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

                             FOR THE TENTH CIRCUIT                         August 4, 2017
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
ROGER J. LUCAS,

      Plaintiff - Appellant,

v.                                                        No. 16-1378
                                                 (D.C. No. 1:15-CV-00713-CBS)
THE OFFICE OF THE COLORADO                                  (D. Colo.)
STATE PUBLIC DEFENDER, a public
entity; DOUGLAS K. WILSON,
individually and in his official capacity as
the Colorado State Public Defender;
CARRIE THOMPSON, individually and in
her official capacity as the Office Head for
the Colorado Springs Public Defender’s
Regional Office,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges.
                  _________________________________

      Roger J. Lucas, an attorney representing himself pro se, filed a complaint

asserting claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1983,


      *
        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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
and state tort law against his former employer, the Office of the Colorado State

Public Defender (Defender’s Office); Douglas K. Wilson, the Colorado State Public

Defender; and Carrie Thompson, the head of the Colorado Springs Regional Office of

the Defender’s Office. Lucas was fired after he violated a corrective action

prohibiting him from unwanted contact with a younger, female attorney in the

Defender’s Office. He alleges that his termination was based on race, reverse-sexual-

discrimination, and prohibited retaliation; that his Equal Protection rights were

violated; and that the individual defendants interfered with a post-termination

employment opportunity. On cross-motions for summary judgment, the district court

denied Lucas’s motion and granted the defendants’ motion. Lucas appeals, and we

affirm.

                                           I.

      The Defender’s Office hired a new Deputy Public Defender, Catherine

Peterson, in June 2013, shortly after she graduated from law school. Lucas, a Deputy

Public Defender hired in 2007, immediately began coming to her office daily to talk.

Lucas texted Peterson, saying he thought they would be great together and wanting

an opportunity to get to know her. Peterson told Lucas his texts were inappropriate

and he should only talk to her about work. Lucas continued sending her non-work-

related messages on Facebook. He told her he had “check[ed] her out” by looking at

her photos, comments, and likes on Facebook; had “completely” fallen for her, “a

thousand times harder than” before; thought they “would complement each other



                                           2
well”; and hoped she would unblock him from her Facebook page. Aplt. App. Vol.

II-A at 430.

      In July 2013, Peterson told her supervisor, Michelle Newell, that Lucas’s

attention made her uncomfortable, and that she wanted him to leave her alone.

Newell and defendant Thompson spoke with Lucas’s supervisor, who, in turn, met

with Lucas and told him to keep all future communications with Peterson strictly

work-related. But Lucas continued to have non-work-related contact with Peterson.

For example, he spoke to her aggressively and drunkenly at a hotel bar after a work

conference. When Lucas refused to leave Peterson alone, a supervisor escorted him

out of the bar and later told him he was not to call, text, or e-mail Peterson unless it

was work-related.

      Lucas persisted. He continued to send Peterson non-work-related messages on

Facebook and sent her flowers. In one message, Lucas said, “I just wanted to see you

happy –whether that be by congratulating you on your trial wins, giving you a card,

or giving you anonymous flowers.” Id. at 432. After an office party, Lucas came

into Peterson’s office without knocking, and made lewd comments when he saw her

there in the presence of a male co-worker. Peterson told Lucas she would report him

if he came in her office again without permission. A few weeks later, Lucas sent an

e-mail to all staff saying he had brought back candy from a trip but “[i]f I didn’t

leave any on your desk, it’s cuz I want you to stop by my office for a kiss, or maybe

something more . . . .” Id. at 490. Peterson interpreted this as directed at her because

Lucas did not leave candy on her desk. Peterson reported to Newell that Lucas was

                                            3
continuing unwanted communications with her, that she was very upset, and that she

wanted no further contact with him.

      Thompson met with Lucas, who admitted he was attracted to Peterson. In

January 2014, Thompson issued Lucas a formal corrective action, instructing him not

to communicate with Peterson in any way and to direct all work-related

communications with Peterson through another attorney. The corrective action

warned Lucas he was subject to dismissal if he violated its no-contact directive.

Even so, Lucas directly contacted Peterson about a work matter in May 2014, without

going through another co-worker, in violation of the corrective action.

