                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            FEB 3 2005
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    ROBERT H. SPRAGUE,

                  Plaintiff-Appellant,

    v.                                                    No. 03-5019
                                                    (D.C. No. 01-CV-268-H)
    ADVENTURES, INC., an Oklahoma                         (N.D. Okla.)
    corporation doing business as Carpet
    City,

                  Defendant-Appellee.


                              ORDER AND JUDGMENT          *




Before TYMKOVICH , HOLLOWAY , and ANDERSON , 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.




*
  This order and judgment is not binding precedent, except under the doctrines of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.
      Plaintiff Robert H. Sprague appeals from a district court order granting

summary judgment in favor of defendant Adventures, Inc. on his claims of

religious discrimination, and retaliation under Title VII. Plaintiff worked as a

carpet salesman for defendant. He alleges that he was subjected to religious

harassment by a supervisor and then transferred from the store where the

supervisor worked to another location because of his conflict with the supervisor.      1



The district court rejected this discriminatory/retaliatory transfer claim because

plaintiff failed to offer evidence to rebut defendant’s explanation that he was

transferred because of poor sales performance. On de novo review,          Pastran v.

K-Mart Corp. , 210 F.3d 1201, 1204 (10 th Cir. 2000), we affirm that ruling.

      The district court rejected plaintiff’s hostile work environment claim for

two reasons, holding (a) that the alleged harassment—religious pressure imposed

by one Christian on another Christian—was not intentional discrimination because

of religion cognizable under Title VII and, (b) that, in any event, it was not severe

enough to be actionable. We need not rely on the first reason, as we agree with




1
       Plaintiff refers to his transfer as a demotion, because the second location
was allegedly a much harder place to earn sales commissions. While equating a
transfer with a demotion is oversimple, we have held that Title VII is broad
enough to reach a “decision causing a significant change in benefits.”         Stinnett v.
Safeway, Inc. , 337 F.3d 1213, 1217 (10 th Cir. 2003). Given our disposition of the
transfer claim based on another legal deficiency, we need not resolve whether the
mere change of location here satisfied the condition stated in      Stinnett .

                                           -2-
the second and it is dispositive. In sum, we affirm the entry of summary

judgment for defendant.

      As this is an appeal from the entry of summary judgment for defendant,

“we recite and consider the facts in the light most favorable to the plaintiff.”

Wright-Simmons v. City of Okla. City   , 155 F.3d 1264, 1266 (10 th Cir. 1998).

Indeed, most of the facts evidenced in our record derive from plaintiff’s own

deposition.

      Plaintiff worked for defendant briefly in 1999, but quit when promised

benefits did not materialize. None of the events he complains of here occurred

during that initial stint. He hired back on in January 2000 under the supervision

of Lee Carroll. Plaintiff lasted less than two weeks in the store where Carroll

worked, when he was transferred to the main store because of poor work

performance.

      During his time at the company’s branch store, plaintiff accused Carroll of

engaging in excessive religious proselytizing in the workplace. Though plaintiff

was raised Catholic and was attending Episcopalian services at the time, he

nevertheless became a focus of Carroll’s religious exhortation. The triggering

event appears to have been an occasion when plaintiff, whose grandmother had

been Jewish, accompanied a Jewish co-worker, Sharon Yantes, to temple services.




                                          -3-
After learning of this, Carroll repeatedly told plaintiff—in public and on the open

sales floor—that “Jesus Christ is alive; Moses is dead.”

       In general, Carroll expressed his religious views to everyone at the store.

He prayed in office meetings and his religious commentary was expressed on the

sales floor. With respect to plaintiff in particular, Carroll used requests for

training or assistance as occasions for impromptu prayer sessions. Plaintiff

complained about Carroll to management, though it is not clear from his

testimony how and when he did so.

       Within two weeks, plaintiff was transferred to another store. He was told

this was an opportunity to improve his sales performance, but he later learned that

slow business at his new location made it difficult if not impossible to earn a

living on commissions there—a fact that was common knowledge within the

company. Within a short time he left defendant’s employ, a decision he attributes

to a combination of factors, including Carroll’s religious harassment.

