                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                             February 7, 2013
                                     PUBLISH                Elisabeth A. Shumaker
                                                                Clerk of Court
                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 ALLSTATE SWEEPING, LLC, a
 Colorado limited liability company,

             Plaintiff - Appellee,
       v.                                             No. 12-1027
 CALVIN BLACK,

             Defendant - Appellant,

 and

 CITY AND COUNTY OF DENVER, a
 municipal corporation; APRIL
 HENDERSON; STEVE DRAPER;
 RUTH RODRIGUEZ, individually,

             Defendants.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                 (D.C. NO. 1:10-CV-00290-RBJ-MJW)


Cathy Havener Greer (William T. O’Connell, III and L. Michael Brooks, Jr., with
her on the briefs), Wells, Anderson & Race, LLC, Denver, Colorado, for
Defendant - Appellant.

Anne T. Sulton, Sulton Law Offices, Milwaukee, Wisconsin, for Plaintiff -
Appellee.


Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.
HARTZ, Circuit Judge.


      Plaintiff Allstate Sweeping, LLC (Allstate) is owned and operated by two

white women: Martha Krueger and Barbara Hollis. In January 2006 it began

performing pressure-washing services at Denver International Airport (DIA)

under a contract with the City and County of Denver (Denver). Although the

contract term was through July 2008, it was terminated by Denver on July 1,

2007. Defendant Calvin Black, a contract-compliance technician at DIA, was

assigned to monitor Allstate’s contract. Black is an African-American male.

      Allstate claims that it was subjected to gender- and race-based

discrimination and to retaliation for its complaints of discrimination. It filed suit

under 42 U.S.C. § 1983 in the United States District Court for the District of

Colorado against Denver and four DIA employees, including Black, claiming

violations of 42 U.S.C. § 1981, 42 U.S.C. § 2000d (Title VI) (alleged against

Denver only), and the Equal Protection Clause of the Fourteenth Amendment.

The district court granted summary judgment to all defendants except Black. It

held that there were genuine issues of fact regarding whether Black was motivated

by racial and gender bias and whether Black “created a hostile work environment

vis-à-vis the plaintiff by acting in such a way as to make plaintiff’s contract

unprofitable and its owners miserable.” Aplt. App., Vol. V at 1333. It did not

address Allstate’s retaliation claim. Black appeals the denial of his motion for

                                         -2-
summary judgment, contending that he is entitled to qualified immunity and that

we have jurisdiction to review the denial under the collateral-order doctrine.

      We hold that we lack jurisdiction to review the district court’s

determinations that there was sufficient evidence that Black was motivated by

racial and gender bias and that his actions made Allstate’s contract unprofitable,

because such sufficiency determinations are not reviewable under the collateral-

order doctrine. We do, however, have jurisdiction to review the legal sufficiency

of the claim that Black made Allstate’s “owners miserable” and to review the

sufficiency of the evidence of the retaliation claim (which the district court did

not consider), and we reverse the denial of summary judgment on those claims.

I.    BACKGROUND

      In support of its claims that Black made it lose money under its contract,

Allstate produced evidence that Black had directed Allstate to undertake tasks not

included in its contract and forced Allstate employees to sit idle for hours,

waiting to work in a particular area even though they could have performed tasks

elsewhere. To support its hostile-work-environment claim, Allstate offered

evidence that Black was unpleasant to work for; was “rude all the time,” id.,

Vol. I at 92, “pushy,” and “bossy” to Allstate employees, id., Vol. V at 1210;

“babys[at]” them “24/7,” id. at 1232; and “nitpick[ed]” whatever tasks they were

doing, id., Vol. I at 106. According to Allstate witnesses, on several occasions

Black screamed at Allstate employees and called them “stupid,” id. at 91; he told

                                         -3-
some Allstate employees, who were white women, that because they were “a little

overweight” they probably “couldn’t move as fast as a man could,” id. at 93; and

he spoke to Allstate’s owners in a “demeaning” way, as if they were “child[ren]”

rather than “equal adults,” id. at 104, even acting at meetings as if Krueger and

Hollis were not in the room. Because of Black’s behavior, Allstate employees

were returning from work crying; some quit.

      To show that Black’s conduct was motivated by discriminatory bias,

Allstate pointed to evidence of race- and gender-based comments by Black:

Black told Krueger that Allstate “probably didn’t know what [it] was doing”

because it was owned by women. Id., Vol. I at 93. After Allstate’s contract with

DIA was terminated, Black told an employee of another contractor several times

that one of Allstate’s owners was a “[c]razy bitch.” Id., Vol. V at 1209. And

although there is no evidence that Black made racially disparaging remarks in

front of Allstate’s owners, an Allstate employee testified that when he asked

Black why he would award a contract to an African-American-owned company

“that didn’t bid it to the specs,” Black responded that he was “just trying to help

[his] bros.” Id. at 1208.

