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

                            FOR THE TENTH CIRCUIT                       January 23, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
ROLAND BENAVIDES,

             Plaintiff-Appellant,

v.                                                        No. 12-6107
                                                   (D.C. No. 5:11-CV-00126-C)
CITY OF OKLAHOMA CITY,                                    (W.D. Okla.)

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before ANDERSON and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit
Judge.



      In this employment discrimination case, Roland Benavides appeals from a

district court order that granted the City of Oklahoma City’s motion for summary

judgment on Benavides’ claims under the Americans with Disabilities Act (ADA),

42 U.S.C. §§ 12131-12134, and the Family and Medical Leave Act (FMLA),



*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
29 U.S.C. §§ 2611-2619. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

                                    BACKGROUND

      Benavides began working for the City as a police officer in 1992. Ultimately,

he became a detective, and was assigned to the burglary unit in 2006. Due to various

medical conditions, including dilated cardiomyopathy, Benavides took sick leave and

donated leave under the FMLA.

      On May 14, 2010, one of Benavides’ co-workers filed a confidential report

indicating that Benavides was suspected of illegal gambling. Based on that report,

the police chief ordered an investigation.

      One week later, Benavides complained to his immediate supervisor, Lieutenant

Frank O’Brien, that his co-workers had been harassing him regarding his health

problems and use of sick leave. Lieutenant O’Brien met with Benavides’ co-workers

in the burglary unit and instructed them to stop commenting on Benavides’ use of

sick leave.

      On May 27, Benavides reduced his allegations to writing, stating that

(1) co-workers had placed a can of cremated ashes on his desk because they had

heard he was on his death bed; (2) co-workers had on several occasions placed a

packaged tampon on his chair; (3) one co-worker created a video cartoon negatively

depicting his medical condition and sent it around the office; (4) that same co-worker

told Benavides that if he worked for the military, he would have been fired; and


                                             -2-
(5) a co-worker called him a “dumbass” at least four times regarding his use of time

off. Lieutenant O’Brien again spoke with Benavides’ co-workers, and forwarded

Benavides’ allegations up the chain of command. The police chief ordered an

investigation.

      Captain Kim Flowers began that investigation on June 17, interviewing

Benavides about his allegations. She interviewed him again several days later, and

then proceeded to interview seventeen of his co-workers, as well as Lieutenant

O’Brien.

      On July 26, Captain Flowers issued a detailed, 61-page report, determining

that the cartoon video and “dumb ass” remarks violated various departmental

policies. As for the other comments and incidents, she determined that they were

either part of the jovial environment that existed in the burglary unit, and in which

Benavides had at times participated, or were simply not confirmed.

      On September 21, 2010, Benavides was subpoenaed to testify before a grand

jury. Pursuant to departmental policy for officers about to be charged with a crime,

Benavides was immediately placed on paid administrative leave.

      On October 8, 2010, as a result of Captain Flowers’ investigation, the

Department formally reprimanded the co-worker who had disseminated the cartoon

video, and it issued “documented counseling[s]” to three co-workers regarding the

“dumb ass” remarks and tampon incidents. Aplt. App., Vol. III at 526-28.




                                          -3-
       On October 19, 2010, Benavides filed a discrimination charge with the

Oklahoma Human Rights Commission. In February 2011, Benavides sued the City,

the Department, the police chief, Captain Flowers, and various co-workers for

violations of the ADA and the FMLA. The district court dismissed the claims against

the individual defendants and the Department, and the case proceeded against only

the City.

       In June 2011, while still on paid administrative leave, Benavides was indicted

in state court on gambling charges. In January 2012, he resigned from the

Department, stating that he was “voluntarily resign[ing] . . . as the result of [his]

declining medical condition due in part to the stress related events of [his] disability

case.” Id., Vol. I at 75.

       The City moved for summary judgment. While briefing was in progress,

Benavides pleaded guilty to one count of illegal gambling and one count of using a

computer to illegally gamble, and he was given a “5 year unsupervised deferred

sentence.” Id. at 202.

