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

                             FOR THE TENTH CIRCUIT                           July 28, 2015
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
MARCIA L. JACKSON,

      Plaintiff - Appellant,
                                                           No. 15-3067
v.                                                (D.C. No. 2:13-CV-02626-CM)
                                                           (D. Kansas)
PARK PLACE CONDOMINIUMS
ASSOCIATION, INC.,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, LUCERO, and McHUGH, Circuit Judges.
                  _________________________________


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

unanimously that oral argument would not materially assist in 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.

      Marcia L. Jackson, proceeding pro se,1 filed suit against defendant Park Place

Condominiums Association, Inc. (Park Place), seeking damages for alleged violations


      *
         This order and judgment is not binding precedent, except under the doctrines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.
      1
        As Ms. Jackson is proceeding pro se, we construe her pleadings liberally and
hold them to a less stringent standard than formal pleadings drafted by an attorney.
of her civil rights. Specifically, Ms. Jackson claims that Park Place discriminated

against her on the basis of her race during her tenancy in one of its condominium

units. The district court granted summary judgment in favor of Park Place and, for

the reasons that follow, we affirm.

                                I.     BACKGROUND

      Ms. Jackson is an African-American woman who moved into the Park Place

Condominiums in May of 2011. Ms. Jackson did not own a unit, but instead rented a

condominium from Jake Hurley from April 2011 to February 2012. The

condominium complex is governed by a Home Owners’ Association (HOA).

      During Ms. Jackson’s tenancy at Park Place, there were a number of disputes

between Ms. Jackson and some of her neighbors about the noise coming from her

unit. One of her neighbors, Marcia Grazia Serra, lived directly below Ms. Jackson.

Ms. Grazia Serra filed a lawsuit against Ms. Jackson in the District Court of Johnson

County, Kansas, that resulted in a default judgement stating, Ms. Jackson “regularly

and intentionally engaged in or permitted offensive, improper and/or unlawful

activities with substantial certainty that such activities will interfere with [Ms. Grazia

Serra’s] use and enjoyment of her property.”

      The HOA had no involvement in the lawsuit. And although HOA

representatives attempted to mediate the noise disputes between Ms. Jackson and her

neighbors, the HOA did not fine or reprimand Ms. Jackson for the noise coming from


Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). We do not, however,
construct arguments or otherwise advocate on her behalf. Id.
                                            2
her unit. Ms. Jackson never attended an HOA meeting or presented the HOA with a

written grievance.

       Ms. Jackson has now filed a lawsuit claiming that Park Place and members of

its HOA Board of Directors (Board) illegally discriminated against her on the basis

of her race. Park Place moved for summary judgment, arguing that Ms. Jackson could

not produce sufficient evidence to persuade a jury that it discriminated against Ms.

Jackson because of her race.

       In opposition to summary judgment, Ms. Jackson submitted her own testimony

through an affidavit and two declarations, provided a police report of an incident at

the condominium, produced statements from her friend, Garla Williams, and her

daughters, Jaquita and Kedra Jackson,2 and presented some documents related to her

alleged damages.

       Ms. Jackson’s affidavit highlighted a handful of incidents she claimed

illustrated discriminatory activity and made general allegations that the HOA had

harassed her. Specifically, she claims that (1) it took three months for her name to be

placed on her mailbox, and shortly after it was placed there an unidentified actor took

her name plate down and placed it on the ground nearby; (2) it took more than three

months for her name to be displayed on the outside marquee of the building;

(3) unidentified Board members accused Ms. Jackson of playing “loud black music,”

