                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS June 25, 2012

                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court


 SOLEDAD BALTAZAR,

              Plaintiff - Appellant,
                                                         No. 11-1343
 v.                                         (D.C. No. 1:10-CV-00308-WYD-CBS)
                                                         D. Colorado
 ERIC K. SHINSEKI, Secretary,
 United States Department of Veterans
 Affairs,

              Defendant - Appellee.


                           ORDER AND JUDGMENT *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.



I.    Introduction

      Plaintiff-Appellant Soledad Baltazar was terminated from her temporary

appointment as a registered nurse with the Department of Veterans Affairs

(“VA”). She thereafter filed a complaint against Defendant in his official

capacity, alleging violations of the Rehabilitation Act of 1973 and Title VII of the

Civil Rights Act of 1964. The United States District Court for the District of

      *
        This order and judgment is not binding precedent except under the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.
Colorado granted summary judgment in favor of Defendant, concluding, inter

alia, that Baltazar failed to produce sufficient evidence from which a reasonable

jury could conclude she was substantially limited in a major life activity or that

her termination was motivated by unlawful discrimination. Baltazar challenges

the grant of summary judgment, arguing the district court erroneously weighed

the evidence presented by the parties. Exercising jurisdiction pursuant to 28

U.S.C. § 1291, we affirm.

II.   Background

      In 2003, Baltazar obtained a temporary appointment with the VA as a

registered nurse. Baltazar’s temporary appointment was extended each year until

her termination in 2008. At the time she was hired, she did not qualify for a

permanent position because she was not a United States citizen.

      Baltazar first worked as a staff nurse at the Eastern Colorado Health Care

System facility (“ECHCS”) in Denver. While in that position, she suffered both

wrist and back injuries which required her to be temporarily placed in light duty

assignments because of lifting restrictions. After a fourth injury in early 2007,

Baltazar was eventually moved from direct patient care to a position as a charge

nurse. Alesia Coe, the Associate Director of Nursing Services, was Baltazar’s

second line supervisor and Johnna Greeley was her direct supervisor.

      Shortly after she started in the charge nurse position, Baltazar told Greeley

she was unhappy because the staff was not listening to her. Greeley testified she

                                         -2-
received feedback from nurses, nursing supervisors, and Baltazar herself that

Baltazar was “overwhelmed” in the charge nurse position. Coe testified she and

Greeley discussed concerns about Baltazar’s effectiveness in the position,

including issues with her critical thinking and decision making. Coe also

discussed Baltazar’s performance as a charge nurse with Melody Ramos, one of

the evening supervisors. Ramos told Coe there were problems with Baltazar’s

critical thinking and leadership skills and she was unable to “convey to the staff

what needed to be accomplished on her shift.” Another nursing supervisor,

Patricia Barrow, told Coe she spent a “considerable amount” of time helping

Baltazar “make basic decisions” and “refereeing disputes” between Baltazar and

the staff.

       Less than a month after being assigned to the charge nurse position,

Baltazar asked for a different assignment. Coe identified a position at an

outpatient clinic in Lakewood, Colorado (the “Lakewood Clinic”) that would

accommodate Baltazar’s light duty restrictions. Baltazar did not refuse the

assignment but requested reassignment to a different facility for personal reasons,

including the expense of the twenty-five mile commute and coordination of child-

care. Coe testified there were no other open positions that met Baltazar’s lifting

restrictions at the time she was assigned to the Lakewood Clinic.

       Baltazar worked at the Lakewood Clinic from January 31, 2008, to March

10, 2008. Based on her requests, she was reassigned to an outpatient clinic in

                                         -3-
Aurora, Colorado (the “Aurora Clinic”) in March 2008. During Baltazar’s

orientation, the charge nurse at the Aurora Clinic, Martha Weeks, reported

concerns about her performance to the nurse manager of the ambulatory clinics,

Valerie Owens. Specifically, Weeks told Owens that Baltazar was not properly

triaging patient calls and had once released a walk-in patient before a provider

was able to review the patient’s EKG. Owens reported the concerns to her

supervisor, Eric Rogers, who testified he became concerned about patient safety.

