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

                             FOR THE TENTH CIRCUIT                       December 14, 2017
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
THERESA GARCIA,

      Plaintiff - Appellant,

v.                                                         No. 17-1221
                                                  (D.C. No. 1:16-CV-01386-RBJ)
RECONDO TECHNOLOGY,                                         (D. Colo.)

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
                  _________________________________

      Representing herself, Theresa Garcia appeals from the district court’s entry of

summary judgment in favor of her former employer, Recondo Technology, on her

claims of sexual discrimination and retaliation under Title VII of the Civil Rights Act

of 1964, see 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a). 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 in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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 parties are familiar with the facts, so we provide only a brief summary.

Garcia alleged that three Recondo employees sexually harassed her, creating a hostile

work environment, and that Recondo didn’t adequately address the situation. She

claimed one employee, Frank Delgado, made lewd comments to her for several

months. Garcia reported Delgado to Recondo’s human resources department after

she caught him peeking at her through a hole in her cubicle and telling her she looked

nice that day. Garcia also contended that a co-worker with a cubicle next to hers

frequently stared at her and told her she was beautiful, and that she overheard a

temporary male worker make lewd comments to another male co-worker. Garcia

further alleged that after she filed a charge about the harassment with the Equal

Employment Opportunity Commission (EEOC), Recondo retaliated against her by

altering her pay, denying her opportunities to work overtime or work from home,

giving her a smaller raise than another co-worker, withholding a health-insurance

rebate, and terminating her employment.

      The parties filed cross-motions for summary judgment. The district court

denied Garcia’s motion and granted Recondo’s motion. The court assumed Garcia

had been sexually harassed and that the harassment was severe enough to create a

hostile work environment but concluded that no reasonable juror could find Recondo

liable for the harassment. In support, the court relied on evidence it considered

undisputed that Garcia’s co-workers, not her supervisors, committed the harassment,

and that Recondo took prompt and effective remedial action each time Garcia

                                           2
reported the sexual harassment. Therefore, the court concluded, Garcia couldn’t

establish a prima facie hostile-environment case.

      Turning to Garcia’s retaliation claim, the district court first concluded that in

her EEOC charge, Garcia failed to raise the denial of overtime pay or the lack of a

raise commensurate with her co-worker. The court therefore dismissed those aspects

of the claim without prejudice for failure to exhaust administrative remedies.

      The court next assumed that Garcia established a prima facie case of

retaliation as to the other aspects of the retaliation claim but determined that no

reasonable juror could find Recondo’s explanations pretextual, largely because

Garcia provided only conjecture instead of evidence of pretext. In the partial

alternative, the court concluded that the termination portion of Garcia’s retaliation

claim failed because Garcia couldn’t establish the causation element of her prima

facie case; the supervisor who allegedly retaliated against her, Michele Hutchins,

wasn’t the Recondo employee who terminated her employment, and the termination

occurred roughly eight months after Garcia reported the discrimination.

                                   II. DISCUSSION

      We review an order granting summary judgment de novo, “applying the same

standards that the district court should have applied.” Fields v. City of Tulsa,

753 F.3d 1000, 1008 (10th Cir. 2014) (internal quotation marks omitted). A “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). “[W]e examine the record and all reasonable inferences that

                                            3
might be drawn from it in the light most favorable to the nonmoving party.” Fields,

753 F.3d at 1009 (internal quotation marks omitted).

      Because Garcia represents herself, we construe her filings liberally.

Nevertheless, pro se parties must follow the same procedural rules governing other

litigants. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.

2005). Federal Rule of Appellate Procedure 28(a) requires an appellant’s brief to

include, among other things, an “argument, which must contain . . . appellant’s

contentions and the reasons for them, with citations to the authorities and parts of the

record on which the appellant relies.” Fed. R. App. P. 28(a)(8). Importantly, Rule 28

applies equally to pro se litigants. Thus, Garcia’s brief must contain more than

generalized assertions of error and must include citations to supporting authority.

