                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                           May 2, 2007
                             FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                          Clerk of Court

    GILBERT H INOJOS,

              Plaintiff-Appellant,

     v.                                                    No. 06-2310
                                                 (D.C. No. CIV-04-779 M V/RH S)
    HO NEY W ELL FM & T,                                    (D . N.M .)

              Defendant-Appellee.



                              OR D ER AND JUDGM ENT *


Before BR ISC OE, SE YM OU R, and A ND ER SO N, Circuit Judges.




          Gilbert J. Hinojos, proceeding pro se on appeal, challenges the district

court’s grant of summary judgment in favor of his former employer H oneywell

Federal M anufacturing & Technologies in this employment discrimination action.

W e have jurisdiction under 28 U.S.C. § 1291, and 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not binding precedent, except under the doctrines of law of the case, res judicata,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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                          I.

      M r. H inojos worked as a M aterials Control Coordinator for H oneywell.

Beginning in 1998, he filed several discrimination complaints with the Equal

Employment Opportunity Commission (EEOC) and the New M exico Human

Rights Division, and in 2000, he filed a federal lawsuit alleging retaliation for

filing his complaints. Ultimately, this court affirmed the district court’s grant of

summary judgment to Honeywell in that action. Hinojos v. Honeywell Int’l, Inc.,

56 F. App’x 884, 886 (10th Cir. 2003) (Hinojos I). In July 2002, M r. Hinojos

also filed a complaint under a Department of Energy whistleblower program, 10

C.F.R. Part 708, alleging retaliation for filing his EEOC complaints.

      W hile his Part 708 complaint was pending, on December 6, 2002,

M r. Hinojos was involved in a work-related accident. He was driving a truck

transporting cargo restraint containers (CRTs), large metal containers weighing

several hundred pounds. The CRTs were not tied down, and when M r. Hinojos

stopped suddenly at a traffic light, several CRTs shifted forward. One CRT broke

the w indow glass in the rear of his vehicle and another shifted on to the vehicle’s

roof. After investigating the accident, Honeywell terminated M r. Hinojos’s

employment on January 8, 2003, citing safety concerns.

      M r. Hinojos amended his Part 708 complaint to allege that the termination

was retaliation for filing the initial Part 708 complaint. A hearing officer found

that M r. Hinojos was responsible for tying down the load and that a co-worker

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had given M r. Hinojos a tie-down strap and told him to secure the load. The

hearing officer concluded Honeywell’s safety concerns were reasonable. The

Director of the Office of Hearings and Appeals affirmed the decision that

Honeywell did not terminate M r. Hinojos’s employment in retaliation for the Part

708 complaint.

      W hile the Part 708 action was pending, M r. Hinojos filed a pro se suit

against Honeywell for violations of Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e-2(a) and 2000e-3. He later hired an attorney to represent him.

Pursuant to the district court’s order, counsel amended the complaint to focus on

actions after Hinojos I, alleging the termination was retaliation in violation of

Title VII, the termination was the result of national origin discrimination in

violation of Title VII, and the termination was a wrongful discharge in violation

of New M exico public policy. The court granted Honeywell’s motion for

summary judgment on the Title VII claims, and having disposed of the federal

claims, it dismissed the state law claim without prejudice. M r. Hinojos appeals.

                                          II.

      W e review the district court’s decision de novo, viewing the record in the

light most favorable to M r. Hinojos as the nonmoving party. M cGowan v. City of

Eufala, 472 F.3d 736, 741 (10th Cir. 2006). As M r. Hinojos represents himself

on appeal, we construe his filings liberally. See Haines v. Kerner, 404 U.S. 519,

520 (1972) (per curiam). W e will not, however, craft arguments or legal theories

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for him. Garrett v. Selby Connor M addux & Janer, 425 F.3d 836, 841 (10th Cir.

2005).