      Allstate also alleges retaliation for its complaints of bias. It complained in

several ways. Krueger contacted the mayor’s office, DIA employees, and the

Denver Civil Rights Division, and also complained to Black directly. At a

meeting on May 16, 2007, Krueger informed April Henderson, a contract-

                                         -4-
compliance supervisor at DIA, that Allstate had “to be treated better” or she

would “ask to be taken out of the contract.” Id., Vol. IV at 983. On May 23

Black and another DIA employee conducted a surprise inspection of Allstate’s

equipment and told Allstate to fix and replace some of it. In a letter sent to

Henderson the following day, Hollis and Krueger again accused DIA employees

of discriminating against their company. They said that if they were forced to

purchase more equipment, Allstate would have to re-bid the contract. A week

later, Denver informed Allstate that it was terminating Allstate’s contract “for

[the] convenience of the city.” Id. at 853 (capitalization omitted). The contract

was officially terminated on July 1. After the termination DIA officials stated in

internal documents and in at least one email to the City Council that Allstate had

defaulted on its contract for lack of proper equipment and performance. And

Allstate allegedly was not paid $4,000 for work it had performed.

      Allstate filed this lawsuit against Denver and four DIA employees,

including Black. Against Black, Allstate alleged discrimination (based on race)

and retaliation in violation of 42 U.S.C. § 1981, and discrimination (based on race

and sex) and retaliation in violation of the Equal Protection Clause. The district

court granted the motions for summary judgment by all defendants except Black.

Explaining its denial of Black’s motion, the court wrote:

      The Court finds that plaintiffs have come forward with evidence
      sufficient to establish the existence of a genuine dispute of material
      fact concerning whether (1) whether [sic] Mr. Black created a hostile

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       work environment vis-à-vis the plaintiff by acting in such a way as to
       make plaintiff’s contract unprofitable and its owners miserable, and
       (2) whether [sic] he was motivated by bias in favor of African-
       Americans and African-American owned businesses and/or prejudice
       against white females and a white female owned business. . . .
               With respect to the second prong of the qualified immunity
       test, the Court finds that it is clear to any reasonable person that
       discrimination by a City employee against a company working under
       a contract with the City on the basis of race or gender is unlawful.

Id., Vol. V at 1333–34.

       Black appeals, arguing: (1) there was no evidence that he was motivated

by racial or gender animus; (2) he had no authority to take the alleged

discriminatory actions; (3) the law was not clearly established that Allstate could

bring a discrimination claim based on the hostile work environment suffered by

its owners and employees; and (4) he had no authority to take the alleged

retaliatory actions. 1

II.    DISCUSSION

       A.     42 U.S.C. § 1981 and the Equal Protection Clause

       Allstate’s discrimination claims under § 1981 and the Equal Protection

Clause have similar elements. “Section 1981 forbids all intentional racial

discrimination in the making and enforcement of private or public contracts.”

Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1134 (10th Cir. 2004). See

42 U.S.C. § 1981(a). It provides:

       1
        This appeal concerns only claims against Black in his individual capacity.
Official-capacity claims are really claims against Denver, see Graves v. Thomas,
450 F.3d 1215, 1218 (10th Cir. 2006), and the district court dismissed those.

                                         -6-
      (a) Statement of equal rights
      All persons within the jurisdiction of the United States shall have the
      same right in every State and Territory to make and enforce
      contracts, to sue, be parties, give evidence, and to the full and equal
      benefit of all laws and proceedings for the security of persons and
      property as is enjoyed by white citizens, and shall be subject to like
      punishment, pains, penalties, taxes, licenses, and exactions of every
      kind, and to no other.

      (b) “Make and enforce contracts” defined
      For the purposes of this section, the term “make and enforce
      contracts” includes the making, performance, modification, and
      termination of contracts, and the enjoyment of all benefits,
      privileges, terms, and conditions of the contractual relationship.

      (c) Protection against impairment
      The rights protected by this section are protected against impairment
      by nongovernmental discrimination and impairment under color of
      State law.