       2
         In a case involving multiple individuals with the same last name, we would
ordinarily use first names or initials for ease of identification. See, e.g., United States
v. Hill, 786 F.3d 1254, 1257 n.1 (10th Cir. 2015). Because we rarely refer to Jaquita
Jackson and Kedra Jackson, we instead refer to the plaintiff as Ms. Jackson and use
full names when referring to her daughters.
                                             3
turning her TV volume up too high, speaking too loudly, flushing her toilet too often,

and making too much noise walking around the condominium; (4) her car was

vandalized; and (5) her landlord asked her to move out at the HOA’s request. In one

of her declarations, Ms. Jackson stated that her landlord, Mr. Hurley, believed that

these incidents occurred because of her race. Ms. Jackson also declared that she

informed Marcia Cooper, a Board member, about the problem with her mailbox. The

statements provided by Ms. Williams and both of Ms. Jackson’s daughters repeated

these allegations.3

      At some point during her tenancy at Park Place, Ms. Jackson had contacted the

police and complained that she was a victim of harassment and a hate crime. The

police report she produced to oppose summary judgment contained the officer’s notes

about statements made by Ms. Jackson during the officer’s investigation of Ms.

Jackson’s complaint. Ms. Jackson’s statements reiterated the allegations she later

included in her affidavit.

      The district court granted summary judgment to Park Place. It held that Ms.

Jackson had not presented any direct evidence of housing discrimination and that she

had failed to present enough evidence to make out a prima facie case of hostile

housing environment, as required by either 42 U.S.C. §§ 1981, 1982, or the Fair

Housing Act, 42 U.S.C. § 3604(h).


      3
         Kedra Jackson also claimed that hallway lights were turned off when her
mother moved into the apartment. Ms. Jackson dropped her claims about this incident
by the time of the Pretrial Order. As it was not addressed by the district court and Ms.
Jackson has not referenced this incident on appeal, we do not consider it further.
                                           4
      Ms. Jackson filed a “Motion to Alter and Amend Summary Judgment” after

the district court granted summary judgment in favor of Park Place. Park Place did

not timely respond, and the district court issued an order to show cause why Park

Place had failed to file a response to the motion. Counsel for Park Place explained

that the failure was due to an error with the court’s electronic filing system but that a

timely response had been mailed to Ms. Jackson. The district court exercised its

discretion to consider Park Place’s response.

      Ms. Jackson now appeals.

                                 II.    DISCUSSION

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

the same legal standard as applies in the district court.” Emcasco Ins. Co. v. CE

Design, Ltd., 784 F.3d 1371, 1378 (10th Cir. 2015). 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).

In reviewing a summary judgment ruling, we must “view the evidence and draw all

reasonable inferences therefrom in the light most favorable to the party opposing

summary judgment.” Reinhart v. Lincoln Cty., 482 F.3d 1225, 1229 (10th Cir. 2007)

(internal quotation marks omitted). To the extent that a nonmoving party offers

affidavits to oppose summary judgment, “[a]ffidavits must contain certain indicia of

reliability.” Ellis v. J.R.’s Country Stores, Inc., 779 F.3d 1184, 1201 (10th Cir. 2015).

“Unsubstantiated allegations carry no probative weight in summary judgment

proceedings . . . [they] must be based on more than mere speculation, conjecture, or

                                            5
surmise.” Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004) (citation

omitted).

       Ms. Jackson does not identify the federal statute she relies on to pursue her

housing discrimination claim. Therefore, like the district court, we assume she bases

her claim on either 42 U.S.C. § 1981, which prohibits racial discrimination in the

making, performance, modification, and termination of contracts, see Hampton v.

Dillard Department Stores, Inc., 247 F.3d 1091, 1101–02 (10th Cir. 2001), 42 U.S.C.

§ 1982, which prohibits racial discrimination in the sale and rental of property, or 42

U.S.C. § 3604(b) of the Fair Housing Act (FHA), which prohibits discrimination

against any person “in the terms, conditions, or privileges of sale or rental of a

dwelling, or in the provision of services or facilities in connection therewith because

of race, color, religion, sex, familial status, or national origin.”

       Ms. Jackson argues that Park Place created a hostile housing environment.