       The district court granted the City’s summary-judgment motion. It concluded

that Benavides was not disabled under the ADA, but even if he was disabled, the

working conditions at the Department were not hostile, and were promptly

investigated by the Department. Further, it rejected his claims for retaliation,

concluding that Benavides failed to show a materially adverse job action or that

being placed on administrative leave was a pretext for retaliation.


                                           -4-
                                      DISCUSSION

                                I. Standards of Review

      We review the district court’s order granting summary judgment de novo,

applying the same standard as the district court. Ribeau v. Katt, 681 F.3d 1190, 1194

(10th Cir. 2012). Summary judgment is appropriate “if the movant shows that 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). “When applying this standard, we view the

evidence and draw reasonable inferences therefrom in the light most favorable to the

nonmoving party.” Ribeau, 681 F.3d at 1194.1

                                    II. ADA Claims

      The ADA prohibits “discriminat[ion] against a qualified individual on the

basis of disability in regard to job application procedures, the hiring, advancement, or

discharge of employees, employee compensation, job training, and other terms,

conditions, and privileges of employment.” 42 U.S.C. § 12112(a).2 On appeal,



1
       Benavides argues that the district court construed the facts in a light favorable
to the City. We disagree. In any event, our review of a summary-judgment decision
is de novo.
2
       We need not reach the issue of whether Benavides is disabled under the ADA,
see 42 U.S.C. § 12102(1) (extending ADA protections to persons who have “a
physical or mental impairment that substantially limits one or more major life
activities,” a “record of such an impairment,” or if they are “regarded as having such
an impairment”), because other aspects of his ADA claims are dispositive.
Additionally, a disability is not a prerequisite to an ADA-retaliation claim. Selenke
v. Med. Imaging of Colo., 248 F.3d 1249, 1264 (10th Cir. 2001).


                                          -5-
Benavides identifies four ADA-based theories: hostile work environment; failure to

accommodate; discrimination; and retaliation.

                             A. Hostile Work Environment

      “For a hostile environment claim to survive a summary judgment motion, a

plaintiff must show that a rational jury could find that the workplace was 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.” MacKenzie v. City & Cnty. of Denver, 414 F.3d 1266, 1280

(10th Cir. 2005) (brackets and quotation omitted). But the standard for imposing

liability on an employer for workplace harassment is heightened where, as here, the

perpetrators of that harassment were a plaintiff’s co-workers. Specifically, the

employer, “as opposed to the individual directly responsible for the misbehavior, is

liable, on a negligence theory, if it knew or should have known about the conduct and

failed to stop it.” Bertsch v. Overstock.com, 684 F.3d 1023, 1027 (10th Cir. 2012)

(quotation omitted). Thus, “[a]n employer is absolved of liability for acts of

harassment by its employees if it undertakes remedial and preventative action

reasonably calculated to end the harassment.” Duncan v. Manager, Dep’t of Safety,

City & Cnty. of Denver, 397 F.3d 1300, 1310 (10th Cir. 2005) (quotation omitted).

      Benavides does not devote any legal argument to the City’s remedial response

to his harassment allegations. “[A] party waives those arguments that its opening




                                           -6-
brief inadequately addresses.” Harsco Corp. v. Renner, 475 F.3d 1179, 1190

(10th Cir. 2007).

      Even if we were to construe Benavides’ legal briefs as adequately addressing

the issue, the record indicates that the City reasonably responded to his allegations.

Specifically, after Benavides brought the offending conduct and remarks to light,

Lieutenant O’Brien twice instructed Benavides’ co-workers to cease. Captain

Flowers soon thereafter initiated an extensive investigation, concluding that the

cartoon video and “dumb ass” remarks violated departmental policy. And the City

imposed discipline for not only the infractions found by Captain Flowers, but also for

the tampon incidents. Although the City placed Benavides on leave before formally

disciplining his co-workers, Benavides identifies nothing indicating that his co-

workers continued their harassment after Lieutenant O’Brien’s second warning.3 “A

stoppage of harassment” suggests a reasonable employer response. Tademy v. Union

Pac. Corp., 614 F.3d 1132, 1148 (10th Cir. 2008) (quotation omitted). In any event,

Benavides has not carried his burden of demonstrating that the City’s response was

inadequate. See Hollins v. Delta Airlines, 238 F.3d 1255, 1258 (10th Cir. 2001) (“In

order to prevail on a negligence-based hostile work environment claim, [the




3
       To the extent Benavides asserts that after he complained he was shunned by
his co-workers, he cannot establish a hostile work environment. See Palesch v.
Mo. Comm’n on Human Rights, 233 F.3d 560, 567 (8th Cir. 2000) (noting that
ostracism, without more, is insufficient to create a hostile work environment).

