                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        February 10, 2006
                            FOR THE TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                           Clerk of Court

    OLIVER TAPIA,

                Plaintiff-Appellant,
    v.                                                   No. 05-2028
                                                 (D.C. No. 03-0378 MV/WDS)
    CITY OF ALBUQUERQUE,                                   (D. N.M.)

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before TYMKOVICH , PORFILIO , and BALDOCK , Circuit Judges.



         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.

         Oliver Tapia sued his employer, the City of Albuquerque, under Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3, alleging that he was

retaliated against for exercising his rights under Title VII. The district court


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
granted the City’s motion for summary judgment, holding that Tapia had not

presented a prima facie case of retaliation. We exercise jurisdiction under

28 U.S.C. § 1291, and affirm.

                                  I. Background

      Tapia began working for the City in 1987. During the relevant time, from

April 2000 until August 2002, Aplt. Br. at 7, he worked for the Public Works

Department as a field collector, turning on and off water connections and

investigating illegal water usage. Tapia’s direct supervisors were first Tina

Archuleta and later Barbara Romero. They in turn reported to Sheron Matson,

Manager of Customer Services for the Public Works Department.

      Sometime in 2001, Tapia reported to his union that he was subjected to

harassment and discrimination. In a letter sent to Matson by the union on August

28, 2001, which followed up on an August 17 meeting, the union representative

set forth Tapia’s complaints that he was treated unfairly, he was required to

adhere to certain policies and job requirements that other employees in similar

jobs did not have to adhere to, and he was monitored. Aplee. Supp. App. at 45.

The letter also stated that if Tapia continued to be monitored and required to

perform additional duties, the union would file a formal grievance. After she

received this letter, Matson asked for more specific information, but she received




                                        -2-
none. Id. at 158-59. She did not alter her management of Tapia.    Id. at 159.

No formal grievance was ever filed.

      From September 14, 2001, to November 14, 2001, Tapia took Family and

Medical Leave Act (FMLA) leave for work-related depression and stress. Before

returning to work, he requested a transfer due to conflicts with Archuleta and

Matson. In a memorandum dated November 26, 2001, LaVerne Armijo, a City

Labor Relations Officer, stated that she had told Tapia in a November 6 meeting

that she could not approve a transfer for three reasons: (1) a transfer was not

available because of a hiring freeze; (2) the recent change in administrations after

the November elections; and (3) Tapia’s reason—his dislike of Matson and

Archuleta—was not a favored basis for a transfer. Aplt. App. at 113. The

memorandum also noted that when Armijo told Tapia that it would be another

month before she could finally determine if he could be transferred, he responded

that if she put him back in his same job, he was afraid he would “knock her

[meaning either Archuleta’s or Matson’s] head off.”    Id. Armijo warned him that

this was a serious threat.

      On November 19, 2001, Tapia filed a complaint with the Equal

Employment Opportunity Commission (EEOC) asserting that he had been

retaliated against and the retaliation consisted of Matson watching his work more

closely than she watched the work of others. On December 4, the City received


                                          -3-
notice of the charge. That same day, Matson, who had no knowledge of the

EEOC complaint,    1
                       gave Tapia a letter of instruction directing him not to make

verbal threats to employees. The letter warned that future disciplinary action was

possible if Tapia made another threat.     Id. at 112. The Public Works Department

received notice of the EEOC charge on December 6.

      In a July 23, 2002 letter, Tapia again requested a transfer based on

perceived problems with Matson. Accordingly, on August 12, he was transferred

to a different location within the same department, reporting to a different

supervisor. In 2003, Tapia applied for a new position as a utility technician.

Although he was selected for the job by a committee, the Department Director,

who had final hiring authority, chose other persons he deemed more qualified for

the job.

      Also in 2003, Tapia filed this Title VII action asserting retaliation. In

response to the City’s motion for summary judgment, Tapia alleged that he

suffered five separate adverse employment actions: (1) he was required to

perform jobs that other employees were not required to perform; (2) unlike other



1
      Tapia testified at his deposition that he did not tell Matson that he had filed
an EEOC complaint, and he did not know when she learned of it. Neither the
pages of Matson’s deposition included in the parties’ appendices nor her affidavit
indicate that she knew of the EEOC complaint. Although the record shows that
Matson knew about the union letter, the record does not show that she had
knowledge of Tapia’s EEOC activity.

                                            -4-
employees, his supervisors monitored him in a harassing and retaliatory way;

(3) he was disciplined by the letter of instruction; (4) he was subjected to

continuing harassment after he returned to work following his FMLA absence,

filed his EEOC complaint and made other informal complaints to his supervisors;

and (5) he was denied a transfer to the utility technician position for which he was

selected and qualified.

       The district court granted the City’s motion for summary judgment, finding

that Tapia failed to present a prima facie case of retaliation. The court found that

only the second claim—that he was monitored in a harassing manner by his

supervisors—could constitute an adverse employment action, and only if the

harassment was sufficiently severe. But the court also found that Tapia failed to

show a causal link between his supervisor’s behavior and his protected activities.

