                                                                           F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 31 2003
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

 GILBERT ROMERO,

               Plaintiff - Appellant,                    No. 01-1488
          v.                                            (D. Colorado)
 CITY AND COUNTY OF DENVER                          (D.C. No. 99-B-1095)
 DEPARTMENT OF SOCIAL
 SERVICES,

               Defendant - Appellee.


                             ORDER AND JUDGMENT         *




Before BRISCOE , ANDERSON , and LUCERO , Circuit Judges.




      Plaintiff-appellant Gilbert Romero sued his former employer, the City and

County of Denver Department of Social Services (DSS), alleging that DSS had

discriminated and retaliated against him in violation of the Americans with

Disabilities Act of 1990, 42 U.S.C. § 12101   et seq . (ADA), and that he was

subjected to a hostile work environment and to sex discrimination and retaliation


      *
       This order and judgment is not binding precedent, except under the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.
in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000     et seq .

(Title VII).   1
                   The district court granted summary judgment to DSS on all claims,

and Mr. Romero appeals.

       Before hearing oral argument in this case, we ordered supplemental

briefing on the issues of whether, in the district court, Mr. Romero waived the

matter of amendment of his complaint in light of      Board of Trustees v. Garrett   ,

531 U.S. 356 (2001), and whether Mr. Romero made a sufficient showing of a

hostile work environment and/or retaliation to survive a motion for summary

judgment. After reviewing de novo the arguments of the parties, the record on

appeal, and the relevant law, we affirm.

       The facts of this case are well-known to the parties and will be repeated

here only as necessary for our analysis. Plaintiff was employed as a general

management assistant III and was supervised by various women. His complaint

alleged that he was subjected to a sexually hostile work environment as evidenced

by belligerent comments from a co-worker, a threatening banner taped across his

office door, and handouts that ridiculed and demeaned men. Mr. Romero alleged

that, when he attempted to file a grievance against the co-worker, he was initially

rebuffed by his supervisor. Mr. Romero later filed a timely grievance, but the



       1
           Mr. Romero also brought other claims which are not the subject of this
appeal.

                                             -2-
grievance was allegedly dismissed and was “superceded by [DSS’s] efforts to

disqualify or terminate him for other reasons.” Aplt’s Opening Br. at 6.

Mr. Romero was eventually disqualified from working at DSS after unexplained

fainting episodes resulted in medical restrictions that prevented him from

working.



                              ADA Discrimination Claim

       In January 2001, the district court granted summary judgment to DSS on

Mr. Romero’s Title VII sexual harassment and sex discrimination claims and on

his Title VII and ADA retaliation claims but refused to grant summary judgment

on the ADA discrimination claim. The court later ordered the case

administratively closed pending the Supreme Court’s decision in     Garrett , 531 U.S.

356.

       Upon the decision in   Garrett , the court granted DSS’s motion to reactivate

the case and its motion for summary judgment on the ADA discrimination claim.

We review the grant of summary judgment de novo under the familiar standard:

       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 matter of law.” Fed. R. Civ. P. 56(c). When applying this
       standard, we view the evidence and draw reasonable inferences
       therefrom in the light most favorable to the nonmoving party.


                                          -3-
Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs.        ,

165 F.3d 1321, 1326 (10th Cir. 1999).

       In Garrett , the Court held that states enjoy Eleventh Amendment immunity

against suits for money damages brought by state employees for violation of the

ADA. Garrett , 531 U.S. at 360. The protection of the Eleventh Amendment

extends to entities considered arms of the state.    Unified Sch. Dist. No. 480

v. Epperson , 583 F.2d 1118, 1121 (10th Cir. 1978). “In Colorado, municipal

departments of social services are in reality arms of the state and therefore

immune from suit in federal court.”      Cobb v. City & County of Denver , 761 F.

Supp. 105, 106 (D. Colo. 1991).       Garrett thus makes it clear that Mr. Romero’s

suit for money damages against DSS cannot be maintained.

       The Court in Garrett , however, noted that “Title I of the ADA still

prescribes standards applicable to the States. Those standards can be enforced by

the United States in actions for money damages, as well as by private individuals

in actions for injunctive relief under   Ex parte Young , 209 U.S. 123 [] (1908).”