                                          -7-
employee] bears the burden of establishing that the employer’s conduct was

unreasonable.” (quotation omitted)).

      We conclude that there is no genuine issue of fact as to whether the City took

prompt and appropriate remedial action in response to Benavides’ allegations of

harassment. Thus, we need not address whether Benavides was subjected to conduct

that was sufficiently severe or pervasive as to constitute a hostile work environment.

                             B. Failure to Accommodate

      Failing to reasonably accommodate an employee’s disability is a type of

discrimination. See 42 U.S.C. § 12112(b)(5)(A). Benavides argues that he “made

several requests to the City for job transfers” “to address his serious medical

condition,” but “[o]n each occasion [he] was rejected and remained in the burglary

detail.” Aplt. Opening Br. at 36. But he did not make a failure-to-accommodate

argument below, and we decline to address an argument not raised in the district

court. See ClearOne Commc’ns, Inc. v. Biamp Sys., 653 F.3d 1163, 1182 (10th Cir.

2011) (“This court will generally not consider an argument that was not raised in the

district court.”). Moreover, Benavides does not adequately brief the argument for our

consideration. See Hennagir v. Utah Dep’t of Corr., 587 F.3d 1255, 1264 (10th Cir.

2009) (“When alleging a failure to accommodate, a plaintiff carries the burden of

demonstrating the existence of a facially reasonable accommodation.”).




                                          -8-
                 C. Discriminatory Administrative-Leave Conditions

      Benavides argues that while on administrative leave, he was “prohibited from

engaging in several income producing activities that in the past . . . he was capable of

performing.” Aplt. Opening Br. at 37-38. “To establish a prima facie case of

discrimination under the ADA, Plaintiff must demonstrate (1) that he is ‘disabled’

within the meaning of the ADA, (2) that he is qualified-with or without reasonable

accommodation; and (3) that he was discriminated against because of his disability.”

Butler v. City of Prairie Vill., 172 F.3d 736, 748 (10th Cir. 1999) (footnotes and

quotation omitted). Benavides’ argument fails under the last prong.

      “In order to demonstrate discrimination, a plaintiff generally must show that

he has suffered an adverse employment action because of the disability.” EEOC v.

C.R. England, Inc., 644 F.3d 1028, 1038 (10th Cir. 2011) (quotation omitted;

emphasis added). Although this court liberally defines the term “adverse

employment action,” it generally refers only to “acts that constitute a significant

change in employment status, such as hiring, firing, failing to promote, reassignment

with significantly different responsibilities, or [to] a decision causing a significant

change in benefits.” Id. at 1040 (brackets and quotations omitted). At the very least,

“a plaintiff must show that the alleged adverse action caused more than de minimis

harm to or a de minimis impact upon [his] job opportunities or status.” Id. (quotation

omitted).




                                           -9-
       Benavides does not dispute that he was paid his full salary while on leave.

Rather, he complains that he could not use his police background in side jobs while

on leave. But the only side job he identified during his deposition was intermittent

security work that he had not done for at least seven years before being placed on

leave. We conclude that no rational jury could find that the restriction on Benavides’

administrative leave was anything but de minimis.

