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

                           FOR THE TENTH CIRCUIT                       October 18, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
A. SUSAN MARQUEZ,

             Plaintiff-Appellant,

v.                                                        No. 13-1021
                                             (D.C. No. 1:11-CV-00545-WJM-KLM)
MARTHA JOHNSON, Administrator,                             (D. Colo.)
General Services Administration Agency,

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, ANDERSON, Circuit Judge, and BRORBY, Senior
Circuit Judge.


      A. Susan Marquez appeals the district court’s grant of summary judgment in

favor of her employer, the General Services Administration (GSA), on her claims of

retaliation and retaliatory hostile work environment under Title VII, 42 U.S.C.

§ 2000e–3(a), and her claims under the Privacy Act, 5 U.S.C. § 552a. We exercise

jurisdiction under 28 U.S.C. § 1291 and 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.    BACKGROUND

      The district court provided a comprehensive discussion of the underlying facts

so we discuss only those facts relevant to the issues presented for our review.

Ms. Marquez is an employee of the GSA. Her Title VII claims are for retaliation and

a retaliatory hostile work environment for protected Equal Employment Opportunity

(EEO) activity based on conduct by her supervisor, H. Jan Faulkner. On

December 31, 2009, Ms. Marquez filed an EEO complaint asserting that

Ms. Faulkner had retaliated against her for being listed as a witness in an EEO matter

filed by a coworker, Jaime Hernandez. She claimed that shortly thereafter, in

January 2010, Ms. Faulkner retaliated against her for filing her EEO complaint by

compelling her to take a work assignment she did not want and by not promoting her.

She also asserted that the compelled-work assignment and failure to promote, as well

as Ms. Faulkner’s failure to accommodate her in a job reassignment, created a hostile

work environment as retaliation for her EEO complaint. She sought EEO counseling

on June 17, 2010, and filed another EEO complaint on August 5, 2010, based on the

alleged hostile work environment. Ms. Marquez also brought claims under the

Privacy Act asserting that Ms. Faulkner had improperly divulged her medical

information and information about her EEO activity.

      The district court granted the GSA’s motion for summary judgment. On the

Title VII retaliation claims, the court held that Ms. Marquez failed to

administratively exhaust her compelled-work-assignment and failure-to-promote


                                          -2-
claims. The court further determined that the circumstances alleged did not rise to

the level of a hostile work environment and that Ms. Faulkner had not known of

Ms. Marquez’s involvement in the Hernandez EEO matter, so she could not have

retaliated for it. The court also granted summary judgment to the GSA on the

Privacy Act claims because Ms. Marquez had not satisfied the elements for such a

claim.

II.      DISCUSSION

         A. Standards of Review

         “We review the district court’s summary judgment order de novo, and apply

the same legal standards as the district court.” Ribeau v. Katt, 681 F.3d 1190, 1194

(10th Cir. 2012) (internal quotation marks omitted). “The court shall grant summary

judgment 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).

         Ms. Marquez complains that the district court improperly accepted the GSA’s

statement of facts and disregarded her own. The district court ruled that

Ms. Marquez’s proffered statement of facts relied almost exclusively on her affidavit

that “contain[ed] inadmissible hearsay statements, and statements made without a

factual basis.” Aplt. App. at 304. In addition, her filing “failed to admit or deny, in

correspondingly numbered paragraphs, any facts set forth in Defendant’s Statement

of Material Facts section, as required by [local court rules].” Id. at 303-04. See D.C.

Colo. L. Civ. R. 7.1(D); WJM Practice Standards III.E.5 (eff. 12/1/2012).


                                          -3-
      The district court properly refused to consider hearsay evidence on summary

judgment. Johnson v. Weld Cnty., 594 F.3d 1202, 1210 (10th Cir. 2010). As for the

application of local court rules, “this court has recognized that district courts have

discretion in applying local rules.” Vittoria N. Am., L.L.C. v. Euro-Asia Imports Inc.,

278 F.3d 1076, 1081 (10th Cir. 2001) (alterations omitted); see also Shrader v.

Biddinger, 633 F.3d 1235, 1249 (10th Cir. 2011) (reviewing for abuse of discretion

enforcement of rule requiring counsel to confer on non-dispositive motions). The

district court did not merely rely on Ms. Marquez’s failure to follow the local rules to

“relieve the court of its duty to make the specific determinations required by Fed. R.

Civ. P. 56([a]),” Murray v. City of Tahlequah, 312 F.3d 1196, 1200 (10th Cir. 2002),

but properly addressed the merits of the motion for summary judgment. Moreover,

Ms. Marquez has not made any appellate argument challenging the district court’s

application of the local rules or refusal of hearsay evidence. See Toevs v. Reid,

685 F.3d 903, 911 (10th Cir. 2012) (“Arguments not clearly made in a party’s

opening brief are deemed waived.”). Accordingly, we find no abuse of discretion in

the district court’s acceptance of the GSA’s statement of facts.