Garrett , 531 U.S. at 374 n.9. The district court, analyzing circuit precedent and

Mr. Romero’s complaint and pre-trial order, concluded that Mr. Romero had

given no indication that he was entitled to prospective injunctive relief for

violations of the ADA.     See Calderon v. Kan. Dep’t of Social & Rehab. Servs    ,

181 F.3d 1180, 1183 (10th Cir. 1999) (holding threshold question to be whether


                                             -4-
complaint gave any indication that the plaintiff might be entitled to injunctive

relief). It therefore granted DSS’s motion for summary judgment on the ADA

discrimination claim.

       In opposing this result and citing    Frazier v. Simmons , 254 F.3d 1247 (10th

Cir. 2001), Mr. Romero argues that his action can fairly be characterized as one

for prospective injunctive relief and should not have been dismissed. We find

Frazier distinguishable from this case. In     Frazier , the complaint asked for “just

and equitable relief,” and the pretrial order listed “the nature and extent of any

equitable relief” as an issue of law.   See id. at 1255. Mr. Romero’s complaint,

however, does not even mention the word “equitable” in the relief requested on

the ADA claims, and the pretrial order mentions the ADA claims but does not

request any specific relief for the alleged violations. Under these circumstances,

we agree with the district court that Mr. Romero failed to give any indication that

he was entitled to injunctive relief.

       Even if, however, we were to agree with Mr. Romero’s interpretation of his

claim, we would still hold his claim barred. “Under the      Ex parte Young legal

fiction, when an official of a state agency is sued in his official capacity for

prospective equitable relief, he is generally not regarded as ‘the state’ for

purposes of the Eleventh Amendment and the case may proceed in federal court.”

ANR Pipeline Co. v. Lafaver , 150 F.3d 1178, 1188 (10th Cir. 1998). The         Ex


                                             -5-
parte Young exception, however, is a narrow one.           Elephant Butte Irrigation Dist.

v. Dep’t of Interior , 160 F.3d 602, 607 (10th Cir. 1998). “[I]t ‘has no application

against the States and their agencies, which are [immune from suit] regardless of

the relief sought.’”   Buchwald v. Univ. of N.M. Sch. of Med.         , 159 F.3d 487, 495

(10th Cir. 1998) (emphasis added) (quoting           P.R. Aqueduct & Sewer Auth. v.

Metcalf & Eddy, Inc. , 506 U.S. 139, 146 (1993));          see also Elephant Butte , 160

F.3d at 607 ( Ex parte Young doctrine applies only when “lawsuit involves an

action against state officials, not against the state”);     ANR Pipeline , 150 F.3d at

1187 (any form of relief against state agency, even solely prospective injunctive

relief, is barred).

       Mr. Romero has sued only the state agency with whom he was employed.

Again in contrast to the plaintiff in    Frazier , he did not name any state official in

any capacity. Accordingly, he may not proceed under the            Ex parte Young

doctrine, even assuming that the equitable relief he now seeks would otherwise be

available. Thompson v. Colorado , 278 F.3d 1020, 1025 n.2 (10th Cir. 2001),            cert.

denied , 122 S. Ct. 1960 (2002).

       Mr. Romero urges this court to allow him to amend his complaint. We

have recognized the possibility that, if so inclined, this court would have the

power to grant such a request.      Thompson v. Colorado , 278 F.3d 1020, 1025 n.2

(10th Cir. 2001), cert. denied , 122 S. Ct. 1960 (2002). We note, however, that


                                               -6-
Mr. Romero presumably could have requested leave to amend his complaint in the

district court and apparently did not avail himself of that opportunity. We reject

Mr. Romero’s contention that mentioning the possibility of amendment in a

footnote in his response to defendant’s motion for summary judgment was

tantamount to a formal motion to amend. The failure to file a proper motion to

amend distinguishes Mr. Romero’s case from           Gregory v. Administrative Office of

the Courts , 168 F. Supp. 2d 319 (D.N.J. 2001), cited in plaintiff’s supplemental

brief. Under these circumstances, we will not accede to Mr. Romero’s request to

amend or remand for this purpose.        See Thompson , 278 F.3d at 1025 n.2. (denying

plaintiffs’ motion to amend complaint to add an individual defendant where

plaintiffs “identified no . . . equitable consideration justifying their eleventh-hour

request”). Because in this circuit, a defendant’s Eleventh Amendment immunity

deprives the district court of jurisdiction,    id. at 1023, Mr. Romero’s ADA claim

was properly dismissed.