Id. § 1981(a)–(c). Independent contractors can state a discrimination claim under

§ 1981. See Bolden v. City of Topeka, 441 F.3d 1129, 1134–37 (10th Cir. 2006)

(ruling, however, that claim against municipality for violation of § 1981 must be

brought under § 1983); Brown v. J. Kaz, Inc., 581 F.3d 175, 181 (3d Cir. 2009)

(“We . . . agree with the decisions that hold that an independent contractor may

bring a cause of action under section 1981 for discrimination occurring within the

scope of the independent contractor relationship.”); Wortham v. Am. Family Ins.

Group, 385 F.3d 1139, 1141 (8th Cir. 2004) (“[The plaintiff’s] status as an

independent contractor . . . does not preclude her from pursuing a claim under

section 1981.”); Danco, Inc. v. Wal-Mart Stores, Inc., 178 F.3d 8, 14 (1st Cir.

1999) (independent contractors may sue under § 1981 on a hostile-work-

                                         -7-
environment theory because the statute “does not limit itself, or even refer, to

employment contracts but embraces all contracts”). To prove a claim under

§ 1981, an independent contractor must prove that because of racial animus it was

denied “benefits, privileges, terms, [or] conditions of the contractual

relationship.” 42 U.S.C. § 1981(b); see Wortham, 385 F.3d at 1141; Brown, 581

F.3d at 181–82 (elements of § 1981 claim “are generally identical” to those for a

Title VII claim). Also, we can assume, without deciding, that an independent

contractor can state a claim under § 1981 for retaliation against it for protesting a

violation of that statute. See Webster v. Fulton County, 283 F.3d 1254, 1257

(11th Cir. 2002) (independent contractor can state a claim for violation of § 1981

when it is not awarded a contract in retaliation for filing a § 1981 discrimination

lawsuit); see also Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 997–98 (10th

Cir. 2011) (employee can bring § 1981 retaliation claim).

      As for the Equal Protection Clause, it “commands that no State shall ‘deny

to any person within its jurisdiction the equal protection of the laws,’ which is

essentially a direction that all persons similarly situated should be treated alike.”

City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (quoting

the Clause). The Clause’s protections extend to disparate treatment based on race

and gender. See id. at 440–41. Black does not dispute that an independent

contractor can assert a claim for such discrimination against a municipal

employee. See Radentz v. Marion County, 640 F.3d 754 (7th Cir. 2011). Allstate

                                          -8-
also brought a retaliation claim under § 1983 asserting a denial of equal

protection, but this court does not recognize such a claim. See Maldonado v. City

of Altus, 433 F.3d 1294, 1308 (10th Cir. 2006), overruled on other grounds,

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).

      One special type of discrimination claim is a claim that the defendant

created a hostile work environment. We will assume, without deciding, that such

a claim can be brought as a § 1983 claim based on both § 1981 and the Equal

Protection Clause. The district court said that there was “a genuine dispute of

material fact concerning whether . . . Black created a hostile work environment

vis-à-vis the plaintiff by acting in such a way as to make plaintiff’s contract

unprofitable and its owners miserable.” Aplt. App., Vol. V at 1333. We are

puzzled, however, by the characterization as a hostile-work-environment claim of

the claim that Black took actions to make Allstate’s contract unprofitable. That

appears to us to be a plain vanilla discrimination claim. We therefore will

recharacterize that claim as a simple discrimination claim and characterize only

the making-the-owners-miserable claim as a hostile-work-environment claim.

      B.     Qualified Immunity and Appellate Jurisdiction

      Black contends that the district court should have granted him summary

judgment on Allstate’s claims of discrimination and retaliation because he was

entitled to qualified immunity. Under the qualified-immunity doctrine a public

officer or employee is subject to liability only for violating a federal

                                          -9-
constitutional or statutory right that was clearly established at the time of the

violation. A right is clearly established if “the contours of [the] right [were]

sufficiently clear that every reasonable official would have understood that what

he [was] doing violate[d] that right.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083

(2011) (brackets and internal quotation marks omitted). “[E]xisting precedent

must have placed the statutory or constitutional question beyond debate.” Id.

      Qualified immunity not only protects public employees from liability, it

also protects them from the burdens of litigation. See Mitchell v. Forsyth, 472

U.S. 511, 526 (1985). To effectuate this protection, the ordinary requirements for

appellate jurisdiction are relaxed in the qualified-immunity context. “Under

28 U.S.C. § 1291 an appellate court can review only a final decision, generally

one which ends the litigation on the merits and leaves nothing for the court to do

but execute the judgment.” Rieck v. Jensen, 651 F.3d 1188, 1190 (10th Cir. 2011)