      That same month, a co-worker informed Thompson that Lucas believed the

corrective action was unfair, thought Peterson was creating a hostile work

environment and wanted her fired, and threatened to contact the Equal Employment

Opportunity Commission (EEOC). Lucas then spoke directly with Thompson, stating

he wanted Thompson to lift the no-contact restrictions and fire Peterson, and that he

would report her if she did not do so. Thompson refused to lift the restrictions or fire

Peterson and told Lucas she had arranged for a mediator to assist in resolving this

conflict. Before the mediation occurred, however, Lucas again violated the

no-contact directive by e-mailing Peterson to ask for her assistance on a sexual-

assault case. Peterson was upset and forwarded the e-mail to Thompson. When

Thompson confronted Lucas to ask why he had flagrantly violated the no-contact

directive, Lucas said the no-contact directive was discriminatory, challenged the

accuracy of Peterson’s allegations, and said that Peterson’s body language told him

                                           4
she was okay with contact. Thompson told Lucas the corrective action would remain

in place. Lucas said if his concerns were not addressed he would contact the EEOC

to intervene. Thompson told him to take whatever action he felt was necessary.

      The next day, Thompson sent a detailed letter to defendant Wilson describing

Lucas’s unwelcome communications with Peterson and his failure to comply with the

no-contact directive. Thompson recommended that Wilson terminate Lucas’s

employment “due to [his] unwillingness to abide by the restrictions as laid out in the

corrective action.” Id. at 352. Wilson terminated Lucas that day. Lucas later applied

for a contract position with the Office of Alternative Defense Counsel (OADC), but

was not hired.

      After exhausting his remedies and receiving a right-to-sue letter from the

EEOC, Lucas filed suit against defendants, asserting three Title VII claims against

the Defender’s Office: race discrimination (he is a Filipino-American), reverse-

sexual-discrimination, and retaliation. He asserted two claims against Thompson and

Wilson in their individual and official capacities: a § 1983 claim asserting race and

gender discrimination under the Equal Protection Clause of the Fourteenth

Amendment and a state-law tortious-interference claim, alleging Thompson and

Wilson had interfered with his opportunity to be hired by OADC. The parties

consented to proceed before a magistrate judge and filed cross-motions for summary

judgment. The magistrate judge denied Lucas’s motion and granted defendants’

motion. Lucas appeals.

                                          II.

                                           5
      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). We review de novo a magistrate judge’s

summary-judgment decisions, drawing all reasonable inferences in the non-moving

party’s favor. Fox v. Transam Leasing, Inc., 839 F.3d 1209, 1213 (10th Cir. 2016)

(treating cross-motions for summary judgment separately and viewing the evidence

in the light most favorable to each non-moving party).

      A. Title VII and Equal Protection Discrimination Claims. In McDonnell

Douglas Corporation v. Green, 411 U.S. 792, 802-05 (1973), the Supreme Court set

forth a three-part burden-shifting framework to analyze circumstantial-evidence Title

VII discrimination claims. The McDonnell Douglas framework applies as well to

§ 1983 claims based on allegations of discrimination under the Equal Protection

Clause. English v. Colo. Dep’t of Corrs., 248 F.3d 1002, 1007 (10th Cir. 2001).

Under this framework, a plaintiff must first establish a prima facie case of

discrimination by demonstrating that he is a member of a protected class and suffered

an adverse employment action under circumstances giving rise to an inference of

discrimination. DePaula v. Easter Seals El Mirador, 859 F.3d 957, 970 (10th Cir.

2017). In a reverse-gender-discrimination case, a plaintiff “must, in lieu of showing

that he belongs to a protected group, establish background circumstances that support

an inference that the defendant is one of those unusual employers who discriminates

against the majority.” Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d

1193, 1201 (10th Cir. 2006) (internal quotation marks omitted).

                                           6
      If the plaintiff establishes a prima facie case of discrimination, the defendant

must then articulate a legitimate, nondiscriminatory reason for the adverse

employment action. DePaula, 859 F.3d at 970. This circuit has held that “[t]he

defendant’s burden is exceedingly light, as its stated reasons need only be legitimate

and non-discriminatory on their face.” Id. (internal quotation marks and citation

omitted). If the defendant carries this burden, the burden shifts back to the plaintiff

to demonstrate by a preponderance of the evidence that the defendant’s proffered

reason for the employment decision is not the true reason, but a pretext for

discrimination. Id.

      The magistrate judge ruled that the corrective action did not constitute an

adverse employment action, but that the termination did. He assumed for the sake of

argument that Lucas had established a prima facie case of race and reverse-gender-

discrimination as to his termination. He ruled that the defendants had met their

McDonnell Douglas burden because they had consistently articulated a legitimate,

non-discriminatory reason for terminating Lucas—namely, his repeated and

unwanted contact with Peterson and his insubordination and unwillingness to comply

with the corrective action. The magistrate judge ruled Lucas had failed to establish a

genuine issue of material fact that the reasons articulated by the defendants for

terminating him were pretext for discrimination; thus, he granted the defendants’

motion for summary judgment.

      On appeal, Lucas argues the magistrate judge erred in ruling that the

imposition of the corrective action was not an adverse employment action. He also

                                            7
challenges the application of the McDonnell Douglas framework, arguing that

employer defendants should be required to prove that their proffered reason for an

adverse action is true before the burden shifts to plaintiffs to show pretext.

