                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                     UNITED STATES COURT OF APPEALS October 12, 2010
                                                               Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT
                                                                   Clerk of Court


    FRAN HOWELL,

                Plaintiff-Appellant,

    v.                                                  No. 10-2020
                                            (D.C. No. 6:08-CV-00937-BB-WDS)
    NEW MEXICO DEPARTMENT OF                             (D. N.M.)
    AGING & LONG TERM SERVICES,
    ADULT PROTECTIVE SERVICES
    DIVISION,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TACHA, LUCERO, and MURPHY, Circuit Judges.


         In this employment discrimination case, Fran Howell appeals from a

district court order that granted summary judgment to her former employer, the

Adult Protective Services Division of the New Mexico Department of Aging &

Long Term Services (APSD). She also seeks to proceed on appeal in forma



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
pauperis (IFP). 1 We have jurisdiction under 28 U.S.C. § 1291, deny IFP status,

and dismiss the appeal.

                                   B ACKGROUND

      For several years, Howell was employed as a social worker under the

supervision of Matthew Thompson in New Mexico’s Child Protective Services

Division. In July 2005, Howell transferred to APSD to get away from Thompson,

whose behavior she found “extremely harassing.” R. at 272. She claims,

however, that the harassment continued at APSD, as Thompson “interjected him

self [sic] into [her] relationship with [her] Supervisor, [Karen] Allen.” Id. at 274.

      In January 2006, Thompson became APSD’s regional manager, and once

again had supervisory authority over Howell, who was then fifty-nine years old.

According to Howell, Thompson continued harassing her by requiring her to

provide a doctor’s note with a diagnosis each time she missed work due to illness,

insisting that she obtain prior approval to work outside of her normal hours,

giving her a “Not Acceptable” rating on her employee development and appraisal

form, id. at 311, threatening to issue a corrective action plan to improve her work

and attendance, instructing her to perform work that she was not authorized to do,

and utilizing “informants” to report on her activities, id. at 280.




1
      Although Howell filed this appeal pro se, she has since retained an
attorney, who has filed a reply brief on Howell’s behalf.

                                          -2-
      On June 14, 2006, APSD placed Howell on administrative leave while it

investigated a report that she had threatened Thompson’s life. Based on the

investigation, APSD issued a termination notice on June 19, 2006, stating:

      Upon learning of [Thompson’s] appointment [as APSD’s regional
      manager], you [Howell] became angry and threatened to kill him.
      Over the past several months, you have repeated the threat on
      numerous occasions. Sometimes you have said you intend to shoot
      Mr. Thompson; at other times, you have said you intend to pour
      gasoline on him and set him on fire. You have communicated these
      threats to coworkers and others. As a result, Mr. Thompson has been
      placed in fear, and your coworkers have been placed in an untenable
      working environment.

Id. at 213. It is unclear whether this notice was delivered to Howell, as she

submitted a letter of resignation several days later, explaining: “[Thompson] and

I share an unrelenting, intensely negative relationship. I find ours are

irreconcilable differences, which prevent my continuing employment under his

direction and or supervision.” Id. at 234.

      Howell exhausted her administrative remedies, and ultimately sued APSD,

advancing pro se claims of discrimination on the basis of age, gender, race, and

religion, as well as a claim for retaliation, all in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and the Age Discrimination

in Employment Act (ADEA), 29 U.S.C. §§ 621-34. APSD moved for summary

judgment, and deposed Howell. During her deposition, Howell testified that she

believed Thompson disliked her because he “doesn’t do well with older women,”

and he appeared to be intimidated by her “work experience,” her “relationships

                                           -3-
with some of the people who had made it up the corporate ladder,” and her

defense of clients. R. at 232.

      Howell opposed summary judgment only as to age and gender

discrimination, 2 and provided no clear indication whether she was pursuing

hostile-work-environment and/or disparate-treatment theories. It appears,

however, that the crux of her case was a hostile work environment. She sought to

prove that Thompson created intolerable working conditions because he harbored

discriminatory animus toward her. As proof, she relied on the following

evidence: two witness telephone interviews conducted by the Equal Employment

Opportunity Commission (EEOC); an unsigned, unauthenticated document

purportedly written by one of her APSD supervisors, Bobby Robertson; a

handwritten sheet entitled, “My Notes,” id. at 326; and her employee development

and appraisal form on which she received a negative score.

      The district court granted APSD summary judgment, concluding that

Howell’s case boiled down to a “personality conflict” and employee performance

issues. R. at 439. In doing so, the court noted that Howell’s evidence was either

unreliable and inadmissible, or simply not probative of illegal discrimination.


2
       Howell did claim that Thompson once commented about “a person being
‘out of favor with God,’” and that she found this “very disturbing and
frightening.” R. at 277. But she did not advance any sort of religious-
discrimination argument. In any event, isolated distasteful remarks are not
actionable under Title VII. Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 271
(2001).

