                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          June 2, 2006
                            FOR THE TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                          Clerk of Court

    ADRIAN OSORNIO; BETSY
    MARTINEZ; JESSICA WILLIAMS;
    ISTQUIA REYNA; MIGUEL
    FONTANET; MAYRA CARMONA,

                Plaintiffs-Appellants,                    No. 05-1379
                                               (D.C. No. 04-CV-1135-REB-PAC)
    v.                                                     (D. Colo.)

    T-MOBILE USA, INC.,

                Defendant-Appellee.


                            ORDER AND JUDGMENT *


Before BRISCOE, McKAY, and BRORBY, Circuit Judges.



         Plaintiffs Adrian Osornio, Betsy Martinez, Jessica Williams, Istquia Reyna,

Miguel Fontanet, and Mayra Carmona appeal from the district court’s entry of

summary judgment in favor of defendant T-Mobile USA, Inc., their former


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. 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.
employer, on their federal discrimination claims under Title VII of the Civil

Rights Act of 1964 and contract or promissory estoppel claims under Colorado

state law. We exercise jurisdiction under 28 U.S.C. § 1291 and we affirm.

                                 BACKGROUND

      Plaintiffs (who are Hispanic), were all members of a bi-lingual team of

customer-care representatives in T-Mobile’s call center in Colorado Springs,

Colorado. They responded to Spanish-speaking customers’ telephone requests for

assistance with T-Mobile wireless service. Mr. Osornio, as team coach, was held

responsible for the team’s service, productivity, and work environment. In her

supervisory role, his manager (who is also Hispanic) advised him orally that he

should not threaten his team members. On March 10, 2003, the manager met with

him and issued a written warning relating to his attendance, job performance, and

leadership characteristics such as approachability, interaction, and efforts to

maintain a positive work environment. The warning indicated that he was to

improve his performance by March 31, 2003.

      Two days later, the manager conducted a meeting attended by three

members of Mr. Osornio’s team. A team member who is not a party to this action

told the manager that Mr. Osornio had held a meeting at which he told team

members that he had received a written warning and that his job was at stake due

to the team’s failure to meet performance goals. The team member felt that the


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underlying message was that all of their jobs were in jeopardy. Plaintiff Mayra

Carmona generally corroborated this account.

      The manager discussed Mr. Osornio’s team meeting with other management

and human resources personnel. The group agreed that his comments amounted to

an implicit threat to team members’ continued employment and that he should be

discharged for creating a poor work environment. T-Mobile terminated

Mr. Osornio’s employment that day. Another Hispanic employee replaced

Mr. Osornio as coach.

      When management informed team members that Mr. Osornio would no

longer be their coach, the members expressed their disagreement with this

decision. Later, team-member plaintiffs signed two letters written by Mr. Osornio

and addressed to T-Mobile management, stating that Mr. Osornio had not

threatened their jobs. However, they did not contend that T-Mobile had

discriminated against Mr. Osornio, and they took no other action on his behalf.

After Mr. Osornio’s discharge, team-member plaintiffs perceived a deterioration

in their conditions of employment. For varying reasons, all of the plaintiffs have

left T-Mobile’s employ.

      Mr. Osornio and the team members filed this lawsuit. Mr. Osornio asserted

that he was subjected to disparate treatment based on his race or national origin.

Ms. Martinez, Ms. Williams, Ms. Reyna, Ms. Carmona, and Mr. Fontanet assert


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that T-Mobile retaliated against them for complaining about the company’s

treatment of Mr. Osornio. Mr. Fontanet also alleges that he was subjected to a

sexually hostile work environment through the actions of the manager who

initiated Mr. Osornio’s discharge. All plaintiffs assert that T-Mobile should be

held liable under a contract or promissory estoppel theory because it disregarded

the terms of its employee manual and other publications.

                                  DISCUSSION

      We review the district court’s summary judgment decision de novo,

applying the same legal standards that the district court applied. Pippin v.

Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1191 (10th Cir. 2006). “Summary

judgment is proper if the evidence, viewed in the light most favorable to the

non-moving party, presents no genuine issue of material fact and the court finds

the moving party is entitled to judgment as a matter of law.” Id.

Mr. Osornio’s discrimination claim

      Mr. Osornio claims that T-Mobile unlawfully discriminated against him

based on his race or national origin. Because he relied on circumstantial evidence

to support his claim, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),

provides the appropriate evaluation framework. See Garrett v. Hewlett-Packard

Co., 305 F.3d 1210, 1216 (10th Cir. 2002).

