized” and Braxton continued to work

in his position: “Simmons did not follow through with whatever it was that Braxton

feared—Braxton still works as a Doors assembly worker and has not shown additional

evidence legitimizing this threat or bearing on a material change in employment status.”

Aplts. App., Vol. 3 at 494-95. The district court ended its analysis there.

       Braxton does not address the district court’s reasoning on appeal. He simply

recites the standard and makes a conclusory statement that “a reasonable employee would

                                            10
have found that the direct threat from Simmons to Braxton [was] materially adverse,”

Aplts. Opening Br. at 21.

       We agree with the district court that Braxton cannot state a prima facie case of

retaliation, such that summary judgment is appropriate on this claim too. Simmons’

vague and isolated comment, for which there were no attendant consequences, falls far

short of the applicable standard. See Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1381

(10th Cir. 1994) (upholding the district court’s determination that an employee did not

establish an adverse employment action where there was no evidence an employer’s

threat to perform future evaluations was ever carried out).

                                       Conclusion

       Because we conclude the Plaintiffs cannot state a prima facie case for

discrimination and Braxton cannot state a prima facie case for retaliation, we need not

consider the argument that Nortek’s proffered nondiscriminatory reason for its actions

was pretextual.

       We affirm.


                                             Entered for the Court


                                             Nancy L. Moritz
                                             Circuit Judge




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