                                       II. Analysis

       We review the district court’s grant of summary judgment de novo, viewing

the record evidence in the light most favorable to Tapia.        See Sealock v.

Colorado , 218 F.3d 1205, 1209 (10th Cir. 2000). “We affirm unless [he] points

to evidence in the record establishing a genuine issue of material fact.”         Wells v.

Colo. Dep’t of Transp. , 325 F.3d 1205, 1209 (10th Cir. 2003) (citing

Fed. R. Civ. P. 56(c)). He cannot create a genuine issue of material fact with




                                             -5-
unsupported, conclusory allegations.      Annett v. Univ. of Kan. , 371 F.3d 1233,

1237 (10th Cir. 2004).

       Title VII prohibits retaliation against an employee who opposes any

unlawful employment practices or files a charge with the EEOC.            See 42 U.S.C.

§ 2000e-3(a). Because there is no direct evidence of retaliation in this case,

McDonnell Douglas Corp. v. Green       , 411 U.S. 792 (1973), provides the proper

three-step framework for analysis.     See Annett , 371 F.3d at 1237. Under that

framework, an employee must first present a prima facie case of retaliation.         Id.

If the employee does so, the burden then shifts to the employer “to produce a

legitimate, nondiscriminatory justification for taking the disputed employment

action.” Id. If the employer satisfies this burden, the employee then must provide

evidence that the employer’s proffered reasons are merely a pretext for

discrimination.   Id. Like the district court, we conclude that Tapia failed to show

a prima facie case of retaliation. Thus, we do not address the last two steps of the

analysis.

       For a prima facie case of retaliation, an employee must prove that (1) he

“engaged in protected opposition to discrimination;” (2) he suffered “an adverse

employment action”; and (3) “there exists a causal connection between the

protected activity and the adverse action.”         Stover v. Martinez , 382 F.3d 1064,

1071 (10th Cir. 2004). It is undisputed that Tapia met the first requirement.


                                              -6-
The City does not dispute that Title VII protected Tapia against discrimination for

filing an informal union grievance in August 2001 and an EEOC charge in

November 2001.

       The second prima-facie case requirement is that Tapia prove that he

suffered an adverse employment action. “An adverse employment action

constitutes ‘a significant change in employment status, such as hiring, firing,

failing to promote, reassignment with significantly different responsibilities, or a

decision causing a significant change in benefits.’”    Annett , 371 F.3d at 1237

(quoting Burlington Indus., Inc. v. Ellerth    , 524 U.S. 742, 761 (1998)). Although

what constitutes an “adverse employment action” is inherently a fluid and

fact-based consideration, “a mere inconvenience or an alteration of job

responsibilities will not suffice.”   Id. at 1239 (quotations omitted).

       On appeal, Tapia argues that the district court incorrectly found only one

adverse employment action—the allegedly harassing behavior of his supervisors

of following him and monitoring him while he was working. He contends he also

suffered two other adverse employment actions: (1) when he received the letter

of instruction and (2) when he did not receive a transfer. The City argues that

none of these three constitutes an adverse employment action.

       We agree with the district court that sufficiently severe harassing,

following, and monitoring of an employee could create an adverse employment


                                              -7-
action. 2 Cf. Gunnell v. Utah Valley State Coll.    , 152 F.3d 1253, 1264 (10th Cir.

1998) (recognizing that co-worker hostility or retaliatory harassment if

sufficiently severe may be adverse employment action). In this case, however, the

evidence of Tapia’s being followed consists only of his own uncorroborated

deposition testimony and nothing else. He asserts, for example, that Matson,

Romero, or Archuleta followed him, although this occurred both before and after

he engaged in protected activity. But Matson, Romero, and Archuleta deny his

assertions. And none of Tapia’s co-workers provided testimony to support these

allegations. In short, no evidence in the record, apart from Tapia’s deposition

testimony, supports his claim. Tapia’s unsupported assertions, however, “carry no

probative weight in summary judgment proceedings.”           See Bones v. Honeywell

Int’l, Inc. , 366 F.3d 869, 875 (10th Cir. 2004). His mere subjective belief of

discrimination was insufficient to preclude the grant of summary judgment.

Stover , 382 F.3d at 1074 n.2;   see also Miller v. Auto. Club of N.M., Inc.   , 420 F.3d

1098, 1122 (10th Cir. 2005) (recognizing plaintiff’s own suspicions are

insufficient to establish prima facie case).

       Also, Tapia asserts that Matson monitored his work, and that the

monitoring humiliated him and caused him stress. Some deposition testimony


2
      While Tapia mentions this alleged adverse employment action in his
appellate brief, his actual argument focuses only on the letter of instruction and
requests for a transfer.