                                        -4-
The court also denied Howell’s motion to proceed IFP on appeal, concluding that

she had not identified a reasoned, nonfrivolous argument to appeal.

                                     D ISCUSSION

                                Standards of Review

      We review de novo the district court’s decision to grant summary

judgment. See Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005).

Summary judgment is appropriate “if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(c). In performing this analysis, “we view the evidence and draw

reasonable inferences therefrom in the light most favorable to the nonmoving

party.” Garrison, 428 F.3d at 935. Further, this court liberally construes a pro se

party’s pleadings. Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.3

(10th Cir. 2002). “However, where 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.” Pinkerton v. Colo. Dep’t of Transp., 563 F.3d 1052, 1058 (10th Cir. 2009)

(quotations and brackets omitted).

                       Title VII - Hostile Work Environment

      Under Title VII, it is “an unlawful employment practice for an employer

. . . to discriminate against any individual with respect to [her] compensation,

terms, conditions, or privileges of employment, because of such individual’s . . .

                                         -5-
sex.” 42 U.S.C. § 2000e-2(a)(1). “An individual can make a claim of sex

discrimination based on a hostile work environment, but in order to do so, [she]

must show (1) that she was discriminated against because of her sex; and (2) that

the discrimination was sufficiently severe or pervasive such that it altered the

terms or conditions of her employment and created an abusive working

environment.” Pinkerton, 563 F.3d at 1058 (citation and quotation omitted).

      To show that her working conditions under Thompson were the result of

sex discrimination, Howell asserted in an affidavit that he made the following

remarks: “Not just too blond, are you? Your [sic] also a real blond”; “[S]he is

pretty dittsey [sic]”; “She can not [sic] change with the agency [because] she is

too used to the feminine perspective”; and “a woman, especially an old woman

[taking prednisone] . . . would/could be too much for this office.” R. at 283. But

at least two of these statements—“[S]he is pretty dittsey [sic]” and “She can not

[sic] change”—appear to have been made by Thompson to third parties. It is

well-established that a “nonmovant’s affidavits must be based upon personal

knowledge and set forth facts that would be admissible in evidence.” Skrzypczak

v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238, 1244 (10th Cir. 2010).

Howell does not indicate how she learned of those two statements or how they

would be admissible.

      Indeed, those statements are not mentioned in the exhibits she cites in her

affidavit. And only one of the exhibits she cites even remotely supports her

                                         -6-
larger contention that Thompson harbored discriminatory animus on the basis of

gender. That exhibit is an EEOC report of a telephone interview with APSD

employee Peggy Skinner. She told the interviewer that “Thompson did have

direct animosity towards women and would get on [Howell] for nothing at all.”

Id. at 345. But both Skinner’s statement and the interviewer’s report of that

statement are hearsay, see Fed. R. Evid. 802, and Howell does not address their

admissibility. See Fisher v. City of Las Cruces, 584 F.3d 888, 897 n.3 (10th Cir.

2009) (observing that hearsay is “inadmissible in a summary judgment

proceeding”). Further, the report is unreliable, as nothing indicates how Skinner

came to the conclusion that Thompson did not like women employees and would

harass Howell for no reason. Moreover, one of the other exhibits that Howell

cites is an EEOC report of a telephone interview with Howell’s immediate

supervisor, Julie Sursa, who stated that the problem between Thompson and

Howell was “an employee supervisory issue more so than a discriminatory issue,”

as “[Howell] would not complete her work, would not call in as she was informed

to, and would work when she wanted.” Id. at 346.

      While Sursa’s statement and the EEOC report containing it share the same

admissibility issues as the report with Skinner’s statement, other evidence in the

record suggests that the problem between Howell and Thompson was either a

supervisory issue or a personality conflict. For instance, Howell’s resignation

letter states that she and Thompson “share an unrelenting, intensely negative

                                         -7-
relationship” and that they have “irreconcilable differences.” R. at 234. Howell’s

deposition testimony suggests that Thompson’s motivations may have stemmed

from his insecurity in supervising a “more . . . experience[d]” employee, id. at

232, rather than a dislike of female employees in general.

      We conclude that a rational trier of fact could not find from the admissible

evidence that the character of Howell’s work environment was the result of sex

discrimination. Accordingly, summary judgment was appropriate on Howell’s sex

discrimination claim.

                        ADEA - Hostile Work Environment

      Under the ADEA, an employer may not “discriminate against any

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

employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). Age

discrimination can form the basis of a hostile-environment claim if (1) the

employee was discriminated against because of her age; and (2) the

discrimination created a workplace so permeated with severe or pervasive

intimidation, ridicule, and insult, that it altered the employment conditions and

created an abusive working environment. See MacKenzie v. City & Cnty. of

Denver, 414 F.3d 1266, 1280 (10th Cir. 2005).