      McDonnell Douglas first requires the aggrieved employee to
      establish a prima facie case of prohibited employment action. . . . If

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      the employee makes a prima facie showing, the burden shifts to the
      defendant employer to state a legitimate, nondiscriminatory reason
      for its adverse employment action. If the employer meets this
      burden, then summary judgment is warranted unless the employee
      can show there is a genuine issue of material fact as to whether the
      proffered reasons are pretextual.

Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005) (quotations and citation

omitted).

      Both parties assume that Mr. Osornio has presented a prima facie case of

discrimination and proceed to the question of whether T-Mobile had a legitimate

basis for its termination decision. T-Mobile’s proffered reason is its professed

belief that, just two days after being placed on written warning, Mr. Osornio held

a team meeting at which he exhibited poor leadership and created a negative work

environment. Mr. Osornio counters that this reason can be determined pretextual

because: (1) he did not, in fact, threaten the team’s jobs; (2) T-Mobile failed to

follow its normal progressive discipline policy; and (3) T-Mobile did not comply

with Mr. Osornio’s request for a thorough post-termination investigation.

      Mr. Osornio’s pretext argument requires the court to “examine the facts as

they appear to the person making the decision,” to determine “not whether [the

employer’s] proffered reasons were wise, fair or correct, but whether [it] honestly

believed those reasons and acted in good faith upon those beliefs.” Rivera v. City

& County of Denver, 365 F.3d 912, 924-25 (10th Cir. 2004) (quotations omitted).

“[A]t issue is whether the evidence of Plaintiff’s misconduct presented to [the

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decisionmakers] was so weak that a rational factfinder could infer that [the]

expressed reason for terminating Plaintiff must have been pretextual.” Id. at 925.

Though Mr. Osornio denies that he threatened the team, he presents no evidence

challenging T-Mobile’s perception of his comments.

      And Mr. Osornio’s claim that T-Mobile fell short of his expectation of

progressive discipline adds little to the pretext analysis. “The mere fact that an

employer failed to follow its own internal procedures does not necessarily suggest

that . . . the substantive reasons given by the employer for its employment

decision were pretextual.” Randle v. City of Aurora, 69 F.3d 441, 454 (10th Cir.

1995) (emphasis omitted). Because it is uncontroverted that T-Mobile

decisionmakers did not believe a rigid policy existed, “even if the failure to

[follow procedure] was a mistake, it was not pretextual.” Id. at 455. Moreover,

T-Mobile’s refusal to re-investigate the situation and revisit its decision do not

affect the pretext question. See Hardy v. S.F. Phosphates Ltd., 185 F.3d 1076,

1081-82 (10th Cir. 1999) (rejecting plaintiff’s suggestions for additional avenues

of investigation and concluding that his claim of superficial investigation did not

“give rise to an inference of pretext”). Because there is no genuine issue of

material fact concerning pretext and because T-Mobile was entitled to judgment

as a matter of law, we affirm the district court’s decision granting the motion for

summary judgment on Mr. Osornio’s discrimination claim.


                                          -6-
Team members’ retaliation claims

      The team members assert that, after they opposed Mr. Osornio’s discharge,

they were subjected to illegal retaliatory conduct. A prima facie case of

retaliation under Title VII requires a showing that (1) plaintiffs were “engaged in

protected opposition to discrimination;” (2) they “suffered an adverse employment

action; and (3) a causal connection existed between the protected activity and the

adverse employment action.” Miller v. Auto. Club of N.M., Inc., 420 F.3d 1098,

1119-20 (10th Cir. 2005).

      Here, the team members’ case fails at the first element. There is no

evidence that any of them ever complained that Mr. Osornio’s discharge was

discriminatory or related to his national origin or race. Accordingly, T-Mobile

was entitled to summary judgment on the retaliation claims.

Mr. Fontanet’s sexual harassment claim

      Mr. Fontanet has raised a claim of hostile work environment sexual

harassment predicated on the actions of a female manager. “For a hostile

environment claim to survive a summary judgment motion, a plaintiff must show

that a rational jury could find that the workplace was 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.” MacKenzie v. City & County of Denver, 414 F.3d 1266,


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1280 (10th Cir. 2005) (quotation and alteration omitted). “Severity and

pervasiveness are evaluated according to the totality of the circumstances,

considering such factors as the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an employee’s work

performance.” Chavez v. New Mexico, 397 F.3d 826, 832 (10th Cir. 2005)

(citation and quotation omitted).

