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

                            FOR THE TENTH CIRCUIT                      December 20, 2012

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
MARILYN HARRISON,

             Plaintiff-Appellant,

v.                                                        No. 11-6333
                                                   (D.C. No. 5:10-CV-01124-C)
M-D BUILDING PRODUCTS, INC.,                              (W.D. Okla.)

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.


      Marilyn Harrison (“Harrison”) challenges the district court’s grant of summary

judgment to M-D Building Products, Inc. (“M-D”) on her employment discrimination

and retaliation claims, and claims of interference and retaliation based on her rights

under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2611-2619. Our

jurisdiction arises under 28 U.S.C. § 1291 and we affirm.



*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      Harrison alleged that her supervisor, Michael Wargo (“Wargo”), subjected her

to a hostile work environment by yelling at her about her work performance, giving

her unwarranted disciplinary notices, and otherwise verbally abusing her. Harrison

contacted human resources on several occasions to complain about Wargo’s behavior

but did not complain Wargo was motivated by discrimination in any of those

exchanges.

      In August 2009, Wargo yelled at Harrison for an extended period of time about

her work and a few days later, during another meeting with Wargo, Harrison lost

consciousness and passed out. She was taken to the emergency room. Shortly after

the incident, Harrison complained to Vernon McKenzie, M-D’s vice president of

human resources, about Wargo’s conduct but did not allege that she thought Wargo

was motivated by discrimination based on her race, age, or gender. Because her

doctor recommended she take time off from work, Harrison subsequently took her

full FMLA leave. During this time, Harrison filed a formal complaint with M-D that

she was discriminated against on the basis of her race, age, and gender, referring to

Wargo’s insulting and verbally abusive behavior. After an investigation, Wargo was

warned about his treatment of Harrison, but the company concluded there was no

indication that discrimination played a role.

      After her leave expired, Harrison and McKenzie discussed Harrison’s return to

work. McKenzie offered Harrison assurances that Wargo and other M-D employees

would treat her with dignity and respect, but Harrison informed McKenzie that she


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would not return if she had to interact with Wargo because prior assurances about

Wargo had failed. M-D then advised Harrison that it understood her refusal to work

as a voluntary resignation and terminated her employment.

      Harrison brought suit alleging discrimination on the basis of race, age, and

gender based on Wargo’s conduct. She also claimed that M-D was guilty of

retaliation, alleging that Wargo drafted a disciplinary letter about Harrison in

retaliation for Harrison’s complaints about him. Additionally, Harrison alleged

interference with her rights under the FMLA based on M-D’s failure to accommodate

Harrison’s request that she not work with Wargo and the subsequent termination of

her employment. After the completion of discovery, M-D moved for summary

judgment.

      In its summary judgment order, the district court found that Harrison was

unable to establish a prima facie case of discrimination because there was no

evidence that Wargo’s treatment of her was based on her race, age, or gender. With

respect to her retaliation claim, the court found that Harrison’s complaints to human

resources prior to Wargo drafting the letter could not constitute protected activity

because Harrison did not complain that Wargo was motivated by a discriminatory

animus. The court additionally found that Harrison failed to show she suffered an

adverse employment event.

      As to Harrison’s FMLA claims, the court noted that she received her full

FMLA leave and her position was held open for her once her leave ended. See


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Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007) (holding

that second element of interference claim requires showing that employee was

prevented from taking full 12 weeks of FMLA guaranteed leave, denied

reinstatement following leave, or denied initial permission to take leave).

M-D terminated her position only after she refused to return to work. Consequently,

the court concluded that Harrison could not show she was prevented from exercising

her rights under the FMLA nor could she establish a retaliation claim. Accordingly,

the district court granted summary judgment on all of Harrison’s claims. Harrison

now appeals.

      Having reviewed the briefs, the record, and applicable law, we conclude that

Harrison has not identified any reversible error in the district court’s analysis. We

therefore AFFIRM the district court’s grant of summary judgment for the reasons

articulated by the court in its order of December 13, 2011.


                                                Entered for the Court


                                                Jerome A. Holmes
                                                Circuit Judge




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