                           Hostile Work Environment Claim

       The district court granted summary judgment on Mr. Romero’s hostile work

environment claim, holding, as a matter of law, that the conduct was

insufficiently severe or pervasive to create an abusive environment under Title

VII. After reviewing the record, we agree.


                                               -7-
       “[A] plaintiff may establish a violation of Title VII by proving that

discrimination based on sex has created a hostile or abusive work environment.”

Meritor Sav. Bank v. Vinson , 477 U.S. 57, 66 (1986). Congress intended Title

VII “to strike at the entire spectrum of disparate treatment of men and women in

employment, which includes requiring people to work in a discriminatorily hostile

or abusive environment.”       Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21 (1993)

(quotations omitted). In order to be actionable, the sexual harassment must be so

severe or pervasive that it alters the conditions of the job and results in an

“abusive working environment.”        Meritor , 477 U.S. at 67. In order to prevail,

Mr. Romero must show that the harassment was pervasive or both objectively and

subjectively offensive.    See Smith v. Northwest Fin. Acceptance, Inc.     , 129 F.3d

1408, 1413 (10th Cir. 1997). He must also show that the harassment was

gender-based or stemmed from anti-male bias.         See Bolden v. PRC Inc. , 43 F.3d

545, 551 (10th Cir. 1994) (applying standard in racial discrimination case). All

of the circumstances must be examined before a court can conclude that the

environment is one that a reasonable person would find abusive or hostile.

Harris , 510 U.S. at 21, 23.

       Mr. Romero contends that he has raised genuine issues of material fact

regarding a hostile work environment by identifying the following acts or

conduct. On one of his first days at DSS, Mr. Romero encountered Ms. Gerri


                                             -8-
Domingo, a co-worker from a different department, who stated, “I’m the biggest

bitch that you will ever meet in your life and at Social Services, and I’ll decide if

I’m going to like you or not, and if I decide that I don’t, I’ll make sure that you’re

out of here.” Aplt.’s App. at 228. A banner was taped across Mr. Romero’s

office door reading, “Beware witches work here—do not cross them.”         Id. at 232.

Printed “jokes” were left on Mr. Romero’s desk, including a list of “dumb men

jokes,” a cartoon referencing a dog named Lucky who had been castrated, and a

cartoon depicting a bearing ball, followed by a ball bearing, and ending with a

drawing of two bears copulating with the subtitle “bear balling.” Also included in

the record is a list of crude phrases “cleaned up” to be less offensive and a

narrative about winters in Utah. Mr. Romero found the items offensive and

testified that “it made it harder to work in a hostile environment.”   Id. at 120.

       The district court found that the acts complained of were insufficiently

severe or pervasive to create an abusive environment under Title VII. It further

found the jokes, while personally offensive to Mr. Romero, were not objectively

offensive. Noting that most of the conduct Mr. Romero complained of was not of

a sexual nature, the court concluded that Ms. Domingo’s conduct was not

motivated by anti-male bias.

       We agree with the district court that Mr. Romero has failed to raise a

genuine issue of material fact concerning the existence of a hostile work


                                             -9-
environment. The references to witches and to being a “bitch,” are not

objectively anti-male; indeed, such epithets are typically perceived to be anti-

female. The dumb men jokes and the reference to Lucky the Dog do not

constitute the “steady barrage of opprobrious [anti-male] comments” which would

raise the specter of a hostile environment.      See Bolden , 43 F.3d at 551. The other

incidents Mr. Romero complains of did not have any particular gender-based

connotation at all. Nor has Mr. Romero demonstrated that gender-based negative

statements and conduct were sufficiently pervasive to constitute an abusive

workplace. The district court correctly granted summary judgment to DSS on the

hostile work environment claim.



                               Title VII Discrimination

       Mr. Romero argues that the district court erred in granting summary

judgment on this claim because his work environment was dominated by women

and he had shown his termination to be pretextual. We disagree.

       In Notari v. Denver Water Department          , 971 F.2d 585, 589 (10th Cir. 1992),

this court held that

       a Title VII disparate treatment plaintiff who pursues a reverse
       discrimination claim, and seeks to obtain the benefit of the
       McDonnell Douglas [Corp. v. Green , 411 U.S. 792 (1973)]
       presumption, must, in lieu of showing that he belongs to a protected
       group, establish background circumstances that support an inference


                                              -10-
      that the defendant is one of those unusual employers who
      discriminates against the majority.

Apparently in an attempt to meet this requirement, Mr. Romero states that his

office was dominated by women, all of his supervisors were women, and the

harassment was tolerated by the women because they were all friends.   2



      After reviewing the record, we agree with the district court that

Mr. Romero has failed to state a prima facie case of gender discrimination.