                          Discriminatory/Retaliatory Transfer

       Plaintiff’s claims of discrimination and/or retaliation in connection with his

transfer are subject to the burden-shifting scheme of   McDonnell Douglas Corp. v.

Green , 411 U.S. 792, 802-04 (1973).     Mattioda v. White , 323 F.3d 1288, 1291,

1293 (10 th Cir. 2003). Under this three-step scheme, the plaintiff must first

establish a prima facie case of proscribed conduct; if he does so, the burden shifts


                                            -4-
to the defendant to provide a legitimate reason for the employment action in

question; finally, if the defendant satisfies this burden, the plaintiff must

demonstrate that the legitimate reasons proffered by the defendant are merely a

pretext for the alleged improper motivation.       See id. , at 1291. These steps guide

the disposition of a Title VII claim challenged on summary judgment; the plaintiff

must demonstrate triable issues of fact to defeat the motion.      See, e.g. , Kelley v.

Goodyear Tire & Rubber Co. , 220 F.3d 1174, 1177 (10 th Cir. 2000) (following

Randle v. City of Aurora , 69 F.3d 441, 451 (10 th Cir. 1995)).

       Plaintiff cites the close temporal proximity of his conflict with Carroll and

his transfer to establish a prima facie case. The suggestive timing of events can

establish a prima facie case of discrimination or retaliation.     See, e.g. , Selenke v.

Med. Imaging of Colo. , 248 F.3d 1249, 1260 (10 th Cir. 2001) (discrimination);

Pastran , 210 F.3d at 1205 (retaliation). The district court assumed that plaintiff

had made out a prima facie case with regard to his transfer and went on to dispose

of the claim at the pretext stage, where the legal deficiency in plaintiff’s case was

readily evident. We follow the same approach.

       Defendant insists that company management transferred plaintiff to its main

store, where management was located, because of his poor sales performance.

Defendant showed, through materials plaintiff has not included in the record and

thus cannot challenge,    see generally Deines v. Vermeer Mfg. Co.      , 969 F.2d 977,


                                             -5-
979-80 (10 th Cir. 1992), that plaintiff generated a mere $66 in sales commissions

during his first two weeks.

      Plaintiff did not counter this showing with additional evidence to show that

defendant’s rationale was pretextual. His case rested on the timing of his transfer

and his belief that it reflected the improper motives he alleged, neither of which is

a sufficient basis to survive summary judgment at the pretext stage. While timing

may suffice to create a prima facie case, “when a defendant articulates a reason

for [the challenged action], establishing a prima facie case is not sufficient to

avoid summary judgment.”      Selenke , 248 F.3d at 1260. The prima facie inference

of improper motive based on timing alone does not carry forward to undermine a

legitimate rationale articulated by the defendant for the challenged action; thus,

absent additional evidence to undermine such a rationale, the defendant is entitled

to summary judgment.    Id. at 1260-61; Meiners v. Univ. of Kan. , 239 F. Supp. 2d

1175, 1195 (D. Kan. 2002) (following    Selenke ); cf. Pastran , 210 F.3d at 1206-07

(acknowledging that timing “is not sufficient by itself to raise an issue of fact” on

pretext, but holding that other probative evidence precluded summary judgment).

      As for plaintiff’s personal suspicions, mere conjecture and subjective belief

about an employer’s motives cannot defeat summary judgment.         See, e.g. ,

Aramburu v. The Boeing Co.    , 112 F.3d 1398, 1408 n.7 (10   th Cir. 1997).




                                         -6-
Therefore, we affirm the grant of summary judgment to defendant on plaintiff’s

claims relating to his inter-store transfer.