             1. Adverse Employment Action. An “[a]dverse employment action”

for purposes of a discrimination claim is limited “to adverse actions that affect

employment or alter the conditions of the workplace.” Piercy v. Maketa, 480 F.3d

1192, 1203 (10th Cir. 2007) (quoting Burlington N. & Santa Fe Ry. v. White,

548 U.S. 53, 62 (2006) (alteration omitted). These actions involve 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.” Id. (internal quotation marks omitted).

      Lucas, citing Annett v. University of Kansas, 371 F.3d 1233, 1239 (10th Cir.

2004), argues that “[a]cts that carry a significant risk of humiliation, damage to

reputation, and a concomitant harm to future employment prospects may be

considered adverse actions,” Aplt. Opening Br. at 27. He claims, without evidentiary

support, that the corrective action subjected him to potential humiliation as a sexual

predator. But his argument rests on a flawed legal premise: Annett defined an

“adverse employment action” for purposes of a Title VII retaliation claim, which is

broader than the definition of an “adverse employment action” for a Title VII

discrimination claim. See Burlington N., 548 U.S. at 61-65, 68 (holding that Title

VII’s anti-retaliation provision prohibits any employer action that might “dissuade[ ]

a reasonable worker from making or supporting a [discrimination] charge” and thus,

                                            8
covers a broader range of employer conduct than its substantive discrimination

provision); see also Piercy, 480 F.3d at 1203 (explaining the Burlington Northern

made clear that the contours of an adverse action for discrimination claims are

narrower than those for retaliation claims). We have held that a disciplinary or

corrective action “standing alone, is not an adverse employment action.” Haynes v.

Level 3 Commc’ns, LLC, 456 F.3d 1215, 1224 (10th Cir. 2006). “A written warning

may be an adverse employment action only if it effects a significant change in the

plaintiff’s employment status.” Id. Lucas presented no evidence that the corrective

action had any effect on his salary or benefits, or that it caused a significant adverse

change in the terms and conditions of his employment. The magistrate judge did not

err in ruling the corrective action was not an adverse employment action.1

             2. McDonnell Douglas Burdens. Lucas argues we should overturn this

Circuit’s long-held precedent that under the McDonnell Douglas framework

employers need only articulate a reason for the challenged employment action that is


      1
         Lucas argues that the imposition of the corrective action is an adverse
employment action because it violated his constitutional freedom of association to
interact with co-workers and to pursue intimate human relationships. Whether a
potential, clearly unwanted, dating relationship could qualify for constitutional
protection is entirely irrelevant, however, to the issue of whether the corrective action
qualifies as an adverse employment action under Title VII. Lucas also argues for the
first time on appeal that the corrective action was an adverse employment action
because it violated his procedural due-process rights. This argument is as frivolous
as his freedom-of-association theory and suffers from the additional defect of not
having been raised below. Lucas also attempts several other due-process arguments
in his Opening Brief, which we will not address because he did not assert any due-
process claim in his complaint. See Davis v. Clifford, 825 F.3d 1131, 1137 n.3
(10th Cir. 2016) (refusing to consider claims not presented in complaint).

                                            9
legitimate and nondiscriminatory on its face. He argues employers should instead be

required to show their proffered reasons are true. Lucas does not challenge the

magistrate judge’s ruling that he failed to present evidence of pretext. Instead, he

argues that under his proposed application of McDonnell Douglas, the magistrate

judge should never have shifted the burden back to him to show pretext because the

defendants failed to present evidence showing that their reasons for terminating him

were true.

      The Supreme Court settled this debate almost forty years ago, holding that

“[t]he defendant need not persuade the court that it was actually motivated by the

proffered reasons.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254

(1981). The Court reaffirmed this holding more recently in Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133 (2000), again stating the defendant’s

“burden is one of production, not persuasion; it ‘can involve no credibility

assessment.’” Id. at 142 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509

(1993).2 Moreover, our Circuit has repeatedly and recently held that a defendant

need only proffer a reason that is legitimate and non-discriminatory on its face. E.g.,

DePaula, 859 F.3d at 970 (defendant’s “reasons need only be legitimate and

non-discriminatory on their face” (internal quotation marks omitted)).


      2
        Lucas also cites as support a Hawaii Supreme Court case that modified the
test adopted in McDonnell Douglas to analyze a state anti-discrimination statute.
A state court interpreting a state statute does not, as the magistrate judge correctly
observed, control our interpretation of Title VII.


                                           10
      Lucas asks us to abandon this precedent, arguing that holding employers to an

“exceedingly light” step-two burden undermines the entire framework, as it permits

the employer to meet its burden with mere conclusory statements and irrelevant

information. He notes that some have criticized McDonnell Douglas, citing generally

Timothy M. Tymkovich, The Problem with Pretext, 85 Denv. U. L. Rev. 503 (2008).