      B. Title VII Retaliation–Compelled Work Assignment and Failure to Promote

      “Title VII forbids retaliation against an employee because she has ‘opposed’

any practice made unlawful by Title VII, or because she has ‘participated . . . in an

investigation, proceeding, or hearing’” regarding a claim of discrimination. Stover v.

Martinez, 382 F.3d 1064, 1070 (10th Cir. 2004) (quoting 42 U.S.C. § 2000e–3(a)).


                                          -4-
As an employee of the GSA, Ms. Marquez was required to “initiate contact with [an

EEO] Counselor within 45 days of the date of the matter alleged to be discriminatory

or, in the case of personnel action, within 45 days of the effective date of the action.”

29 C.F.R. § 1614.105(a)(1); cf. Davis v. U.S. Postal Serv., 142 F.3d 1334, 1340

(10th Cir. 1998) (stating hostile work environment claim by federal employee was

timely because plaintiff “met with [an EEO counselor] within at least 45 days of the

alleged sexual harassment”).

      Ms. Marquez alleged that Ms. Faulkner violated Title VII’s anti-retaliation

provision by compelling her to a work assignment that she did not want and by

failing to promote her, in retaliation for her December 2009 EEO complaint. It is

undisputed that Ms. Marquez was compelled to take the work assignment in January

2010. She initiated contact with an EEO counselor on June 17, 2010, more than 45

days later. Therefore, she failed to timely exhaust her administrative remedies for

this claim.

      Ms. Marquez contends that her non-promotion was in July 2010, so her August

2010 EEO complaint served to exhaust administrative remedies. But the district

court found that under the GSA’s accepted facts, Ms. Marquez’s failure-to-promote

claim arose in January 2010; and pursuant to Ms. Marquez’s deposition testimony,

she knew in January 2010 that she would not be promoted. Therefore, this claim was

also not timely exhausted.




                                          -5-
       Ms. Marquez alternatively argues that exhaustion was not required. Her

position is inconsistent with prevailing Supreme Court and Tenth Circuit law, which

require a claimant to file a charge within the appropriate limitations period as to each

discrete act of retaliation. E.g., Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

110-113 (2002); Martinez v. Potter, 347 F.3d 1208, 1211 (10th Cir. 2003).

       C. Title VII Retaliation–Hostile Work Environment

       Next, Ms. Marquez asserts that Ms. Faulkner retaliated against her for filing

the December 2009 EEO complaint by creating a hostile work environment.1 She

alleges that the hostile environment consisted of the January 2010 failure to promote,

the January 2010 compelled-work assignment, and the fact that Ms. Faulkner

“minimize[d] the impact of the [January 2010] realignment on everyone involved,”

except for her, Aplt. Br. at 24.

       As noted, Ms. Marquez sought EEO counseling on June 17, 2010, past the

45-day time limit. However, an act contributing to the hostile work environment that

occurred outside the filing period “may be considered to complete the history of acts

comprising the hostile environment.” Holmes v. Utah, Dep’t of Workforce Servs.,

483 F.3d 1057, 1063 (10th Cir. 2007) (citing Morgan, 536 U.S. at 117).

Nevertheless, while “consideration of the entire scope of a hostile work environment


1
       Ms. Marquez apparently pursued in the district court a
hostile-work-environment-retaliation claim based on race, for which the court found
she had not established a prima facie case. This claim is abandoned on appeal due to
Ms. Marquez’s lack of argument and authority. See Toevs, 685 F.3d at 911.


                                          -6-
claim, including behavior alleged outside the [applicable] time period, is permissible

for the purposes of assessing liability, [there must be] an act contributing to that

hostile environment . . . within the [applicable] time period.” Tademy v. Union Pac.

Corp., 614 F.3d 1132, 1140 (10th Cir. 2008) (emphasis and internal quotation marks

omitted).

      The filing period for this claim commenced May 3, 2010, 45 days before

Ms. Marquez sought EEO counseling on June 17, 2010. Ms. Marquez has alleged no

hostile-work circumstances occurring within the filing period.2 Consequently, we

affirm the district court’s grant of summary judgment in the GSA’s favor on this

claim, albeit for different reasons than the district court. “[W]e may affirm a

district-court judgment on any ground appearing from the record so long as the

litigants had a fair opportunity to develop the record and to address the ground on

which we rely.” Center For Native Ecosystems v. Cables, 509 F.3d 1310, 1324

(10th Cir. 2007) (citation omitted).

