                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  May 10, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                          FOR THE TENTH CIRCUIT


 SHAHAB SHABESTARI,

             Plaintiff-Appellant,

 v.                                                    No. 09-4105
                                              (D.C. No. 2:08-CV-00222-BSJ)
 UTAH NON-PROFIT HOUSING,                                (D. Utah)

             Defendant-Appellee.



                          ORDER AND JUDGMENT *


Before LUCERO, PORFILIO, and MURPHY, Circuit Judges.



      Shahab Shabestari appeals the grant of summary judgment disposing of his

employment discrimination and unlawful retaliation claims. Exercising

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not binding precedent, except under the doctrines of law of the case, res judicata,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

      Shabestari, a Muslim from Iran, was employed by Utah Non-Profit Housing

(“UNPH”) in its accounting department from 1999 to 2003. He was

recommended for hiring and directly supervised by Mary Jane Fine. Fine was in

turn supervised by Marion Willey, UNPH’s executive director. On several

occasions, Shabestari complained to Willey about Fine’s management style.

Shabestari did not mention racial or religious harassment during any of these

conversations.

      In early 2003, UNPH discovered that invoices for which Shabestari was

responsible were missing, causing UNPH to lose revenue. Fine recommended to

Willey that Shabestari be placed on a corrective action plan. Willey declined.

      On December 5, 2003, Willey met with Shabestari to discuss an unspecified

grievance. At that meeting, Shabestari voiced his desire to report to Willey rather

than to Fine, indicated his dissatisfaction with UNPH’s organizational structure,

and complained about Fine’s allegedly unprofessional and angry behavior.

Willey asked Shabestari for evidence to substantiate his claims against Fine, but

he produced none.

      After that meeting, Willey requested that Fine inform him about

Shabestari’s job performance. She reported that Shabestari performed deficiently

in several areas and suggested that he be placed on a probationary plan. Willey




                                        -2-
rejected Fine’s suggestion and instead discharged Shabestari due to his poor job

performance and his inability to work with his supervisor and others. 1

      Following his termination, Shabestari filed a complaint with the Utah

Anti-Discrimination and Labor Division. He alleged for the first time that Fine

had made disparaging remarks pertaining to his race, his Muslim religion, and his

Iranian national origin. According to Shabestari, Fine made at least three

disparaging remarks in 2003: one in October, one in November, and one in

December. Shabestari produced a different witness to substantiate each remark. 2

      Shabestari also asserted two retaliation claims against UNPH. The first

was a pre-termination claim based on protected activity. The second concerned

an inquiry to the FBI made by Marci Milligan, Fine’s domestic partner, about

Shabestari’s alleged aggressive behavior near their home. As a result of this

inquiry, Shabestari was interviewed by the FBI. The matter was later dropped.

      In March 2008, Shabestari filed suit against UNPH and Fine in federal

district court. He alleged retaliation and discrimination based on race, religion,



      1
        Shabestari contends that UNPH gave numerous, inconsistent reasons for
discharging him. According to Shabestari, this inconsistency supports his claim
that the given reasons were pretextual. In light of our conclusion, discussed infra,
that UNPH advanced a valid affirmative defense, we need not address this
argument.
      2
        One of the witnesses also alleged that Willey made a racially
inappropriate remark. However, this alleged remark could not have contributed to
a hostile work environment because it was made after Shabestari was discharged
and outside of his presence.

                                         -3-
and national origin in violation of Title VII of the Civil Rights Act of 1964

(“Title VII”). Shabestari also asserted various state-law claims. 3 UNPH filed a

motion for summary judgment, which was granted. This appeal followed.

                                         II

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

the record in the light most favorable to the nonmoving party. Warren v. Liberty

Mut. Fire Ins. Co., 555 F.3d 1141, 1145 (10th Cir. 2009). Summary judgment is

appropriate if “there is no genuine issue as to any material fact” and “the moving

party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2).

Although courts may not make credibility determinations or weigh evidence at the

summary judgment stage, “[w]here the record taken as a whole could not lead a

rational trier of fact to find for the nonmoving party, there is no genuine issue for

trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986) (quotations omitted).

                                         A

      Title VII makes it unlawful for an employer “to discriminate against any

individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s race, color, religion, sex, or national

origin.” 42 U.S.C. § 2000e-2(a)(1). “Although Title VII does not explicitly



       3
        Shabestari has since abandoned his state-law claims, as well as his claims
against Fine.

                                         -4-
mention hostile work environment, a victim of a racially hostile work environment

may nevertheless bring a cause of action under Title VII.” Tademy v. Union Pac.

Corp., 520 F.3d 1149, 1156 (10th Cir. 2008) (quotation omitted).

      Shabestari alleges that Fine’s disparaging comments created a hostile work

environment. Moreover, he claims UNPH is vicariously liable for her behavior.

We have explained that an employer can be vicariously liable for a hostile work

environment created by a supervisor in two situations:

       First, the employer is vicariously liable when “the supervisor’s
       harassment culminates in a tangible employment act, such as
       discharge, demotion, or undesirable reassignment.” [Burlington
       Indus., Inc. v.]Ellerth, 524 U.S. [742,] 765 [(1998)]. In that
       situation, the employer has no affirmative defense available. Id.
       Second, an employer may be vicariously liable for a hostile work
       environment, even absent a tangible employment action. However,
       in that circumstance, the employer will not be liable if it proves the
       following affirmative defense by a preponderance of the evidence:
       (1) it “exercised reasonable care to prevent and correct promptly any
       [racially] harassing behavior,” and (2) the plaintiff “unreasonably
       failed to take advantage of any preventive or corrective opportunities
       provided by the employer or to avoid harm otherwise.” Id.; see
       Faragher[v. City of Boca Raton], 524 U.S. [775,] 807 [(1998)].

