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

                             FOR THE TENTH CIRCUIT                         October 30, 2015
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
BRYAN MCELROY,

      Plaintiff - Appellant,

v.                                                         No. 14-4134
                                                   (D.C. No. 2:12-CV-01132-TS)
AMERICAN FAMILY INSURANCE,                                   (D. Utah)
a/k/a American Family Insurance Group,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, HOLMES, and MORITZ, Circuit Judges.
                  _________________________________

      Bryan McElroy appeals the district court’s decision granting American Family

Insurance’s motion for summary judgment on his hostile work environment and

retaliation claims. Because we conclude that no genuine issues of material fact

remain as to either of McElroy’s claims and that American Family is entitled to

judgment as a matter of law, we affirm the district court’s ruling.

                                    BACKGROUND

      Bryan McElroy admits that after working for American Family Insurance

(AFI) for more than a decade, he “was having a ‘bad year’ in 2011.” Aplt. Br. at 27.


      *
         This order and judgment is not binding precedent, except under the doctrines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. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
Although McElroy attributes many of his 2011 performance issues to the actions of

his supervisor, Tony Grilz, he doesn’t dispute that he repeatedly failed to meet the

goals Grilz set for him that year. Nor does he dispute that Grilz disciplined him in

May 2011 for engaging in behavior Grilz viewed as insubordinate. Nevertheless,

McElroy denies these issues led Grilz to terminate his employment on October 28,

2011. Instead, McElroy insists the events that precipitated his termination began

much earlier when, in 2008, Grilz told McElroy that Grilz wanted someone younger

and more moldable to serve as District Sales Manager.

      That same year, McElroy alleges, Grilz began a pattern of inappropriate

behavior: Grilz complimented McElroy’s appearance, clothing, and cologne; touched

McElroy’s back and buttocks, ostensibly to illustrate the location of Grilz’s back

pain; instructed McElroy to participate in two body-fat contests during which he

required McElroy to wear a speedo, complimented McElroy’s appearance, and tried

to touch his buttocks; repeatedly asked McElroy to join him for drinks during a

company event; and required McElroy—who is Catholic—to work a Sunday event

because AFI’s Mormon employees could not.

      On April 22, 2011, McElroy made an anonymous phone call to AFI’s internal

ethics hotline, alleging Grilz was discriminating against him on the basis of religion

and age. Six months and several performance-related discussions later, Grilz

terminated McElroy’s employment, allegedly in retaliation for McElroy’s phone call

to the ethics hotline and an additional complaint to “a company Human Resources

manager.” Compl., Doc. 2, ¶ 106.

                                              2
      In response to his termination, McElroy filed a charge with the Equal

Employment Opportunity Commission and later filed suit in federal district court

under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in

Employment Act (ADEA) of 1967. Among other claims, McElroy alleged (1) a

hostile work environment based on sexual harassment and (2) retaliation.1 Following

discovery, AFI moved for summary judgment on all of McElroy’s claims.

      In rejecting McElroy’s hostile work environment claim, the district court

acknowledged that “some of Grilz’s conduct could make many people

uncomfortable.” Order, Doc. 26, at 22. Nevertheless, it concluded the conduct didn’t

“rise to the level of being so objectively offensive that it created a hostile or abusive

work environment.” Id. In rejecting McElroy’s retaliation claim, the district court

relied in part on the six-month period that elapsed between McElroy’s anonymous

call to the ethics hotline and his termination. The court concluded that absent any

other evidence of causation, McElroy failed to demonstrate a causal connection

between the two events.

      The district court granted summary judgment in favor of AFI. McElroy

appeals.




      1
        The district court granted AFI’s motion for summary judgment on all seven
causes of action asserted in McElroy’s complaint. Because McElroy appeals only
from the district court’s grant of summary judgment on his hostile work environment
and retaliation claims, we confine our discussion to these issues.
                                                3
                                      DISCUSSION

      We review the district court’s grant of summary judgment de novo. Adamson

v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008). We

view the facts and evidence in the light most favorable to McElroy. See Tolan v.

Cotton, 134 S. Ct. 1861, 1866 (2014). 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).

I.    The district court properly granted summary judgment on McElroy’s
      hostile work environment claim.

      To succeed on a hostile work environment claim, a plaintiff must show “the

workplace is permeated with discriminatory intimidation, ridicule, and insult, that is

sufficiently severe or pervasive to alter the conditions of the victim’s employment

and create an abusive working environment.” Morris v. City of Colorado Springs,

666 F.3d 654, 664 (10th Cir. 2012) (quoting Hall v. U.S. Dep’t of Labor, 476 F.3d

847, 851 (10th Cir. 2007)).