         M r. Hinojos argues that Furr v. Seagate Technology, Inc., 82 F.3d 980

(10th Cir. 1996), and its progeny “have produced a[n] unfair barrier to an

employee’s rights under the Civil Rights Acts” because they

         elevate[] a supervisor’s evaluation of the employee’s Performance to
         something near God’s word. This case as interpreted by the District
         Court holds that a supervisor’s word concerning the performance of
         An employee is final and does not allow for the introduction of doubt
         by the Plaintiff or appellant in a Civil Rights Case.

Aplt. Br. at 3, 5. This argument does not provide a basis for reversal of the

district court because the court did not rely on Furr in reaching its decision.

M oreover, M r. Hinojos did not present a Furr argument to the district court, and

as a result, w e cannot consider the issue on appeal. See Hicks v. Gates Rubber

Co., 928 F.2d 966, 970 (10th Cir. 1991).

         M r. Hinojos also appears to argue that he need not establish his prima facie

case at the pleading stage. This argument too is misplaced. The case was not

resolved at the pleading stage; it w as resolved on summary judgment.

Unsupported allegations may suffice for a complaint, but they are insufficient to

defeat summary judgment. Under the applicable rule of procedure,

         [w]hen a motion for summary judgment is made and supported as
         provided in this rule, an adverse party may not rest upon the mere
         allegations or denials of the adverse party’s pleading, but the adverse
         party’s response, by affidavits or as otherwise provided in this rule,



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      must set forth specific facts showing that there is a genuine issue for
      trial.

Fed. R. Civ. P. 56(e).

      M r. Hinojos indicates that the timing of the events underlying his lawsuit is

suspicious. He points out that he was terminated around the same time that he

received this court’s decision in Hinojos I and while his Part 708 complaint was

pending. Neither of these events, however, supports an inference of

discrimination or retaliation in this case. As the district court noted, this court’s

affirmance in Hinojos I was filed two w eeks after the termination, and thus it

could not have played a role in the termination decision. Further, the pendency of

the Part 708 hearing is not relevant in this Title VII suit for two reasons. First,

M r. Hinojos’s amended complaint alleged retaliation for his EEOC activity, not

his Part 708 complaint. Second, Title VII’s anti-retaliation provision covers only

Title VII complaints; it does not extend protection to Part 708 complaints. See 42

U.S.C. § 2000e-3 (defining “unlawful employment practice” to include

discrimination because an employee “has made a charge . . . under this

subchapter”) (emphasis added). Thus, even if the termination were motivated by

the Part 708 complaint (which the agency hearing officer concluded was not the

case), such conduct would not be actionable under Title VII.

      If one disregards these two events cited by M r. Hinojos, one is left only

w ith the fact that the termination followed, by months and years, the EEOC



                                          -5-
complaints and the filing of and district court decision in Hinojos I. The district

court correctly concluded that, by themselves, these events were not close enough

in time to the termination to permit an inference of causation. See Hysten v.

Burlington N. and Santa Fe Ry. Co., 296 F.3d 1177, 1183-84 (10th Cir. 2002)

(holding that events occurring three months apart did not, without more, establish

causation). The district court properly granted summary judgment on the issue of

causation.

      Finally, M r. Hinojos appears dissatisfied with his attorney’s representation,

stating that his attorney “failed to acquire the appropriate deposition and

discoveries” and “failed to conduct an internal investigation.” Aplt. Br. at 5.

Because M r. Hinojos raised no such complaints before the district court, the issue

is waived. Hicks, 928 F.2d at 970. M oreover, even assuming the truth of the

accusations, a matter we do not decide, any such failures by counsel would not

justify reversing the grant of summary judgment. As this court previously has

recognized, “it is a fundamental principle of our representational legal system . . .

that a party acts through chosen counsel, whose carelessness or ignorance,

therefore, generally does not constitute grounds for relief for his client.” Sec.Nat’l

Bank of Enid, Okla. v. John Deere Co., 927 F.2d 519, 520 (10th Cir. 1991).




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The judgment of the district court is AFFIRMED.


                                          Entered for the Court


                                          M ary Beck Briscoe
                                          Circuit Judge




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