       Even if we were to conclude that Benavides had demonstrated a prima facie

case of discrimination in regard to being placed on paid administrative leave, the City

has identified a legitimate, nondiscriminatory reason for doing so, and Benavides has

not shown pretext. See C.R. England, Inc., 644 F.3d at 1038 (noting that under the

familiar McDonnell Douglas framework,4 once an employer responds to a prima facie

case by “articulat[ing] a legitimate, nondiscriminatory reason for its actions[,] . . . the

burden then shifts back to the plaintiff to show that the [employer’s] stated reasons

are merely pretextual” (quotation omitted)). Specifically, the City asserts that it

placed Benavides on administrative leave because he was subpoenaed to testify

before a grand jury and he was suspected of illegal gambling—a crime that

Benavides ultimately pleaded guilty to committing. Although Benavides contends

that some of his co-workers gambled and were not placed on administrative leave, he

has not undermined the City’s evidence that it had ordered administrative leave for

eleven other employees who had either been charged with a crime or were facing
4
       See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).


                                          - 10 -
criminal charges. In short, Benavides has not shown that the City’s “proffered

explanation is unworthy of credence” or that “a discriminatory reason more likely

motivated” the decision to place him on paid administrative leave. Zamora v. Elite

Logistics, Inc., 478 F.3d 1160, 1166 (10th Cir. 2007).

      Summary judgment was proper on Benavides’ ADA-discrimination claim.

                                   D. Retaliation

      “A prima facie case of retaliation under the ADA requires: (1) that an

employee 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.” EEOC v. Picture People, Inc., 684 F.3d 981, 988 (10th Cir. 2012) (brackets

and quotation omitted). Benavides claims that the City retaliated against him for

complaining about his co-workers’ conduct, and that the City acted against him by

condoning a hostile work environment, not transferring him, and placing him on

administrative leave. We reject each of these claims.

      Regarding retaliatory co-worker harassment, an employer can be liable only if

“its supervisory or management personnel either (1) orchestrate the harassment, or

(2) know about the harassment and acquiesce in it in such a manner as to condone

and encourage the co-workers’ actions.” Gunnell v. Utah Valley State Coll.,

152 F.3d 1253, 1265 (10th Cir. 1998). As we discussed above in Part II.A., the City




                                        - 11 -
reasonably responded to Benavides’ allegations of harassment. He thus cannot

survive summary judgment on a retaliatory-harassment theory.

      As for a retaliatory refusal-to-transfer theory, Benavides simply directs this

court’s attention to his failure-to-accommodate theory. But his accommodation

theory is little more than a summary allegation in his opening brief. In the absence of

adequate argument concerning a retaliatory refusal to transfer, we deem the theory

waived. See Christian Heritage Acad. v. Okla. Secondary Sch. Activities Ass’n,

483 F.3d 1025, 1031 (10th Cir. 2007) (applying waiver when appellant identified

issue in opening brief, but devoted less than one page to it and provided “no other

argument and no citations”).

      Finally, we reject Benavides’ retaliatory-administrative-leave argument on the

same two bases discussed above regarding his discriminatory-administrative-leave

argument. See Part II.C. Specifically, Benavides did not suffer a materially adverse

action by being placed on paid administrative leave, and even if he did, he failed to

show that the City’s reason for the leave was pretextual.

                                III. FMLA Retaliation

      “The FMLA makes it unlawful for an employer to retaliate against an

employee for exercising [his] rights to FMLA leave.” Khalik v. United Air Lines,

671 F.3d 1188, 1193 (10th Cir. 2012). To establish a prima facie case of FMLA

retaliation, Benavides must show (1) he engaged in protected activity, (2) the City

took a materially adverse action, and (3) there is a causal connection between the


                                         - 12 -
protected activity and the adverse action. Id. If a prima facie case is established,

“the burden then shifts to the [City] to offer a legitimate reason for [its action], and if

it does, then [the burden shifts] back to [Benavides] to present evidence to suggest

the stated reason was pretextual.” Robert v. Bd. of Cnty. Comm’rs of Brown Cnty.,

691 F.3d 1211, 1219 (10th Cir. 2012).

       Benavides states that he “relies on the same arguments” he used “for proof of

his ADA claims.” Aplt. Opening Br. at 45. We conclude that his FMLA-retaliation

claim fails for the same reasons his ADA-retaliation claim failed.

                                      CONCLUSION

       The judgment of the district court is affirmed.

                                                   Entered for the Court


                                                   Stephen H. Anderson
                                                   Circuit Judge




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