                              Hostile Work Environment

      Plaintiff’s hostile environment claim rests on the conduct of his supervisor,

Lee Carroll, summarized earlier. The district court held that this conduct could

not support a Title VII claim because (1) there was no evidence that plaintiff

suffered intentional discrimination because of religion since any harassment

directed at plaintiff was free of proscribed religious animus, and (2) the

harassment was not severe enough to give rise to an actionable hostile work

environment. We affirm on the latter rationale.

      To survive summary judgment on this claim, plaintiff had to “show that a

rationale jury could find that the workplace is permeated with discriminatory

intimidation, ridicule, and insult, that is sufficiently sever or pervasive to alter the

conditions of the victim’s employment.”        Stinnett v. Safeway, Inc. , 337 F.3d 1213,

1219 (10 th Cir. 2003) (quotation omitted). And the “objectionable environment

must be both objectively and subjectively offensive, one that a reasonable person

would find hostile or abusive, and one that the victim in fact did perceive to be

so.” Id. (quotation omitted). According to plaintiff’s deposition testimony, he

experienced the objectionable religious-based comments only          after the first week

of a two-week stint under Carroll’s supervision, and it is not clear whether he


                                           -7-
even complained to management about the religiously-oriented speech until some

time after his transfer. We cannot conclude that the district court erred in finding

that Carroll’s statements did not create an objectively or subjectively hostile

environment after only one week’s time, especially where plaintiff has not shown

that he was upset enough to promptly complain to management and where his

transfer was, as we have already seen, not pretextual.

      For the foregoing reasons, the judgment of the district court is AFFIRMED.



                                                     Entered for the Court
                                                     Per Curiam




                                         -8-
03-5019, Sprague v. Adventures, Inc.
TYMKOVICH , J., concurring.

      There is another, fundamental concern implicated here that has not been

addressed in our cases. Title VII hostile workplace cases raise troublesome

questions of how and when employee speech may be regulated. Concerns about

free expression are especially pronounced in cases like this one where the

allegations of hostility are apparently based on an employee’s affirmations of

faith and belief to another employee. The problem arises when the listener is

“offended” by the speech because it is “unwanted” or “uncomfortable.” The

offensiveness of the speech is surely rooted in the message being conveyed. The

message then becomes the basis of a hostile workplace. While Title VII rightly

condemns acts of religious discrimination in the workplace, the line between

permissible religious commentary in the workplace and a religiously hostile

workplace quickly becomes fuzzy. That is especially true where, as here, there is

no record evidence that the plaintiff was terminated “because of [his] religion.”

42 U.S.C. § 2000e-2(a).

      We have previously held that the First Amendment generally does not

preclude a hostile work environment claim “in the context of a sexual harassment

action.” Baty v. Willamette Indus., Inc., 172 F.3d 1232, 1247 (10th Cir. 1999).

We have not had the occasion, however, to discuss the contours of the

application of the doctrine to specific cases of religious speech by employees in
the workplace, especially where the complainant attempts to hold the employer

vicariously liable for religious-oriented speech by its employees.

      There is a growing body of commentary regarding these difficult issues.

See, e.g., Eugene Volokh, What Speech Does “Hostile Work Environment”

Harassment Law Restrict?, 85 Geo. L.J. 627 (1997), available in substantially

updated form at http:// www.law.ucla.edu/faculty/volokh/harass/breadth.htm;

Kingsley R. Browne, Zero Tolerance for the First Amendment: Title VII’s

Regulation of Employee Speech, 27 Ohio N.U. L. Rev. 563 (2001); Kimball E.

Gilmer & Jeffrey M. Anderson, Zero Tolerance for God?: Religious Expression

in the Workplace After Ellerth and Faragher, 42 How. L.J. 327, 344-45 (1999);

see also Saxe v. State College Area Sch. Dist., 240 F.3d 200, 210 (3d Cir. 2001)

(examining anti-harassment policies); but see Robinson v. Jacksonville, 760 F.

Supp. 1486, 1534-37 (N.D. Fla. 1991) (listing six grounds for upholding hostile

work environment claim against First Amendment challenge). Had plaintiff

succeeded here in overturning summary judgment on the existing record, these

issues could well have taken center stage as the facts became more developed on

remand.