He instructed Owens to pass the information along to Coe, who was still

Baltazar’s permanent supervisor. After learning of Baltazar’s performance

problems at the Aurora Clinic, Coe terminated her temporary appointment. Coe

testified the decision to terminate Baltazar was based on feedback she received

from Owens, Ramos, Barrows, Weeks, and Greeley about Baltazar’s performance

at the two outpatient clinics and as a charge nurse at ECHCS.

      After her termination, Baltazar filed an EEOC compliant alleging

discrimination based on disability, national origin, sex, race, and retaliation. This

lawsuit followed. In her federal complaint, Baltazar alleged both that she is a

qualified disabled individual due to her back and wrist injuries 1 and that

Defendant regarded her as disabled. She also alleged being subjected to disparate




      1
      Baltazar also alleged disability based on “severe depression” but has
abandoned that claim on appeal.

                                         -4-
treatment because of her race, national origin, and sex. 2 Finally, she alleged she

was terminated in retaliation for engaging in activity protected by Title VII and

the Rehabilitation Act. Defendant moved for summary judgment and the district

court granted the motion as to all of Baltazar’s claims.

III.   Discussion

       This court reviews a district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court. Jones v. Okla. City

Pub. Sch., 617 F.3d 1273, 1277 (10th Cir. 2010). We will affirm the district court

if the pleadings and admissible evidence demonstrate “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(c). In the course of our review, we “view the evidence and

draw reasonable inferences therefrom in the light most favorable to the

nonmoving party.” Proctor v. UPS, 502 F.3d 1200, 1205 (10th Cir. 2007).

       A. Rehabilitation Act Claim

       The Rehabilitation Act provides that “[n]o otherwise qualified individual

with a disability . . . shall, solely by reason of her or his disability, be excluded

from the participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal financial

assistance.” 29 U.S.C. § 794(a). A plaintiff can withstand a motion for summary


       2
       Baltazar has abandoned a hostile work environment claim that was
dismissed by the district court.

                                          -5-
judgment on a Rehabilitation Act claim if she demonstrates, inter alia, that she is

a disabled person under the Act. Wilkerson v. Shinseki, 606 F.3d 1256, 1262

(10th Cir. 2010). Baltazar has attempted to meet this burden by showing

Defendant regarded her as having a physical impairment that substantially limits

the major life activity of working. 42 U.S.C. § 12102(1)(C), (3); 29 U.S.C.

§ 794(d); McGeshick v. Principi, 357 F.3d 1146, 1150 (10th Cir. 2004). She

supports this argument with evidence Defendant knew she could not work directly

with patients because of her lifting restriction. She also paradoxically argues (1)

Defendant placed her in light duty jobs to accommodate her restrictions and (2)

refused to find her a light duty job after she received negative evaluations at the

Aurora Clinic. None of this evidence supports Baltazar’s burden of showing

Defendant regarded her as having an impairment that substantially limited the

major life activity of working. 3 “Where the recognition of [a plaintiff’s]

limitations is not an erroneous perception, but is instead a recognition of fact, a

finding that [the plaintiff] was regarded as disabled is inappropriate.” Lusk v.

Ryder Integrated Logistics, 238 F.3d 1237, 1241-42 (10th Cir. 2001) (addressing



      3
        Citing to a portion of Valerie Owens’s deposition testimony, Baltazar
asserts Owens testified she was a “problem at the Aurora Clinic because she could
not sit continuously.” The portion of the record referenced in Baltazar’s brief
does not support this contention. Furthermore, this court has reviewed all
portions of Owens’s deposition included in the record. That review reveals no
such testimony on the part of Owens. Counsel is reminded of her duty to act with
candor toward the court.

                                         -6-
claims under the Americans With Disabilities Act); see also Detterline v. Salazar,

320 F. App’x 853, 858 (10th Cir. 2009) (unpublished disposition) (“The fact that

an employer recognizes an employee’s physical restrictions and places him in a

position allowing him to work within those restrictions does not, by itself, show

that the employer regarded him as disabled.”). Baltazar’s evidence does nothing

more than confirm Coe correctly recognized she had lifting and sitting

restrictions. Because there is no evidence Coe misperceived Baltazar’s physical

limitations, we have no hesitation concluding Baltazar failed to meet her burden

of showing she is a disabled person under the Rehabilitation Act. See Lusk, 238

F.3d at 1242. The district court properly granted summary judgment in favor of

Defendant on this claim.