(ellipsis and internal quotation marks omitted). In most circumstances the denial

of summary judgment is not appealable as a final decision, because it “leaves

much (often everything) to be decided.” Id. But the denial of a motion for

summary judgment based on a claim of qualified immunity may be a final

decision under the collateral-order doctrine. According to that doctrine an order

entered before final judgment is a final decision if it (1) “[is] effectively

unreviewable on appeal from a final judgment,” (2) “conclusively determine[s]

the disputed question,” and (3) “resolve[s] an important issue completely separate

                                          -10-
from the merits of the action.” Johnson v. Jones, 515 U.S. 304, 310 (1995)

(internal quotation marks omitted). The denial of a defendant’s motion for

summary judgment on qualified-immunity grounds will often satisfy those

requirements because (1) review after final judgment “would come too late to

vindicate one important purpose of qualified immunity—namely, protecting

public officials . . . from standing trial,” (2) the question of immunity from suit is

conclusively settled by allowing the case to proceed, and (3) the issue is likely to

be “completely separate from the merits of the action.” Id. at 312 (internal

quotation marks omitted). See Rieck, 651 F.3d at 1190–91. To be “completely

separate” from the merits, however, the qualified-immunity issue raised on appeal

must be an “abstract legal question[],” such as (1) whether the facts that the

district court ruled a reasonable jury could find would suffice to show a legal

violation, or (2) “whether that law was clearly established at the time of the

alleged violation.” Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010) (internal

quotation marks omitted). In contrast, “whether or not the pretrial record sets

forth a ‘genuine’ issue of fact for trial” is not an abstract legal question, and a

court of appeals lacks jurisdiction to review a district court’s ruling on such a

matter. Johnson, 515 U.S. at 320.




                                          -11-
          C.    Issues Over Which We Lack Jurisdiction

                1.    Insufficient Evidence of Racial or Gender Animus

          Black argues that he was entitled to summary judgment on the

discrimination claims against him because there was insufficient evidence that he

harbored an animus against Allstate based on the race or gender of its owners.

We acknowledge that the evidence is thin; but we lack jurisdiction to afford him

relief.

          Black’s argument presents no abstract issue of law. Rather, he asks this

court to determine “a question of evidence sufficiency, i.e., which facts [Allstate]

may, or may not, be able to prove at trial.” Rieck, 651 F.3d at 1191 (internal

quotation marks omitted). Whether the district court correctly determined that

there is sufficient evidence of animus to create a genuine issue of fact is not one

of the “abstract legal questions” we may normally decide on appeal from a

district court’s denial of a qualified-immunity motion for summary judgment.

Lewis, 604 F.3d at 1225 (internal quotation marks omitted).

                2.    Insufficient Evidence of Actions Making the Contract
                      Unprofitable

          Black also argues that he was entitled to summary judgment on Allstate’s

discrimination claim because he did not have the authority to take the alleged

discriminatory actions against Allstate. The district court, however, ruled that

there was “a genuine dispute of material fact concerning whether . . . Mr. Black


                                          -12-
created a hostile work environment vis-à-vis the plaintiff by acting in such a way

as to make plaintiff’s contract unprofitable . . . .” Aplt. App., Vol. V at 1333. In

other words, the district court found that there was sufficient evidence for a jury

to find that Black took discriminatory actions against Allstate. Again, we cannot

review the district court’s ruling on whether there was a genuine issue of fact.

Black is not raising an abstract issue of law, such as whether government

contractors have a clearly established right, under § 1981 and the Equal

Protection Clause, not to lose money under their contracts because of

discrimination based on the race or gender of their owners. As with Black’s first

issue, we lack jurisdiction to consider this argument.

      D.     Hostile Work Environment

      We do, however, have jurisdiction to review Black’s challenge to Allstate’s

discrimination claim based on a typical allegation of a hostile work

environment—Black’s allegedly making Allstate’s owners miserable. As to that

claim, Black raises an abstract legal question: whether the law was clearly

established that § 1981 or the Equal Protection Clause bars discrimination against

a contractor by making its owners miserable. We agree with Black that the

validity of such a discrimination claim was not clearly established at the time of

Black’s actions.

      As stated previously, we will assume, without deciding, that hostile-work-

environment claims are proper under both § 1981 and the Equal Protection

                                         -13-
Clause. But Allstate cites to no cases, nor can we find any, holding that the

harassment endured by the principals of an artificial entity can give rise to a

racial- or gender-discrimination claim on behalf of the entity itself, absent

independent injury to the entity. Indeed, it is not clear to us that an artificial

entity could ever prevail on a hostile-work-environment claim. Such a claim has

a subjective, as well as an objective, component; there must be proof that “the

plaintiff was offended by the work environment.” Hernandez v. Valley View

Hosp. Ass’n, 684 F.3d 950, 957 (10th Cir. 2012) (internal quotation marks

omitted). Being offended presupposes feelings or thoughts that an artificial entity

(as opposed to its employees or owners) cannot experience.