      McElroy challenges the district court’s decision granting summary judgment

on his hostile work environment claim on two fronts. First, he suggests that only

juries—not district courts—are properly equipped to determine what is objectively

offensive in this context.

      We find this argument puzzling in light of McElroy’s apparent concession that

“in deciding motions for summary judgment relating to claims alleging hostile work

environment[s], the trial court has to be the entity . . . to draw the line between


                                                4
occasionally rude or sporadically mean supervisory actions and actions severe or

pervasive enough that they cross over the line and create actionable harassment.”

Aplt. Br. at 15.

       Nevertheless, it’s true we have generally recognized that “[t]he severity and

pervasiveness evaluation [of a hostile work environment claim] is particularly

unsuited for summary judgment because it is quintessentially a question of fact.”

Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 958 (10th Cir. 2012) (second

alteration in original) (quoting O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093,

1098 (10th Cir. 1999)). But we also often have affirmed the resolution of this issue at

the summary judgment stage. See, e.g., Morris, 666 F.3d at 658, 666, 669 (affirming

district court’s conclusion that conduct was insufficiently severe or pervasive to alter

terms of plaintiffs’ employment); Chavez v. New Mexico, 397 F.3d 826, 832 (10th

Cir. 2005) (same).

       In support of his argument that the severity-and-pervasiveness analysis is an

inappropriate basis for granting summary judgment, McElroy relies solely on

Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117 (10th Cir. 2003). There, we

explained that “ascertaining whether [an] impairment substantially limits [a] major

life activity” for purposes of a claim under the Americans with Disabilities Act “is a

factual question for the jury.” Id. at 1129.

       Yet despite acknowledging this question is best left to juries, we reiterated that

“in proper circumstances,” courts can nevertheless “decide this step on a motion for

summary judgment.” Id. at 1130 n.5. We then proceeded to affirm the district court,

                                               5
which had done just that. Id. at 1121, 1130-31. Thus, if anything, Doebele stands for

the proposition that district courts may grant summary judgment on the basis of

factual questions when, “as a matter of law,” a plaintiff’s evidence is insufficient to

create a question of fact. Id. at 1130. Because the only authority McElroy cites to

support his argument directly contradicts the proposition for which he cites it, his

argument fails.

      Next, McElroy insists that the district court’s finding that “some of Grilz’s

conduct could make many people uncomfortable,” Order, Doc. 26, at 22, leads to the

inescapable conclusion that a jury could necessarily find Grilz’s behavior sufficiently

offensive to support a hostile work environment claim. But McElroy cites no

authority suggesting that behavior capable of causing mere discomfort is necessarily

capable of “alter[ing] the conditions of [a] victim’s employment and creat[ing] an

abusive working environment.” Morris, 666 F.3d at 664 (quoting Hall, 476 F.3d at

851). On the contrary, we’ve warned that “even incidents that would objectively give

rise to bruised or wounded feelings will not on that account satisfy the severe or

pervasive standard.” Id. (quoting EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315

(4th Cir. 2008)). The district court’s acknowledgment that Grilz’s conduct could

make many people uncomfortable doesn’t compel the conclusion that a jury could

find that conduct severe enough to support McElroy’s allegations of a hostile work

environment. Accordingly, we affirm the district court’s grant of summary judgment

on McElroy’s hostile work environment claim.



                                               6
II.   The district court properly granted summary judgment on McElroy’s
      retaliation claim.

      To make a prima facie case for retaliation under either Title VII or the ADEA,

McElroy must establish (1) he engaged in protected opposition to discrimination; (2)

he suffered an adverse employment action; and (3) there was a causal connection

between the protected activity and the adverse employment action. Daniels v. United

Parcel Serv., Inc., 701 F.3d 620, 638 (10th Cir. 2012). In granting summary

judgment on McElroy’s retaliation claim, the district court relied on McElroy’s

failure to offer sufficient evidence of a causal connection.

      On appeal, McElroy concedes the six-month gap between his anonymous

phone call to the ethics hotline (the protected conduct) and his termination (the

adverse employment action) was too long to support an inference of causation. But he

insists much less time elapsed between other protected conduct—his complaints to

AFI employees John Thedinga2 and Christy Ledgerwood—and other adverse

employment action: what he describes as “Grilz’[s] effort to build a case against

[him].” Aplt. Br. at 21.