      To show discriminatory motive, Howell asserts that Thompson told APSD

not to hire her because she was “too old and incapable of adapting to the new

technologies and techniques,” R. at 327, and that “[h]e want[ed] to get rid of he[r]

                                         -8-
because she [was] too old to keep [up] with the work load,” id. at 327. As

supporting evidence, Howell again relies on the EEOC reports. But as discussed

above, those reports are inadmissible, unreliable, and largely unhelpful to Howell.

She also cites the unsigned document purportedly written by supervisor

Robertson. But that document is not in the form of an affidavit or an unsworn

declaration, see 28 U.S.C. § 1746, and “was not within the range of evidence that

the district court could consider” on summary judgment. DeBruyne v. Equitable

Life Assur. Soc., 920 F.2d 457, 471 (7th Cir. 1990); see also Elder-Keep v.

Aksamit, 460 F.3d 979, 984 (8th Cir. 2006) (holding that district court properly

excluded “affidavits [that] lacked signatures and attestation before a notary

public”). 3

       Further, even if the Robertson document were in the proper form, part of

the information it relates is based on hearsay statements of other individuals, and


3
       Howell argues that the district court should have notified her of the proper
form for affidavits before granting APSD’s summary judgment motion. But she
clearly knew how to submit a proper affidavit, as her own affidavit is signed,
sworn and notarized. Further, in its district court reply brief, APSD argued that
the Robertson document could not be considered as an affidavit because it was
not in the proper form. Two months passed from APSD’s filing of the reply brief
until the district court entered summary judgment, but Howell did not attempt to
supplement her summary judgment opposition or otherwise remedy the problems
with the Robertson document. While a district court may abuse its discretion by
refusing a pro se litigant’s request to remedy defects in her summary judgment
materials, Jaxon v. Circle K Corp., 773 F.2d 1138, 1140 (10th Cir. 1985), Howell
made no such request. Consequently, she was bound to “follow the same rules of
procedure that govern other litigants.” Hall v. Witteman, 584 F.3d 859, 864
(10th Cir. 2009) (quotation omitted).

                                         -9-
would not be admissible in evidence. “To survive summary judgment, [the]

nonmovant’s affidavits must be based upon personal knowledge and set forth

facts that would be admissible in evidence . . . .” Skrzypczak, 611 F.3d at 1244

(quotation omitted).

      Howell also claimed that Thompson “has informants . . . in my work place

who have absolutely NOT reported truthfully to him.” R. at 282. But even if

true, it is unclear how this suggests that Thompson harbored discriminatory

animus. As supporting evidence, Howell cites her handwritten “My Notes” piece

of paper and her negative employee appraisal. But not only are her notes

inadmissible, neither exhibit elucidates this matter.

      Finally, Howell claims that she has been blacklisted from further

employment as a social worker, and that Thompson told managers at APSD that

they should transfer to him any telephone calls seeking a job reference for her.

She cites the Robertson document as support. But that document does not

mention either topic.

      Given the lack of admissible evidence of discriminatory motive, we

conclude that a rational trier of fact could not find that the character of Howell’s

work environment was the result of age discrimination. See Jones v. Okla. City

Pub. Schs., No. 09-6108, 2010 WL 3310226, at *4 (10th Cir. Aug. 24, 2010)

(reinforcing the rule that an employer cannot be held liable under the ADEA

unless “age was the factor that made a difference” in its actions with the

                                         -10-
employee (quotation omitted)). Accordingly, summary judgment was appropriate

on Howell’s ADEA claim.

                                    C ONCLUSION

      The motion for leave to proceed IFP is DENIED. See Lister v. Dep’t of

Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) (noting that IFP status requires

not only a financial inability to pay the required filing fees, but also the existence

of a reasoned, nonfrivolous argument on the law and facts). This appeal is

DISMISSED. 4

                                                     Entered for the Court


                                                     Deanell R. Tacha
                                                     Circuit Judge




4
       To the extent Howell’s Title VII and ADEA claims include a
disparate-treatment component, she has not demonstrated that similarly situated
employees outside of her protected classes were treated differently than she was.
See Orr v. City of Albuquerque, 417 F.3d 1144, 1149-50 (10th Cir. 2005) (Title
VII); See Jones, 2010 WL 3310226, at *5 (ADEA). As such, she cannot make out
a prima facie case of discrimination. Howell overlooks this point, and appears to
jump ahead to the argument that APSD’s reason for firing her was a pretext for
discrimination. Specifically, she denies threatening to kill Thompson. But there
is undisputed evidence that APSD relied on the results of the investigation when
deciding to fire Howell. “Evidence that the employer was mistaken is not
sufficient to show that the employer’s explanation is unworthy of credibility. The
relevant inquiry is whether it honestly believed those reasons and acted in good
faith upon those beliefs.” Orr, 531 F.3d at 1218 (quotation and ellipses omitted).
There is no evidence that APSD did not honestly believe the results of the
investigation or that it failed to act in good faith upon its belief.


                                         -11-