         Perhaps Allstate had a right not to be injured because of hostility directed

at its owners or employees—for example, by losing money because its employees

had lower morale or quit. See PowerComm, LLC v. Holyoke Gas & Elec. Dept.,

657 F.3d 31, 37 (1st Cir. 2011). But Allstate has made no such claim. Black was

therefore entitled to summary judgment on Allstate’s hostile-work-environment

claim.

         E.    Retaliation

         Finally, Black argues that he was entitled to summary judgment on

Allstate’s retaliation claim against him. His argument is simply that he did not

have authority to take the retaliatory actions alleged in Allstate’s complaint.




                                           -14-
      The posture of this argument is different from that of the issues over which

we lack jurisdiction—discriminatory animus and authority to take discriminatory

actions. On this issue we have no ruling by the district court that the evidence

was sufficient to create a genuine issue of fact. Indeed, the district-court opinion

does not address the retaliation claim.

      In this circumstance it is left to us to determine whether there is sufficient

evidence in this record to create genuine issues of fact upon which a retaliation

claim can be founded. As we said recently, when the district court “fails to

identify the particular charged conduct that it deemed adequately supported by the

record, we may look behind the order denying summary judgment and review the

entire record de novo to determine for ourselves as a matter of law which factual

inferences a reasonable jury could and could not make.” Lewis, 604 F.3d at 1225.

      Our discussion can be brief. On appeal Allstate argues that Black retaliated

against it both during the contract and after it was terminated by manipulating

Allstate’s work schedule, creating a hostile work environment, and spreading

false reports that Allstate had defaulted on its contract and gone out of business.

We have reviewed the portions of the record cited by Allstate and fail to find any

evidence of retaliation. There is no evidence that any action by Black was in

response to a complaint by Allstate of racial or gender discrimination (or, in most

cases, was even after such a complaint); and some of the alleged retaliatory

actions would not support a retaliation claim because they were not severe enough

                                          -15-
to deter a reasonable person from claiming discrimination. See Burlington N. &

Santa Fe Ry. Co., 548 U.S. at 68 (alleged retaliatory actions must be sufficiently

adverse that they may well “have ‘dissuaded a reasonable worker from making or

supporting a charge of discrimination’” (internal quotation marks omitted)).

        Moreover, Allstate did not preserve in district court the arguments raised in

its appellate brief. The § 1981 retaliation claim in the Amended Complaint states

only:

               The individual Defendants, acting under the color of law,
        personally and individually participated in intentionally
        discriminating against Allstate on the basis of the race of Allstate’s
        owners/operators, and/or in retaliation for Allstate complaining about
        racial discrimination, when they took materially adverse actions
        against Allstate, including but not limited to the following actions:
               a) falsely reporting, in and after May 2008, that Allstate
        defaulted on its contract; and
               b) denying, in 2008 and 2009, Allstate’s repeated requests for
        payment of approximately $4,000 due it for services rendered.

Aplt. App., Vol. I at 41 (§ 1981 retaliation claim). Black’s motion for summary

judgment points to evidence that he did not report that Allstate defaulted on the

contract, did not deny the requests for $4,000, and did not have authority to order

Allstate to purchase new equipment or terminate its contract. Yet Allstate’s

response to the summary-judgment motion does not attempt to dispute that

evidence, or even refer to it. The response (which addresses the summary-

judgment motions of all the defendants) mentions the retaliation claims

collectively; but even its “Statement of Additional Disputed Facts,” id., Vol. IV at


                                          -16-
796 (capitalization omitted), does not allege any retaliatory action by Black.

Because the assertions of retaliatory action by Black that are made in Allstate’s

appellate briefs were not made below, it cannot rely on them in this court. See

Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1143 (10th Cir. 2009) (“Absent

extraordinary circumstances, we will not consider arguments raised for the first

time on appeal.”). We conclude that Black is entitled to qualified immunity on

the retaliation claim.

III.   CONCLUSION

       We REVERSE and REMAND for entry of summary judgment in favor of

Black on two of Allstate’s claims: (1) that Black created a hostile work

environment for Allstate, and (2) that Black retaliated against Allstate. We lack

jurisdiction to consider Black’s other arguments, and so DISMISS the remainder

of the appeal. We REMAND to the district court for further proceedings on

Allstate’s claim that Black discriminated against it by taking actions (motivated

by racial and gender animus) that caused it to lose money under the contract.




                                        -17-