But McDonnell Douglas remains binding on us. “We are bound by the precedent of

prior panels absent en banc reconsideration or a superseding contrary decision by the

Supreme Court.” In re Smith, 10 F.3d 723, 724 (10th Cir. 1993). The magistrate

judge correctly applied the McDonnell Douglas framework. Under that framework,

the defendants met their burden and Lucas failed to present any evidence that the

proffered reason for terminating him was pretext for discrimination.3

      B. Title VII Retaliation Claim. The McDonnell Douglas framework also

applies to circumstantial-evidence Title VII retaliation claims. Hansen v. SkyWest

Airlines, 844 F.3d 914, 925 (10th Cir. 2016). To establish a prima facie retaliation

claim, a plaintiff must show “(1) that he 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 exists between the

      3
         Lucas claims the magistrate judge improperly granted summary judgment in
favor of defendants as a sanction for Lucas’s failure to present his evidence in
compliance with Federal Rule of Civil Procedure 56. The magistrate judge did
criticize Lucas for his inclusion of improper arguments and unsubstantiated
allegations, as well as his frequent failure to link his assertions to citations to the
record. But the magistrate judge clearly labored arduously to review the evidence
presented by both sides and granted summary judgment on the merits, not as a
sanction.

                                           11
protected activity and the materially adverse action.” Id. (internal quotation marks

omitted). The magistrate judge ruled that Lucas presented no evidence that he had

engaged in protected opposition to discrimination.

      On appeal, Lucas argues that his statements to the defendants about possibly

contacting the EEOC to complain about the corrective action amounted to protected

activity sufficient to establish a prima facie retaliation claim. We disagree. To meet

his prima facie burden, Lucas must show he “convey[ed] to the employer his or her

concern that the employer has engaged in a practice made unlawful by [Title VII].”

Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008). The

evidence viewed in the light most favorable to Lucas is that he complained to

Thompson of unfair treatment and threatened to complain to the EEOC about a

hostile work environment, but nothing suggests that he complained to Thompson or

to any other defendant that he was being discriminated against because of his race or

gender. “A vague reference to discrimination and harassment without any indication

that this misconduct was motivated by [race, gender, or other category protected by

Title VII] does not constitute protected activity and will not support a retaliation

claim.” Id. at 1203 n.13 (internal quotation marks omitted); see also Petersen v.

Utah Dep’t of Corrs., 301 F.3d 1182, 1188 (10th Cir. 2002) (holding the employee’s

complaints must give adequate notice to the employer that the employee is

complaining of conduct prohibited by Title VII). We agree that Lucas failed to

establish a prima facie retaliation claim.



                                             12
      C. Tortious Interference Claim. The OADC’s director submitted an affidavit,

undisputed by any other evidence, testifying that her decision not to offer Lucas an

OADC contract was based primarily on Lucas’s failure to list any references from the

Defender’s Office in his application, and that she was never contacted by Thompson

or Wilson about Lucas, his qualifications or his application. Based on this

undisputed evidence, the magistrate judge ruled that Lucas failed to present any

evidence that Thompson and White interfered with his ability to obtain an OADC

contract. See Amoco Oil Co. v. Ervin, 908 P.2d 493, 500 (Colo. 1995) (holding that

under Colorado law, “[t]ortious interference with a prospective business relation

requires a showing of intentional and improper interference preventing formation of a

contract”).

      Lucas asserts the magistrate judge failed to view the evidence in the light most

favorable to him and impermissibly made credibility determinations. He argues that

a reasonable inference could be drawn that Thompson interfered with Lucas’s

opportunity to get contract work with OADC based on evidence that Thompson and

the OADC director were friends, communicated with each other on the day Lucas

was terminated, and had a history of discussing whether Defender Office employees

should receive OADC contracts. The undisputed evidence in the record, however, is

that the OADC director never communicated with Thompson or Wilson about Lucas.

Lucas’s argument requires a factfinder to speculate that perhaps the undisputed

evidence is inaccurate, but such speculation and conjecture is insufficient to create a

genuine issue of material fact. See Pioneer Centres Holding Co. Emp. Stock

                                           13
Ownership Plan & Tr. v. Alerus Fin., N.A., 858 F.3d 1324, 1334 (10th Cir. 2017)

(holding that an inference is unreasonable if it is a mere possibility or involves a

degree of speculation and conjecture that requires the factfinder to make a guess).

      We affirm the magistrate judge’s grant of summary judgment in favor of the

defendants.


                                            Entered for the Court


                                            Gregory A. Phillips
                                            Circuit Judge




                                           14
