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

                           FOR THE TENTH CIRCUIT                       November 25, 2014

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
CURT C. MELIN,

             Plaintiff - Appellant,

v.                                                         No. 14-3071
                                                 (D.C. No. 2:12-CV-02426-EFM)
VERIZON BUSINESS, INC.,                                     (D. Kan.)

             Defendant - Appellee.


                            ORDER AND JUDGMENT*


Before KELLY, ANDERSON, and TYMKOVICH, Circuit Judges.


      Curt C. Melin sued his employer, Verizon Business, Inc., for violations of the

Americans with Disabilities Act (ADA) and Title VII. Mr. Melin alleged that

Verizon discriminated against him based on his disability and retaliated against him

for complaining about the discrimination. Verizon moved for summary judgment on

Mr. Melin’s claims and the district court granted the motion. Mr. Melin now appeals.

Exercising our jurisdiction pursuant to 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 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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

      Mr. Melin has worked for Verizon (or one of its predecessors) since 1992. In

2006, he was diagnosed with ulcerative colitis.1 During the relevant time period for

this lawsuit, he was working as an Account Manager, which required him to sell

Verizon services and products to certain assigned clients. He was compensated by

both a base salary and commissions.

      At some point in 2007, he was assigned to work under Roger Peterson. In

November 2009, Mr. Melin emailed Human Resources to complain about

Mr. Peterson’s behavior. He complained that Mr. Peterson was abusive and made

offensive comments. He further alleged his belief that Mr. Peterson did not want him

to succeed and had set disproportionately high sales goals for him. The email

complaint did not mention Mr. Melin’s ulcerative colitis or any discrimination or

harassment based on that medical condition. Verizon investigated Mr. Melin’s

allegations against Mr. Peterson, and ultimately concluded that Mr. Peterson had

violated its Code of Conduct by sending “rude and inappropriate emails,”2 making



1
       “[C]olitis is an inflammatory bowel disease, which causes ulcers within the
lining of the colon, with resulting symptoms of pain, bleeding, diarrhea, and weight
loss.” Aplt. Br. at 4.
2
       Some of these emails were sent in 2005 before Mr. Melin was diagnosed with
ulcerative colitis and before Mr. Peterson became his supervisor. None of the emails
referenced Mr. Melin’s medical condition. The emails did use foul language and
inappropriate sexual references to refer to Mr. Melin and his clients. See Aplt. App.,
Vol. V at 1023-24 (identifying emails with inappropriate language).


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“crude comments in front of direct reports and peers,” and discussing Mr. Melin’s

“physical ailments with others.” Aplt. App., Vol. IV at 723.

      In August 2010, Mr. Melin complained to Verizon that he was being retaliated

against for filing a complaint about Mr. Peterson’s behavior. Verizon conducted an

investigation into Mr. Melin’s second complaint, but concluded that Mr. Melin was

not subject to retaliation. Mr. Melin continues to be employed by Verizon as an

Account Manager.

      Mr. Melin filed an initial complaint with the Equal Employment Opportunity

Commission (EEOC) on March 4, 2010, and an amended complaint on November 1,

2010. The EEOC concluded that Mr. Peterson did violate the ADA’s confidentiality

provisions by disclosing information about Mr. Melin’s medical condition to other

employees. But the EEOC was “unable to conclude” that Mr. Melin “was harassed

and denied a reasonable accommodation; that his compensation/commission structure

was unfairly created and applied; [or] that he was undermined and not provided

support by management.” Id., Vol. I at 19. The EEOC issued a right-to-sue letter on

May 24, 2012. This action followed.

                                    II. Discussion

      The ADA prohibits “discriminat[ion] against a qualified individual on the

basis of disability in regard to job application procedures, the hiring, advancement, or

discharge of employees, employee compensation, job training, and other terms,

conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The ADA also


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includes an anti-retaliation provision, which prohibits discrimination against an

individual for opposing any act or practice made unlawful by the ADA. See id.

§ 12203(a). Title VII’s anti-retaliation provision prohibits discrimination against an

individual for opposing any act or practice made unlawful by Title VII

(discrimination based on race, color, religion, sex, or national origin). See id.

§ 2000e-3(a).

      Mr. Melin challenges the district court’s decision to grant summary judgment

in favor of Verizon on his ADA claims for discrimination and retaliation, and his

Title VII retaliation claim.3 “We review the district court’s grant of summary

judgment de novo, applying the same standard as the district court.” Crowe v. ADT

Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011). “Summary judgment is

appropriate ‘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.’” Id. (quoting Fed. R.