      B. Retaliation Claim

      Baltazar next argues she was terminated in retaliation for filing prior EEO

complaints. Because she relies on indirect evidence to support this claim, she

must first establish a prima face case of retaliation by showing (1) she engaged in

protected opposition to discrimination; (2) she suffered an adverse employment

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

adverse employment action. O’Neal v. Ferguson Constr. Co., 237 F.3d 1248,

1252 (10th Cir. 2001). Defendant argues Baltazar has failed to show she engaged

in protected opposition to discrimination. The parties dispute whether Baltazar

filed a complaint of discrimination with the EEOC on January 30, 2008, and

                                         -7-
Baltazar argues there is a genuine dispute of fact on this point precluding

summary judgment in favor of Defendant. It is unnecessary to set out the parties’

competing arguments because we conclude, as did the district court, that even

assuming Baltazar engaged in protected activity, her claim fails because she

cannot show a causal connection between that activity and her termination.

      An employee cannot establish a causal connection between the protected

opposition and the adverse employment action unless she can show her superior

knew she engaged in such protected opposition. Petersen v. Utah Dep’t of Corr.,

301 F.3d 1182, 1188-89 (10th Cir. 2002) (“An employer’s action against an

employee cannot be because of that employee’s protected opposition unless the

employer knows the employee has engaged in protected opposition.”). Coe

testified she was not aware of any prior EEOC complaints filed by Baltazar.

Baltazar attempts to create a genuine issue of material fact over this issue,

arguing she was told by the EEOC manager that she had discussed the January

30th complaint with Coe. The district court was correct to conclude these alleged

statements are inadmissible hearsay and, thus, cannot be used to support

Baltazar’s burden of demonstrating Coe was aware of her alleged EEOC

complaint. Because Baltazar points to no admissible evidence that supports her

prima facie burden, the district court properly granted summary judgment to

Defendant on this claim.




                                         -8-
      C. Title VII National Origin Claim

      Title VII of the Civil Rights Act of 1964 makes it “an unlawful

employment practice for an employer . . . to discriminate against any individual

with respect to [her] compensation, terms, conditions, or privileges of

employment, because of such individual’s race, color, religion, sex, or national

origin.” 42 U.S.C. § 2000e-2(a)(1). Baltazar’s appellate arguments are confined

to allegations she was terminated because of her national origin (Filipino).4 To

survive a motion for summary judgment, a terminated plaintiff relying on indirect

evidence of national origin discrimination must first establish a prima facie case

by showing (1) she belongs to a protected class, (2) she was qualified to perform

her job, (3) she was terminated, and (4) the circumstances surrounding her

termination give rise to an inference of discrimination. Plotke v. White, 405 F.3d

1092, 1099-1101 (10th Cir. 2005). Once the plaintiff meets this burden, the

employer must articulate a legitimate, nondiscriminatory reason for the

termination. Mickelson v. N.Y. Life Ins. Co., 460 F.3d 1304, 1311 (10th Cir.



      4
       Baltazar’s complaint contained allegations she was terminated because of
her race (Asian) and her sex (female), but her opening appellate brief contains no
arguments related to these claims. Her claim she was terminated solely because
she spoke with an accent is not cognizable under Title VII. 29 C.F.R. § 1606.1.
Evidence she spoke with an accent, however, may be relevant to her burden of
proving she was terminated because of her national origin. See Zokari v. Gates,
561 F.3d 1076, 1090 (10th Cir. 2009) (“[C]omments regarding a plaintiff’s accent
may constitute circumstantial evidence of discrimination based on national
origin.”).

                                        -9-
2006). The burden then shifts back to the plaintiff to show “there is a genuine

issue of material fact as to whether the proffered reasons are pretextual.” Id.

(quotation omitted).

      Defendant has conceded that Baltazar met the first three elements of her

prima facie burden. As to the fourth element, the district court concluded

Baltazar had presented no evidence of circumstances giving rise to an inference of

unlawful discrimination and, thus, failed to meet her prima facie burden. This

court has previously noted that the fourth element of the prima facie burden

applicable in cases like this involves an inquiry similar to the one surrounding a

plaintiff’s burden of demonstrating pretext. Sorbo v. UPS, 432 F.3d 1169, 1173

n.5 (10th Cir. 2005). It is unnecessary to resolve whether the district court should

have analyzed Baltazar’s evidence by reference to the prima facie case or the

pretext inquiry because her “evidence of discrimination/pretext fails as a matter

of law.” Id. at 1174.