When analyzing claims of hostile housing environment, we have looked to decisions

addressing hostile work environment claims for guidance. Asbury v. Brougham, 866

F.2d 1276, 1279 (10th Cir. 1989). To make out a hostile work environment case, a

plaintiff must prove (1) she is a member of a protected group, (2) she was subject to

unwelcome harassment, (3) the harassment was based on her membership in the

protected class, and (4) the harassment was so severe, pervasive, or abusive that it

altered the conditions of employment. See Harsco Corp. v. Renner, 475 F.3d 1179,

1186 (10th Cir. 2007). “Applied to housing, a claim is actionable when the offensive

behavior unreasonably interferes with use and enjoyment of the premises.” Honce v.

                                             6
Vigil, 1 F.3d 1085, 1090 (10th Cir. 1993). Trivial or isolated manifestations of a

discriminatory environment are not actionable. Id. (citing Meritor Savings Bank v.

Vinson, 477 U.S. 57, 65 (1986) (hostile work environment); Hicks v. Gates Rubber

Co., 833 F.2d 1406, 1414 (10th Cir. 1987) (hostile work environment)). Rather,

harassing conduct must be severe or pervasive. Id.

      Although as an African-American, Ms. Jackson is a member of a protected

group, she cannot establish that she suffered harassment because of her membership

in that group. She has not claimed that Park Place or any of its Board members used

any ethnic or racial slurs against or around her, or that any of the alleged harassment

directly referenced her race. While she claims that an unidentified HOA member

accused her of playing “loud black music,” we agree with the district court that there

is nothing in the record indicating that her neighbors and the HOA’s concerns related

to the type of music she played. Rather, Ms. Grazia Serra’s lawsuit complained of the

volume and the time of day Ms. Jackson played the music.

      The only other direct evidence of racial discrimination Ms. Jackson offers is

her allegation that her landlord, Mr. Hurley—who is not an HOA Board member—

believed her problems at the condominium were because of her race. But even if

Mr. Hurley’s opinion could support her claim, Ms. Jackson did not offer Mr.

Hurley’s sworn statement. Instead, she provided her own declaration purporting to

convey his opinion about the motives of third parties. This is inadmissible hearsay

and cannot be used to defeat summary judgment. See Johnson v. Weld Cty., Colo.,

594 F.3d 1202, 1208–10 (10th Cir. 2010) (holding that a plaintiff failed to make out a

                                           7
Title VII claim of sex discrimination on the basis of direct evidence because the

evidence was inadmissible hearsay); Wright-Simmons v. City of Okla., 155 F.3d

1264, 1268 (10th Cir. 1998) (“It is well settled in this circuit that we can consider

only admissible evidence in reviewing an order granting summary judgment.”).

Similarly, Ms. Jackson’s statements contained in the police report constitute

inadmissible hearsay that cannot be used to defeat summary judgment.4 See United

States v. Caraway, 534 F.3d 1290, 1295 (10th Cir. 2008) (“Ordinarily a prior

statement by a testifying witness cannot be used at trial. If offered for the truth of the

matter asserted, it is inadmissible hearsay unless” an exception to the hearsay rule

applies.).

       Even assuming Ms. Jackson could show that Park Place’s conduct was

motivated by race, she cannot show the harassment altered the conditions of her

housing by unreasonably interfering with her use and enjoyment of the premises.

Whether an environment is illegally hostile or abusive “can be determined only by

looking at all the circumstances, and factors may include the frequency of the

discriminatory conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it unreasonably interferes

with [the use and enjoyment of the premises].” DiCenso v. Cisneros, 96 F.3d 1004,

1008 (7th Cir. 1996). Ms. Jackson has identified five incidents of unwelcome

conduct: (1) it took three months for her name to be placed on her mailbox; (2) her