Specifically, he has not shown that DSS was the unusual employer who

discriminated against males. Two males participated in the decision to disqualify

him from employment, and Mr. Romero points to no evidence that other males

were discriminated against by DSS. Alternatively, he has not provided direct

evidence of discrimination or indirect evidence that, but for his gender, he would

not have been disqualified.   See Notari , 971 F.2d at 590.


      2
       Mr. Romero must make the Notari showing only if he wishes to take
advantage of the McDonnell Douglas presumption available to plaintiffs who
make a prima facie case under McDonnell Douglas. If Mr. Romero is not
proceeding under McDonnell Douglas, he is free to make out his prima facie case
by presenting “direct evidence of discrimination, or indirect evidence sufficient to
support a reasonable probability, that but for [his] status the challenged
employment decision would have favored [him].” Notari v. Denver Water Dep’t,
971 F.2d 585, 589 (10th Cir. 1992).

      The district court apparently assumed that Mr. Romero wished to proceed
under McDonnell Douglas, although he did not take that stance in his brief in
opposition to defendant’s motion for partial summary judgment. Indeed,
Mr. Romero’s brief in the district court did not even discuss the Title VII gender
discrimination claim as a separate claim.

                                         -11-
                                Title VII Retaliation Claim

       In order to state his prima facie case of Title VII retaliation, Mr. Romero

must prove:

       (1) protected opposition to discrimination or participation in a
       proceeding arising out of discrimination; (2) adverse action by the
       employer; and (3) a causal connection between the protected activity
       and the adverse action.

Sauers v. Salt Lake County      , 1 F.3d 1122, 1128 (10th Cir. 1993). The district

court found that when Mr. Romero complained to his supervisors and filed a

complaint against Ms. Domingo, he engaged in protected activity. It further

found that when Mr. Romero lost supervisory responsibilities he suffered an

adverse employment action. The district court finally concluded, however, that

Mr. Romero had failed to provide any evidence that he had lost supervisory

responsibilities, was denied a promotion, and was eventually terminated because

of his complaints to his supervisors. Mr. Romero’s sole argument regarding his

retaliation claim is that his   termination was linked to the protected activity of

complaining about the perceived gender-based harassment.

       As the district court correctly observed, Mr. Romero’s statement that the

hearing to gather information relevant to his possible disqualification was a “set

up” was insufficient to meet his burden on summary judgment to show a causal

link between his protected activity and his termination. Further, while a temporal

link between protected activity and termination can be evidence of retaliation, the

                                            -12-
five months here, by itself, is insufficient to make out a prima facie case of

retaliation. See Richmond v. ONEOK, Inc. , 120 F.3d 205, 209 (10th Cir. 1997).

      In his opening brief, Mr. Romero implies that his supervisor, Ms. Miles,

told him he would be fired for filing his grievance. He offers this as evidence

that his termination was retaliatory. Mr. Romero cites to the record out of

context.

      The evidence was that Ms. Miles’ comment was made in relation to

a performance evaluation, not to Mr. Romero’s ultimate termination. Mr. Romero

testified in deposition that “after I walked out of my annual evaluation and

walked back to the office with Ms. Judy Miles . . . she said, ‘I hope you don’t

hold that evaluation against me, but I told you, when you filed against Gerri, you

were going to pay for it.’” Aplt’s App. at 240 (Romero dep. 71:19-25). The

second record cite also refers to Mr. Romero’s sub-standard evaluation, not to his

termination:

      I had just gotten reamed by Ms. Sparrow and Ms. Miles on my annual
      appraisal. I mean, they tore me to pieces. And then I walked right
      back to the office with Judy, and she said, “See. See what happens
      when you go against a woman here? I told you not to file against
      Gerri.”

Id. at 241 (Romero dep. 73:3-6).

      Although Mr. Romero’s second performance evaluation was lower than his

first, the evaluations were done by two different teams of supervisors, both scores


                                         -13-
placed Mr. Romero in the “Meets Expectations” category, and neither score went

into Mr. Romero’s permanent personnel file. The district court thus found that

the lower performance evaluation was not an adverse employment action because

it did not result in a significant change in Mr. Romero’s employment status.

Mr. Romero does not dispute this point. While Mr. Romero’s brief seems to offer

direct proof of retaliation, such contention is unsupported by the evidence.

      The judgment of the United States District Court for the District of

Colorado is AFFIRMED.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




                                        -14-