                                            -8-
supports Tapia’s assertion that Matson asked other employees to monitor his

work. Gerald Chavez, for example, testified that Matson had asked him a few

times to check to see if water could be turned off when Tapia indicated that it

could not be. Aplt. App. at 117. Another co-worker, Elias Sanchez, also did so

on two occasions.    Id. In addition, Loretta Rael—a co-worker—testified at her

deposition that Matson periodically checked Tapia’s work logs and made

photocopies of them.    Id. at 124. Also, Rael stated that Matson timed how long it

took Tapia to get to a job and to complete it.     Id.

       While the record is clear that Matson did monitor Tapia’s work, the record

is equally clear that Tapia did not suffer adverse employment action due to the

monitoring. No change in his employment status occurred: his job, pay and

benefits at all times remained the same.     See Annett , 371 F.3d at 1237 (requiring

significant change in employment status for adverse employment action). Thus,

under the circumstances presented here, the district court incorrectly concluded

the harassing, following, and monitoring constituted an adverse employment

action.

       Next, Tapia argues that the letter of instruction constituted an adverse

employment action by the City. He contends that the letter “[wa]s a      per se act of

harm to [his] reputation, humiliating, and dramatically adverse.” Aplt. Br. at 18.

He further asserts that the letter resides in his personnel file and could adversely


                                             -9-
affect his future employment. He characterizes the letter as discipline imposed

within two weeks of his filing an EEOC charge.       3



       It is true that warning letters and reprimands can be adverse employment

actions. Medina v. Income Support Div.       , 413 F.3d 1131, 1137 (10th Cir. 2005).

“A reprimand, however, will only constitute an adverse employment action if it

adversely affects the terms and conditions of the plaintiff’s employment—for

example, if it affects the likelihood that the plaintiff will be terminated,

undermines the plaintiff’s current position, or affects the plaintiff’s future

employment opportunities.”       See id.

       Like the district court, we cannot conclude that the letter of instruction

Tapia received constituted adverse employment action. The letter was not

disciplinary. It did not affect his pay, benefits, or employment status.   Cf. Heno v.

Sprint/United Mgmt. Co. , 208 F.3d 847, 857 (10th Cir. 2000) (finding no adverse

action under similar circumstances). Indeed, he continued to work for the Public

Works Department, and the City subsequently approved his transfer to another

job, just as he requested. The fact that the letter indicates that Tapia could be

disciplined for a future threat is not enough to make the letter itself disciplinary



3
       Tapia maintains that his comment about knocking a superior’s head off was
not a verbal threat and the perception that it was a threat was flawed. Regardless
of whether he intended to threaten anyone, his comment was reasonably perceived
to be a threat.

                                            -10-
action. Cf. Jeffries v. Kansas , 147 F.3d 1220, 1232 (10th Cir. 1998) (deciding

that unrealized threats do not rise to level of actionable retaliation). Finally, the

Public Works Department did not even receive notice of the EEOC action until

two days after Tapia received the letter.

      Third, Tapia argues that the failure to transfer him to another job both in

2001 and after he filed his EEOC complaint and made other informal complaints

were adverse employment actions. He contends the City delayed his transfer

because he had made complaints. Also, he contends that the failure to transfer

him resulted in a deterioration of his health and caused him to be “humiliated and

damaged.” Aplt. Br. at 20.

      To support his argument, Tapia points to a letter he wrote to Ted Asbury,

the head of the Public Works Department on July 23, 2002, requesting a transfer

because he was harassed, monitored and discriminated against for no good reason.

The City, in fact, approved a transfer in response to this letter. Nothing in the

record indicates that Tapia was denied a transfer after he sought a job for which

he was qualified and for which the City was seeking applicants.     See Amro v.

Boeing Co. , 232 F.3d 790, 797 (10th Cir. 2000).

      The City’s failure to select Tapia for the utility technician position also was

not an adverse employment action, because, as the district court found, the

position initially would have resulted in an immediate demotion for Tapia. Any


                                            -11-
future opportunities related to that job could not create an adverse employment

action because those opportunities depended upon his completing certification and

passing through training levels over a two to three year period.   4



       Because Tapia has failed to establish an adverse employment action, he

cannot establish a prima facie case of retaliation. We therefore conclude that the

district court correctly granted summary judgment in favor of the City.

       The judgment of the district court is AFFIRMED.        5




                                                        Entered for the Court



                                                        Timothy M. Tymkovich
                                                        Circuit Judge




4
       Tapia does not continue to assert on appeal that the alleged change in job
duties or the alleged continuing pattern of harassment after he returned to work
from his FMLA absence were adverse employment actions. We conclude these
issues are therefore waived.  See State Farm Fire & Cas. Co. v. Mhoon   , 31 F.3d
979, 984 n.7 (10th Cir. 1994) (deciding that issue not raised in opening appellate
brief is waived). Even if they were not waived, we conclude that the district court
correctly decided that they did not constitute adverse employment actions.

5
       The City argues that Tapia included documents in his appendix that were
not a part of the district court record. These documents are the EEOC
determination and the right to sue letter. Under Fed. R. App. P. 30(a)(1)(D),
these documents should not have been included in the appendix.

                                            -12-