Pinkerton v. Colo. Dep’t of Transp., 563 F.3d 1052, 1059 (10th Cir. 2009)

(parallel citations omitted).

      Shabestari argues that his termination falls within the first situation and

therefore the Ellerth/Faragher affirmative defense does not apply. More

specifically, he alleges that he suffered a tangible employment action because Fine

caused Willey to fire him under a subordinate bias (or “cat’s paw”) theory.



                                          -5-
      “To prevail on a subordinate bias claim, a plaintiff must establish more than

mere ‘influence’ or ‘input’ in the decisionmaking process. Rather, the issue is

whether the biased subordinate’s discriminatory reports, recommendation, or other

actions caused the adverse employment action.” EEOC v. BCI Coca-Cola Bottling

Co., 450 F.3d 476, 487 (10th Cir. 2006). The burden is on the plaintiff to prove

causation. Id. at 488.

      Undisputed evidence shows that Willey made the decision to discharge

Shabestari. Willey disregarded Fine’s recommendation to place Shabestari on a

probationary plan and testified unequivocally that his ultimate decision to

terminate Shabestari was made independent of the opinions of others. Because

Shabestari cannot show that Willey “rel[ied] exclusively on the say-so of

[Fine], . . . the causal link is defeated.” Id. Accordingly, Shabestari has not

shown that Fine’s behavior culminated in a tangible employment action and UNPH

may claim the Ellerth/Faragher defense.

                                          B

      To prevail on an Ellerth/Faragher defense, an employer must first

demonstrate that it exercised reasonable care to prevent and correct harassing

behavior. See Pinkerton, 563 F.3d at 1059. Shabestari concedes that he received a

copy of UNPH’s employment manual. That manual emphasized that

discrimination “based on an individual’s sex, race, ethnicity, age, religion, or any

other legally-protected class will not be tolerated [by UNPH].” To implement this


                                          -6-
policy, UNPH conducted annual anti-harassment training for all personnel.

Furthermore, when Shabestari complained to Willey concerning job-related

problems, Willey conferred with various employees, attended meetings, or

conducted his own investigation in an attempt to settle the matter. These facts

indicate that UNPH exercised reasonable care to prevent or correct harassing

behavior in the workplace.

      As to the second element of the defense—whether the employee

unreasonably failed to take advantage of the available corrective

procedures—Shabestari admitted that he was aware of UNPH’s grievance policy

and the procedures used to implement it. Nonetheless, Shabestari did not inform

Willey of Fine’s alleged racial or religious harassment, let alone file a grievance

pursuant to company policy. Although Shabestari now claims he feared

retaliation, “a generalized fear of retaliation simply is not sufficient” to explain a

failure to report harassment. Id. at 1063 (collecting cases). Shabestari

unreasonably failed to inform UNPH about any racial or religious harassment he

suffered at the hands of Fine or any other employees at UNPH. 4




       4
         Shabestari claims he attempted to report Fine’s alleged harassment to
UNPH’s board of directors. However, UNPH’s grievance policy specifically
states that an employee must report harassment to his “immediate supervisor” or,
if the immediate supervisor is the offending party, he should report this behavior
to UNPH’s human resources manager or executive director. Moreover, Shabestari
did not mention racial or religious harassment in any of his attempted
communications with UNPH board members.

                                           -7-
      We conclude that UNPH met its burden of proof under the Ellerth/Faragher

defense and therefore summary judgment on Shabestari’s discrimination claims

was proper. Because we affirm on this ground, we need not address Shabestari’s

arguments concerning pretext or his contention that he established a prima facie

case of discrimination.

                                          C

      Shabestari’s final argument is that UNPH retaliated against him by

terminating his employment and by having Milligan contact the FBI. Title VII

forbids an employer from retaliating against an individual because that individual

opposed an unlawful employment practice or because that individual “has made a

charge, testified, assisted, or participated in any manner in an investigation,

proceeding, or hearing” pursuant to Title VII. 42 U.S.C. § 2000e-3(a). To make

out a prima facie case of retaliation, a plaintiff must establish: “(1) [he] engaged

in protected opposition to discrimination; (2) [he] suffered an adverse action that a

reasonable employee would have found material; and (3) a causal nexus exists

between [his] opposition and the employer’s adverse action.” Montes v. Vail

Clinic, Inc., 497 F.3d 1160, 1176 (10th Cir. 2007).

      Shabestari did not inform UNPH that Fine made offensive remarks about his

race, religion, or national original. Consequently, he cannot show that he engaged

in protected opposition to discrimination before he was discharged. Summary

judgment was therefore appropriate on his pre-termination retaliation claim.


                                          -8-
      Shabestari’s post-termination retaliation claim rests on a document

purporting to be an email from Milligan to the FBI. Even if this document were

admissible, it does not establish the requisite causal connection between

Shabestari’s protected opposition and UNPH’s adverse action. Shabestari has

failed to show a link between Milligan and UNPH (except the personal

relationship between Milligan and Fine) that would impute responsibility to UNPH

for Milligan’s actions. Likewise, Shabestari has offered no evidence

demonstrating that Milligan was acting as UNPH’s agent when she contacted the

FBI. Accordingly, we conclude that no rational trier of fact could find that

Milligan’s contact with the FBI was retaliation by UNPH. Summary judgment in

favor of UNPH was proper.

                                        III

      For the foregoing reasons, the judgment of the district court is AFFIRMED.



                                                    Entered for the Court



                                                    Carlos F. Lucero
                                                    Circuit Judge




                                         -9-