Civ. P. 56(a)).

      A. Retaliation Claims

      We address the retaliation claims first. Mr. Melin did not have direct evidence

of retaliation so his retaliation claims proceeded under the burden-shifting framework

of McDonnell Douglas. See Proctor v. United Parcel Serv., 502 F.3d 1200, 1207-08


3
       As part of Mr. Melin’s initial complaint to Verizon, he also complained that
Mr. Peterson made offensive comments and jokes about African Americans and
Jewish employees. He alleged that he was retaliated against for engaging in this
protected activity in violation of Title VII.


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(10th Cir. 2007) (ADA claim); Conroy v. Vilsack, 707 F.3d 1163, 1171 (10th Cir.

2013) (Title VII claim). Under that framework, he needed to first establish a prima

facie case of retaliation. In order to do so under the ADA or Title VII, he had to

show: “(1) that he engaged in protected opposition to discrimination, (2) that a

reasonable employee would have found the challenged action materially adverse, and

(3) that a causal connection existed between the protected activity and the materially

adverse action.” Proctor, 502 F.3d at 1208 (internal quotation marks omitted);

Conroy, 707 F.3d at 1181 (same). Verizon did not contest that Mr. Melin engaged in

protected activity by making internal complaints and filing charges with the EEOC.

       On his ADA retaliation claim, the district court concluded that Mr. Melin had

failed to show that any of his alleged incidents of retaliation rose to the level of a

materially adverse action. The court further concluded that, even if they did rise to

that level, Mr. Melin had failed to show a causal connection between the actions and

his protected activity.

       The district court reached the same conclusion with respect to Mr. Melin’s

Title VII retaliation claim, noting that Title VII claims are now subject to a

heightened “but-for” causation standard, see Univ. of Tex. Sw. Med. Ctr. v. Nassar,

133 S. Ct. 2517, 2534 (2013); Davis v. Unified Sch. Dist. 500, 750 F.3d 1168, 1170

(10th Cir. 2014). The district court explained that Mr. Melin could not “show that

but for his complaint, he would not have suffered these materially adverse acts.”

Aplt. App., Vol. V at 1041.


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      We agree with the district court that Mr. Melin failed to establish a prima facie

case of retaliation under the ADA or Title VII. The district court conducted a

thorough and well-reasoned analysis of those claims and we see no need to repeat it

here. We therefore affirm the district court’s decision on the retaliation claims for

substantially the same reasons stated in the district court’s Memorandum and Order

dated March 12, 2014.

      B. Disability Discrimination Claim

      We now turn to Mr. Melin’s disability discrimination claim. As with his

retaliation claims, Mr. Melin did not have direct evidence of disability discrimination

so he was required to establish a prima facie case of discrimination under the

McDonnell Douglas framework, see EEOC v. C.R. England, Inc., 644 F.3d 1028,

1038 (10th Cir. 2011). To do so, he needed to show that he “(1) is a disabled person

as defined by the ADA; (2) is qualified, with or without reasonable accommodation,

to perform the essential functions of the job . . . ; and (3) suffered discrimination by

an employer . . . because of that disability.” Id. at 1037-38 (internal quotation marks

omitted). In order to satisfy the third prong, “a plaintiff generally must show that he

has suffered an adverse employment action because of the disability.” Id. at 1038

(internal quotation marks omitted). The district court determined that Mr. Melin

could not establish a prima facie case of discrimination because he failed to make the

requisite showing on the first and third prongs. Mr. Melin argues that the district




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court erred in concluding that he could not establish a prima facie case of

discrimination.

         Mr. Melin first asserts that the district court erred in its determination on the

first prong because the district court used an outdated statutory definition in

analyzing whether Verizon regarded him as disabled. Congress did amend the ADA,

effective January 1, 2009, to provide that a person is regarded as disabled if they

have an “actual or perceived physical or mental impairment whether or not the

impairment limits or is perceived to limit a major life activity.” 42 U.S.C.

§ 12102(3)(A). We agree that the district court did not use this new definition when

analyzing Mr. Melin’s claim. We need not address, however, how the district court’s

use of the incorrect definition impacted its analysis of the first prong because the

district court further determined that Mr. Melin had also failed to meet the third

prong.