      Defendant states Baltazar was terminated from her temporary assignment

because of “a continued pattern of performance deficiencies.” A plaintiff can

attack an employer’s articulated reason for the termination by revealing “such

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in

the employer’s proffered legitimate reasons for its action that a reasonable

factfinder could rationally find them unworthy of credence.” Morgan v. Hilti,

Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (quotations omitted). Baltazar argues

                                        -10-
she has presented sufficient evidence to create a triable issue as to whether

Defendant’s proffered reason is pretextual. She relies heavily on a written

performance evaluation by Martha Weeks that states she needed “improvement

with oral skills secondary to language and accent to assure understanding by

others.” Baltazar argues this statement referencing her accent is evidence she was

terminated because of her national origin and not because of her deficient

performance. Her argument falls short for several reasons.

      First, Baltazar does not argue the comment was made in a derogatory

manner and does not challenge Defendant’s assertion that a nurse must be able to

effectively communicate with patients and staff. See Carino v. Univ. of Okla. Bd.

of Regents, 750 F.2d 815 (10th Cir. 1984) (implying an employer may consider an

employee’s foreign accent if it interferes with the employee’s ability to perform

her job); see also Ang v. Proctor & Gamble Co., 932 F.2d 540, 549 (6th Cir.

1991) (“Unlawful discrimination does not occur . . . when a plaintiff’s accent

affects his ability to perform the job effectively.”). Baltazar’s own expert

testified she is “somewhat hard to understand” and has difficulty “expressing

herself in English.” More importantly, however, Baltazar has presented no

evidence that Weeks, who made the statement, was involved in the decision to

terminate her. See Plotke, 405 F.3d at 1101 (holding “actions or remarks made by

decisionmakers” that reflect a discriminatory animus may give rise to an inference

of unlawful discrimination (quotation omitted)); id. at 1107 (emphasizing that

                                        -11-
remarks made by the decisonmaker could support an inference of unlawful

discrimination). To the extent Baltazar argues Coe’s decision was influenced by

the alleged bias of Weeks, the record contains no evidence from which a fact-

finder could conclude that Weeks intended her statement about Baltazar’s accent

to result in Baltazar’s termination. Staub v. Proctor Hosp., 131 S. Ct. 1186, 1194

(2011) (“[I]f a supervisor performs an act motivated by [discriminatory] animus

that is intended by the supervisor to cause an adverse employment action, and if

that act is the proximate cause of the ultimate employment action, then the

employer is liable . . . .”). To the contrary, Baltazar admits that no supervisor

who evaluated her performance, including Weeks, Barrow, Owens, Greeley, and

Ramos, recommended she should be terminated.

      Baltazar offers an assortment of other arguments Defendant’s proffered

explanation for her termination is weak or implausible, including assertions that

negative evaluations of her performance were overstated or unfair. She has

failed, however, to support these assertions with any record evidence and has

wholly failed to show that Coe knew reports of her deficient performance were

fabricated or inaccurate. See Watts v. City of Norman, 270 F.3d 1288, 1295 (10th

Cir. 2001) (“In determining whether the proffered reason for a decision was

pretextual, [courts] examine the facts as they appear to the person making the

decision.” (quotations omitted)). Baltazar additionally argues she was terminated

shortly before she became a United States citizen because Defendant did not want

                                         -12-
her to gain status as a permanent employee. The only evidence in the record

contradicts, not supports, her self-serving and conclusory assertion that she would

automatically become a permanent employee when she became a citizen. Thus,

the timing of Baltazar’s termination does not support her burden of showing

pretext.

      In short, the lack of record evidence supporting Baltazar’s arguments

means she has fallen far short of demonstrating “such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its action that a reasonable factfinder

could rationally find them unworthy of credence.” Morgan, 108 F.3d at 1323

(quotation omitted). The district court properly granted summary judgment to

Defendant on Baltazar’s Title VII national origin discrimination claim.

IV.   Conclusion

      The judgment of the United States District Court for the District of

Colorado is affirmed.

                                           ENTERED FOR THE COURT


                                           Michael R. Murphy
                                           Circuit Judge




                                        -13-