      Mr. Fontanet’s account depicts inappropriate conduct on the part of the

manager. According to Mr. Fontanet, the manager abused her authority to

supervise his telephone interactions by sitting unnecessarily close to him, placing

her hand on the upper half of his thigh, and letting it linger there. This happened

three times; the last time occurred after Mr. Fontanet asked her not to touch him.

Also, she greeted Mr. Fontanet twice with “a full-body hug, full contact,” Aplt.

App. at 197-203, even though he told her he didn’t “appreciate . . . [b]eing

touched or hugged,” id. at 201.

      The manager’s actions could be characterized as predatory and, at the very

least, incompatible with a proper work environment. Nevertheless, we cannot

conclude that the five incidents described by Mr. Fontanet are indicative of a

hostile work environment. See Penry v. Fed. Home Loan Bank, 155 F.3d 1257,

1260-63 (10th Cir. 1998) (holding that “four specific acts of unwanted physical


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contact” and several gender-based comments were insufficient for “a rational jury

[to] find that plaintiffs’ workplace was permeated with discriminatory

intimidation”). We affirm the grant of summary judgment for T-Mobile on

Mr. Fontanet’s hostile environment claims.

State-law contract and promissory estoppel claims

      All plaintiffs claim that, by discharging them without following progressive

disciplinary procedures, T-Mobile breached their contracts of employment or

broke other enforceable promises in violation of Colorado law. 1 In Colorado, “an

employee hired for an unspecified period of time is presumed to be an ‘at-will

employee’ whose employment may be terminated without cause or notice and

such termination does not give rise to a cause of action.” Evenson v. Colo. Farm

Bureau Mut. Ins. Co., 879 P.2d 402, 408 (Colo. Ct. App. 1993). This general rule

does not apply, however, if the employer has limited its right to terminate

employees. Id. at 408-09.

      A employer may make specific discipline and termination procedures part

of an express or implicit employment agreement.

            Whether an alleged promise is claimed to be part of an express
      contract or is asserted as the basis for the application of promissory
      estoppel, it must be sufficiently specific so that the judiciary can


1
      We note, however, that Ms. Carmona, Mr. Fontanet and Ms. Williams left
T-Mobile’s employ voluntarily. Their claims of constructive discharge have no
logical connection to claims of procedurally improper termination.

                                        -9-
      understand the obligation assumed and enforce the promise according
      to its terms.

            Thus, in order to constitute an enforceable promise, a
      statement by the employer must meet two requirements. It must
      disclose a promissory intent or be one that the employee could
      reasonably conclude constituted a commitment by the employer.

Hoyt v. Target Stores, 981 P.2d 188, 194 (Colo. Ct. App. 1998) (citation omitted).

In the absence of a written promise from the employer, the “issue should be

submitted to the jury if there is evidence that the employer’s supervisors treat the

disciplinary procedures as mandatory.” Mariani v. Rocky Mountain Hosp. & Med.

Serv., 902 P.2d 429, 435 (Colo. Ct. App. 1994). A mandatory policy is

demonstrated by evidence that “the procedures were used in each instance of

termination generally” and “the procedures were always used with reference to

employees in plaintiff’s department or at her level of management in the

company.” Id.

      Here, plaintiffs fail to provide any T-Mobile statement committing to

progressively severe discipline before a resort to termination. In fact, the only

documentary evidence shows T-Mobile’s explicit disclaimer of an intent to alter

the at-will employment relationship. Plaintiffs rely entirely on a former

manager’s testimony on her understanding that T-Mobile follows progressive

discipline steps with under-performing employees. Under the standards




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established by the Colorado courts, the former manager’s imprecise statements do

not demonstrate a mandatory progressive discipline policy. 2

      Because plaintiffs’ evidence does not suggest an alteration in their at-will

status, there are no material issues of disputed fact relative to their contract and

promissory estoppel claims. The district court correctly granted T-Mobile’s

summary judgment motion on these claims.

      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     Monroe G. McKay
                                                     Circuit Judge




2
       Plaintiffs’ brief also mentions that Mr. Osornio’s promissory estoppel claim
is based on the unfavorable results of T-Mobile’s post-termination alternative
resolution process. See Aplt. Br. at 25-26. He contradicts his own claim,
however, with the deposition statement that he learned of the process only after
his discharge. Aplt. App. at 464. An actionable promissory estoppel claim
requires a showing that the employee reasonably relied on the policy at issue to
his detriment. See Patzer v. City of Loveland, 80 P.3d 908, 912 (Colo. Ct. App.
2003) (explaining that reasonable reliance is an essential element of a promissory
estoppel claim).

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