“When a pro se litigant fails to comply with that rule, we cannot fill the void by

crafting arguments and performing the necessary legal research.” Garrett, 425 F.3d

at 841 (alteration and internal quotation marks omitted).

      Garcia’s opening brief fails to comply with Rule 28(a)(8). Most of her

arguments are conclusory, and the only citation to the record she supplies is in

support of her contention that the district court erred by changing one of Recondo’s

affirmative defenses, see Aplt. Opening Br. at 8 (citing “R.13”). That citation is to a

page in her complaint and offers no readily apparent support for her contention.

Such inadequacies generally disentitle a litigant to review, but we retain discretion to

consider the appeal. Garrett, 425 F.3d at 841. We exercise that discretion here, but

only insofar as Garcia provided record citations in her reply brief, and only to the

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extent those citations provide support for intelligible, nonconclusory arguments for

reversal that she advanced in her opening brief. See Starkey ex rel. A.B. v. Boulder

Cty. Soc. Servs., 569 F.3d 1244, 1259 (10th Cir. 2009) (explaining that refusal to

consider arguments or evidence supporting an argument first advanced in an

appellate reply brief “protects us from publishing an erroneous opinion because we

did not have the benefit of the appellee’s response” (internal quotation marks

omitted)); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998)

(“Arguments inadequately briefed in the opening brief are waived, and bald

assertions in briefs that there are genuine issues of material fact are insufficient to

merit reversal of summary judgment.” (citations omitted)).

       Only two lines of argument fall within those parameters. The first of these

stems from Garcia’s contention that Delgado received a management bonus soon

after she complained to Recondo about his behavior. But the decision to give

Delgado a bonus in the wake of Garcia’s complaint doesn’t suggest that Recondo

failed to effectively remediate the harassment. As the district court explained, it is

undisputed that (1) Recondo discussed the situation with Delgado; (2) Delgado

agreed that his conduct could be considered inappropriate and that he would change

it; and (3) Garcia didn’t complain of any further harassment by him. See R., Vol. II

at 207, 214–15.

       Garcia has provided no reasoned argument that the district court erred in that

conclusion. Instead, Garcia appears to complain that Recondo gave Delgado a bonus

instead of taking more severe steps in disciplining him. But a company is permitted

                                            5
to exercise its judgment in deciding the severity of discipline to impose upon an

employee for various types of conduct. Kendrick v. Penske Tranps. Servs., Inc.,

220 F.3d 1220, 1233 (10th Cir. 2000). Our role “is . . . not to act as a super

personnel department that second guesses employers’ business judgments.” Id.

(internal quotation marks omitted).

      Relatedly, we will liberally construe Garcia’s argument regarding the bonus to

include the contention that Delgado was in fact a manager, an argument Recondo

addressed in its response brief and for which Garcia has provided supporting record

citations in her reply brief. Whether Delgado was a co-worker, as the district court

concluded, or a supervisor may affect the analysis regarding Recondo’s liability. As

the Supreme Court reiterated in Vance v. Ball State University, “[i]f the harassing

employee is the victim’s co-worker, the employer is liable only if it was negligent in

controlling working conditions.” 133 S. Ct. 2434, 2439 (2013). Different rules

apply, however, when the harasser is a supervisor:

      If the supervisor’s harassment culminates in a tangible employment action,
      the employer is strictly liable. But if no tangible employment action is
      taken, the employer may escape liability by establishing, as an affirmative
      defense, that (1) the employer exercised reasonable care to prevent and
      correct any harassing behavior and (2) that the plaintiff unreasonably failed
      to take advantage of the preventive or corrective opportunities that the
      employer provided.
Id. Significantly, Vance held “that an employee is a ‘supervisor’ for purposes of [the

employer’s] vicarious liability under Title VII if he or she is empowered by the

employer to take tangible employment actions against the victim.” Id. (emphasis

added).