         The third prong requires a showing that Mr. Melin suffered an adverse

employment action because of his disability. “An adverse employment action

includes acts that constitute 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.” Dick v.

Phone Directories Co., Inc., 397 F.3d 1256, 1268 (10th Cir. 2005) (internal quotation

marks omitted).




                                             -7-
      The district court noted that Mr. Melin had not suffered any adverse

employment actions based on the traditional circumstances listed above. The court

determined that Mr. Melin had alleged only one adverse employment action with

respect to his discrimination claim: Mr. Peterson’s 2009 assignment of struggling

accounts, which Mr. Melin argued led directly to his decreased commission

compensation.4 The court explained, however, that Mr. Melin failed to offer proof

that (1) the accounts were particularly troublesome; or (2) even if they were, that

Mr. Peterson assigned those specific accounts because of Mr. Melin’s medical

condition.

      We agree with the district court that Mr. Melin did not provide proof to

support his allegation that he was assigned accounts that were problematic. While he

argued in response to summary judgment that “Peterson assigned [him] several

accounts that Peterson knew were poor performers,” Aplt. App., Vol. III at 536, he

did not offer evidence to support this assertion. He does not identify these “several

accounts” by name or explain how they were poor performing. He did give one

example of an account that he was assigned that was projected to bring in $500,000
4
       Mr. Melin contends that the district court erred in reaching this conclusion,
arguing that the district court did not consider all of his allegations regarding
Verizon’s discriminatory actions. As the district court noted in its decision,
Mr. Melin’s brief in opposition to summary judgment was “incredibly confusing, as
Plaintiff constantly shift[ed] back and forth between alleged acts of discrimination
and alleged acts of retaliation, often conflating the timeline of events.” Aplt. App.,
Vol. V at 1030 n.49. We agree with the district court’s characterization of
Mr. Melin’s brief in response to summary judgment and with its conclusion regarding
the alleged adverse action.


                                         -8-
in revenue even though it had disconnected services with Verizon. But he does not

show how the assignment of that account led to his decreased commission

compensation for 2009. Even if we consider the assignment of this one poor

performing account as an adverse employment action, however, we agree with the

district court that there is no evidence that Mr. Peterson assigned that account to

Mr. Melin because of his medical condition.

      A plaintiff is required “to present some affirmative evidence that disability

was a determining factor in the employer’s decision.” Morgan v. Hilti, Inc., 108 F.3d

1319, 1323-24 (10th Cir. 1997). Mr. Melin failed to demonstrate that there was a

nexus between Mr. Peterson’s alleged assignment of poor performing accounts and

his medical condition. In his response to summary judgment, Mr. Melin argued that

the evidence supported a finding that he suffered an adverse employment action

because he was regarded as disabled. In support, he explained that: “The evidence

noted above – Peterson’s offensive, derogatory and disgusting statements about

plaintiff ‘shitting himself’ because of his ulcerative colitis, the employer-

substantiated animosity of Peterson to Melin, and the lost income—all took place in

2009.” Aplt. App., Vol. III at 539. Mr. Melin’s vague reference to the “evidence

noted above” without any specific citations to where the evidence can be found in the

record significantly hampers this court’s ability to review his argument.

      We recognize that Verizon did investigate Mr. Peterson’s conduct and it

concluded that he had engaged in unprofessional behavior, but the record does not


                                          -9-
reflect that Verizon concluded that Mr. Peterson took any adverse employment

actions against Mr. Melin because of his medical condition. As for the comments

that Mr. Peterson allegedly made to other Verizon employees about Mr. Melin

“shitting himself,” while we agree that those comments were offensive and

derogatory, Mr. Melin has not shown a nexus between those stray remarks and any

adverse employment action. See Cone v. Longmont United Hospital Ass’n, 14 F.3d

526, 531 (10th Cir. 1994) (“Isolated comments, unrelated to the challenged action,

are insufficient to show discriminatory animus in [employment] decisions. . . . [The

plaintiff] must demonstrate a nexus exists between these allegedly discriminatory

statements and the [adverse employment action].”). Mr. Melin has not demonstrated

that the district court committed reversible error in determining that there were no

genuine issues of material fact in dispute with regard to whether Mr. Melin suffered

an adverse employment action because of his disability.

                                   III. Conclusion

      For the foregoing reasons, we affirm the judgment of the district court.

                                                  Entered for the Court


                                                  Stephen H. Anderson
                                                  Circuit Judge




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