      To succeed on this argument, McElroy must first establish his complaints to

Thedinga and Ledgerwood constituted protected conduct. For our purposes,

opposition to an employer’s conduct is only “protected” if it opposes a practice made

unlawful by Title VII or the ADEA. Hinds v. Sprint/United Mgmt. Co., 523 F.3d


      2
        Although McElroy’s brief refers to “John Thedinger,” Aplt. Br. at 21,
McElroy’s appendix refers to “John Thedinga,” see, e.g., Aplt. App. at 26-43. We
adopt that spelling here.
                                               7
1187, 1203 (10th Cir. 2008); Petersen v. Utah Dep’t of Corr., 301 F.3d 1182, 1188

(10th Cir. 2002). But McElroy’s brief doesn’t tell us what he said to Ledgerwood or

when he said it. Without such information, we can’t determine whether the complaint

was protected, much less its proximity to any adverse employment action. Thus,

McElroy hasn’t established the district court erred in failing to consider the

complaint he made to Ledgerwood in evaluating causation.

      McElroy’s argument regarding his conversation with Thedinga fails for similar

reasons. While McElroy asserts he told Thedinga that Grilz’s behavior towards him

was “discriminatory,” Aplt. Br. at 19, he admits he never mentioned gender, religion,

or age during that conversation. Absent some indication McElroy told Thedinga that

Grilz discriminated against him on the basis of a characteristic listed in Title VII or

the ADEA, McElroy fails to establish his comment to Thedinga was protected. See

Hinds, 523 F.3d at 1203 (“Although no magic words are required, to qualify as

protected opposition the employee must convey to the employer his or her concern

that the employer has engaged in a practice made unlawful by the ADEA.”);

Petersen, 301 F.3d at 1188 (“Opposition to an employer’s conduct is protected by

§ 2000e-3(a) only if it is opposition to a ‘practice made an unlawful employment

practice by [Title VII].’”). In any event, McElroy’s brief also fails to indicate when

he made the allegedly protected comment to Thedinga. Thus, even if we agreed the

comment was protected, we’d be unable to determine its proximity to any adverse

employment action or make any inference of causation.



                                               8
      So we’re left with only one possible instance of protected opposition:

McElroy’s anonymous phone call to AFI’s ethics hotline. Notably, McElroy

acknowledges that his placement of an anonymous call generates an issue as to

causation. See Aplt. Br. at 19 n.4 (recognizing that anonymity of call “goes not to the

issue of whether [McElroy] engaged in protected activity, but whether he can

establish a causal connection”). As McElroy further acknowledges, if Grilz didn’t

know McElroy called the ethics hotline, Grilz couldn’t have terminated McElroy’s

employment3 because McElroy called the ethics hotline. See Peterson, 301 F.3d at

1188 (noting 42 U.S.C. § 2000e-3(a) only prohibits an employer from retaliating

“because” an employee engaged in protected conduct, and reasoning, “An employer’s

action against an employee cannot be because of that employee’s protected

opposition unless the employer knows the employee has engaged in protected

opposition” (quoting § 2000e-3(a)) (second emphasis added)); see also 29 U.S.C.

§ 623(d) (prohibiting employers from discriminating “because” an individual “has

opposed any practice made unlawful by” ADEA).

      McElroy’s concession that his phone call “remained anonymous,” Aplt. Br. at

19 n.4, is fatal to his retaliation claim. See Peterson, 301 F.3d at 1189 (explaining

plaintiff’s failure to provide evidence establishing employer retaliated against her

because of plaintiff’s protected conduct “would in itself require judgment against

her”). Thus, we need not address McElroy’s other arguments challenging the district

      3
         Because McElroy fails to establish Grilz knew of McElroy’s protected
conduct, we need not address McElroy’s argument that he provided evidence of an
earlier adverse employment action.
                                               9
court’s decision to grant summary judgment on his retaliation claim. Even assuming

the district court somehow erred, McElroy’s failure to establish Grilz was aware of

McElroy’s phone call to the ethics hotline would require us to affirm.

                                    CONCLUSION

      We affirm the district court’s grant of summary judgment in favor of AFI.


                                           Entered for the Court


                                           Nancy L. Moritz
                                           Circuit Judge




                                             10