       4
         Nothing in the police report indicates that the officer spoke with anyone other
than Ms. Jackson or that the officer otherwise investigated Ms. Jackson’s harassment
allegations.
                                            8
name plate was ripped off her mailbox shortly thereafter; (3) it took three months for

her name to be placed on the outside marquee of the building; (4) the “Deville” decal

on her Cadillac was stolen; and (5) Ms. Grazia Serra complained about noise coming

from Ms. Jackson’s unit.5

      We agree with the district court that these facts do not rise to the level of

unlawful harassment. While there may have been a delay in placing Ms. Jackson’s

name on her mailbox and on the marquee, Ms. Jackson has offered no evidence that

the HOA’s delay in her case was any longer than it was for other residents, that the

HOA delayed because of her race, that a three-month delay is unreasonable, or even

that her lease with Mr. Hurley and his arrangement with the HOA made it responsible

for placing her name in these locations. Nor do the noise complaints demonstrate

harassment. According to the lawsuit, Ms. Jackson unreasonably interfered with Ms.

Grazia Serra’s use and enjoyment of her property. Restricting Ms. Jackson to lawful

noise levels does not unreasonably alter the conditions of her housing.

      Ms. Jackson also claims the removal of her nameplate and the theft of the

“Deville” decal from her car constitute direct incidents of harassment. Yet she offers

no evidence of when or where the decal was stolen or how or why the nameplate was

removed. Even assuming this conduct was racially motivated, she has failed to show


      5
        While Ms. Jackson also alleges that Mr. Hurley asked her to move out at the
HOA’s request, Ms. Jackson has again failed to offer admissible evidence of this fact.
Ms. Jackson’s testimony about what Mr. Hurley told her is inadmissible hearsay and
cannot be considered at summary judgment. See Johnson v. Weld Cty., Colo., 594
F.3d 1202, 1208–10 (10th Cir. 2010); Wright-Simmons v. City of Okla. City, 155 F.3d
1264, 1268 (10th Cir. 1998).
                                           9
that the HOA was responsible for it. Moreover, these isolated and relatively minor

incidents over months of time are insufficient to establish a hostile housing

environment. See Morris v. City of Colo. Springs, 666 F.3d 654, 665–69 (10th Cir.

2012) (holding three isolated incidents combined with allegations that a supervisor

yelled at the plaintiff about the quality of her work, without context for the

comments, did not establish a hostile work environment); Penry v. Fed. Home Loan

Bank of Topeka, 155 F.3d 1257, 1262–63 (10th Cir. 1998) (holding that summary

judgment in favor of the defendant was properly granted on a hostile work

environment claim where a plaintiff complained of isolated incidents that occurred

over a four-year period, most of which did not occur because of her sex); Ellis v.

CCA of Tenn. LLC, 650 F.3d 640, 648–49 (7th Cir. 2011) (holding three isolated

incidents that were not “extremely serious” did not support a hostile work

environment claim). For these reasons, the district court properly granted summary

judgment to Park Place.

      Last, Ms. Jackson takes issue with the district court’s consideration of Park

Place’s response to her Motion to Alter and Amend Summary Judgment. It is unclear

whether she is arguing that the district court’s favorable ruling displayed judicial bias

towards Park Place or that the district court exceeded its discretion in considering the

late response. We reject both arguments. “Adverse rulings alone do not demonstrate

judicial bias.” Bixler v. Foster, 596 F.3d 751, 762 (10th Cir. 2010). And district

courts are entitled to a great deal of discretion in deciding whether to consider

untimely motions. See Essence, Inc. v. City of Fed. Heights, 285 F.3d 1272, 1288

                                           10
(10th Cir. 2002). The district court did not exceed its discretion in considering the

untimely response here, particularly because Park Place’s delay was caused by

procedural irregularities with the court’s electronic filing process.

                                III.   CONCLUSION

      For the foregoing reasons, we AFFIRM the decision of the district court

granting Park Place summary judgment.

                                             Entered for the Court



                                             Carolyn B. McHugh
                                             Circuit Judge




                                           11