                                            6
      As noted, the district court applied the negligence standard based on its view

that the undisputed evidence showed Delgado wasn’t such a supervisor. In

challenging that conclusion, Garcia first points to Exhibit 1 of her motion for

summary judgment, but we don’t see in that exhibit any information relevant to

whether Delgado was a manager. See R., Vol. I at 268–69. She also relies on a

position statement Recondo filed in response to Garcia’s EEOC charge identifying

Delgado as a “Data Analytics Reports Manager,” id. at 33 (emphasis added).

      Assuming the position statement shows a genuine factual dispute whether

Delgado was in fact some sort of manager, it doesn’t create a genuine factual dispute

regarding the key inquiry—whether Delgado was “empowered by [Recondo] to take

tangible employment actions against [Garcia],” Vance, 133 S. Ct. at 2439 (emphasis

added). Garcia hasn’t directed us to any evidence that Delgado had such power, and

the district court relied on the undisputed affidavit of a human resources

administrator explaining that “Delgado was a Business Analyst and worked in the

Data Analytics Department,” which had different management personnel than the

department where Garcia worked, and “[he] had no hiring or firing authority over any

employee,” including Garcia, and “no power to . . . recommend or substantially

influence such actions,” R., Vol. II at 146–47. The district court therefore properly

considered Recondo’s liability under the negligence standard applicable to

harassment by a co-worker.




                                           7
      Garcia’s next argument concerns the altered-pay aspect of her retaliation

claim. See Aplt. Opening Br. at 12–13.1 In her reply brief, Garcia cites two exhibits

attached to her motion for summary judgment in support of her claim that her

supervisor, Hutchins, shorted her paychecks in various ways in retaliation for her

complaint about Delgado. See Aplt. Reply Br. at 15. Only one of those exhibits is

relevant, comprising multiple emails concerning issues with her pay on numerous

occasions and Garcia’s summary of those emails, see R., Vol. I at 276–327.2 The

district court considered those emails along with affidavits from Recondo employees,

including Hutchins, and determined that together, the evidence showed legitimate

reasons for the pay issues—difficulties Hutchins had in attempting to correct what

she perceived to be problems on Garcia’s timesheets, and miscommunications


      1
         Garcia hasn’t challenged the district court’s conclusion that she failed to
exhaust two aspects of her retaliation claim (the denial of overtime opportunities and
the lack of a raise commensurate with a co-worker). Nor has she challenged the
district court’s conclusion that she failed to establish the termination portion of that
claim because she couldn’t establish the causation element of her prima facie case
given that Hutchins wasn’t the employee who terminated Garcia’s employment.
Additionally, she hasn’t advanced any nonconclusory arguments that the district
court erred in considering it undisputed that the change in her ability to work from
home was because Recondo had not yet completed establishing a company policy; at
the relevant time, Hutchins was only permitting employees living outside the Denver
metro area to telework, and Garcia lived within the metro area. Finally, Garcia
makes only a conclusory argument regarding Recondo’s refusal to pay her a health
insurance rebate, suggesting that the district court appeared biased towards her and
“creat[ed]evidence” allowing Recondo to keep her United Health rebate. Aplt.
Opening Br. at 8. Accordingly, we limit our consideration of her retaliation
arguments to the altered-pay issue.
      2
         The other exhibit consists of multiple emails about overtime and teleworking,
see id. at 333–37, and therefore isn’t relevant to the altered-pay issue.

                                           8
between Garcia and Hutchins that were promptly remedied. The district court

observed that Garcia provided only conjecture that those rationales were pretextual.

On appeal, Garcia hasn’t explained how the exhibits she points us to support her

argument that Recondo’s explanation for the pay issues was a pretext for unlawful

retaliation. And after reviewing them, we can’t say the district court erred in its

handling of this portion of Garcia’s retaliation claim. At most, the emails suggest

legitimate procedural errors in Hutchins’s handling of Garcia’s time records that

were corrected when Garcia brought them to the attention of Hutchins or other

Recondo employees.

                                 III. CONCLUSION

      The district court’s judgment is affirmed.


                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge




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