      D. Title VII Retaliation–Listed as Hernandez Witness

      Ms. Marquez alleges that Ms. Faulkner retaliated against her for being listed as

a witness in an EEO proceeding filed by Jaime Hernandez, although she did not



2
       Even if we considered as contributing to a hostile work environment the list of
allegedly harassing conduct Ms. Marquez relies on for her claim concerning the
Hernandez EEO matter, see Aplt. Br. at 29-31, she has not made clear the dates on
which that conduct occurred, and the record indicates that none of the conduct fell
within the filing period.


                                          -7-
testify in that proceeding.3 The district court determined that Ms. Faulkner had been

unaware of Ms. Marquez’s proposed participation in the Hernandez matter, so she

could not have retaliated.

       In her December 2009 EEO complaint, Ms. Marquez alleged that she was

being retaliated against because she was aware of Mr. Hernandez’s EEO complaint

against Ms. Faulkner. Aplt. App. at 89. On appeal, she points to Ms. Faulkner’s

November 30, 2010, affidavit for evidence that Ms. Faulkner knew about

Ms. Marquez’s involvement in the Hernandez matter. But the cited portion of the

declaration states that Ms. Faulkner learned of Ms. Marquez’s EEO complaint after

that complaint was filed. Aplt. App. at 143; see also Aplee. Supp. App. at 123

(Faulkner’s Mar. 2, 2012, Declaration stating that “as of April 2010, [she] did not

know that Plaintiff was involved [as a] witness to Jaime Hernandez’s EEO

complaint”). “[I]nformation of which an employer is unaware cannot be inferred to

be the basis for the employer’s decision to take action against the employee.” Hinds

v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1200-01 (10th Cir. 2008). Therefore, the

district court correctly granted summary judgment in favor of the GSA on this

retaliation claim.




3
       The district court also addressed a retaliation claim based on Ms. Faulkner’s
alleged attempts to influence Ms. Marquez’s then-supervisor, Victoria Deal. She has
not pursued this claim on appeal, so we consider it to be abandoned. See Toevs,
685 F.3d at 911.


                                         -8-
      E. Privacy Act

      The Privacy Act states: “No agency shall disclose any record which is

contained in a system of records by any means of communication to any person, or to

another agency, except pursuant to a written request by, or with the prior written

consent of, the individual to whom the record pertains . . . .” 5 U.S.C. § 552a(b).

Some disclosures are authorized and do not violate the Privacy Act. See

id. § 552a(b)(1)-(12); 5 C.F.R. § 297.401. Ms. Marquez alleges that the GSA

violated the Privacy Act when Ms. Faulkner (1) told the staff that she was on medical

leave and had a cancer scare; and (2) mentioned to Patricia Honley, another GSA

employee, that the EEO complaints filed against Ms. Faulkner by Ms. Marquez and

Mr. Hernandez had been terminated.

      “For a plaintiff to succeed on a Privacy Act claim, [she] must demonstrate the

following four elements: (1) the information is a record within a system of records,

(2) the agency disclosed the information, (3) the disclosure adversely affected the

plaintiff, and (4) the disclosure was willful or intentional.” Wilkerson v. Shinseki,

606 F.3d 1256, 1268 (10th Cir. 2010). To be considered “intentional or willful”

under the Privacy Act, the disclosure must be “so patently egregious and unlawful

that anyone undertaking the conduct should have known it unlawful, or conduct

committed without grounds for believing it to be lawful or action flagrantly

disregarding others’ rights under the Act.” Id. (internal quotation marks omitted).




                                          -9-
       The district court held that the statement concerning Ms. Marquez’s medical

condition was based on the staff’s need for information and was authorized by

5 C.F.R. § 297.401(a). Ms. Marquez asserts that the cancer-scare information was

not work-related. She did not allege, however, that this information was revealed to

the entire staff. See Aplt. App. at 189-90. Nor does she dispute Ms. Faulkner’s

position that the disclosure was necessary to an investigator regarding Ms. Marquez’s

claim for medical and therapy expenses. On the claim that Ms. Faulkner violated the

Privacy Act by mentioning that the EEO complaints had been terminated, the district

court held that Ms. Faulkner’s statement was based on her personal knowledge and

was not information from a system of records.

       We agree with the district court’s reasoning. In addition, Ms. Marquez has

made no argument and pointed to no evidence that Ms. Faulkner’s disclosure of

information was “intentional or willful” within the meaning of the Privacy Act.

Accordingly, we affirm the grant of summary judgment in the GSA’s favor on the

Privacy Act claim.

III.   CONCLUSION

       The judgment of the district court is affirmed.


                                                  Entered for the Court


                                                  Wade Brorby
                                                  Senior Circuit Judge



                                         - 10 -