                                        -2-
03-5019, Sprague v. Adventures, Inc.
HOLLOWAY , J., concurring in part and dissenting in part.


       I concur in the majority’s disposition of the discriminatory/retaliatory

transfer claim. But I respectfully dissent from the majority’s disposition of the

hostile work environment claim.

       As a threshold matter, the district court rejected the idea that any “comment

or proselytizing on behalf of Plaintiff’s Christian supervisor [could have] caused

[plaintiff], who is also a Christian, to suffer any intentional discrimination

because of religion.”   1
                            Aplt. App. at 174. The majority opinion did not have to

address this categorical dismissal of Christian-on-Christian religious harassment,

as it affirms the rejection of plaintiff’s hostile work environment claim for lack of

the requisite severe/pervasive hostility. Given my disagreement with the majority

on the latter point, it is incumbent upon me to explain briefly why I would not

concur in the result on the basis of the former rationale alternatively relied upon

by the district court, i.e., why I conclude a supervisor’s religious hostility that is

otherwise actionable does not cease to be so merely because a subordinate shares

the same, broadly denominated, religious identity.



1
       The district court denied summary judgment to defendant on a consolidated
claim of religious hostility asserted by Sharon Yantes, despite a very similar
evidentiary record. At the summary judgment hearing, the court indicated that
given the distinctly Christian prejudices expressed by Carroll, it viewed the fact
that plaintiff was also Christian while Yantes was Jewish “a glaring distinction in
the facts as they exist between [plaintiff] and Ms. Yantes.” Aplt. App. at 215.
       The Sixth Circuit recognized some time ago that if a Christian employer’s

favorable treatment of a Christian employee depends on the nature or extent of the

employee’s perceived commitment to the employer’s religious views or standards,

an actionable religious animus exists.     See Blalock v. Metal Trades, Inc. , 775 F.2d

703, 704-05, 708 (6 th Cir. 1985). In much broader but equally pertinent terms,

this court has held that Title VII generally protects against “requirements of

religious conformity,” which includes “‘all aspects of religious observance and

practice, as well as belief.’”   Shapolia v. Los Alamos Nat’l Lab.    , 992 F.2d 1033,

1036 (10 th Cir. 1993) (quoting 42 U.S.C. § 2000e(j)). Here, Carroll’s efforts to

impose on his subordinates a workplace conforming to his particular notions of

Christian observance and belief fall within the compass of the statute, regardless

of any commonality in their religious faith.

       I turn now to the severity of the hostility directed at plaintiff, which is the

focus of my dissent from the majority’s disposition. As the majority notes, the

question is whether “a rational jury could find that the workplace is 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.”       Davis v. United States Postal Serv.   , 142 F.3d 1334, 1341

(10 th Cir. 1998) (quotations omitted). We must look to “all the circumstances

involved in the situation,” including “the frequency of the discriminatory conduct;


                                            -2-
its severity; whether it [was] physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interfere[d] with [plaintiff’s]

work performance,” and assess whether “the environment would be reasonably

perceived (objectively) and [was] perceived (subjectively), as hostile or abusive.”

Nieto v. Kapoor , 268 F.3d 1208, 1218, 1220 (10 th Cir. 2001) (quotation omitted).

       Regarding frequency, plaintiff testified that Carroll subjected him (and his

co-workers, with customers observing)      2
                                               to an incessant barrage of religious

peroration and intimidation, including hourly harassment on the sales floor and

involuntary prayer meetings in his office. Aplt. App. 83-86, 88. As for severity,

I cannot discount as a minor workplace irritant the constant religious bullying and

threats of damnation cited by plaintiff, particularly as Carroll claimed to have the

power to deprive him of his job,     see id. at 84 (depo. at 37). The offensiveness, if

not humiliation, involved was heightened by the fact that these were not just

private exchanges but often quite public statements. And plaintiff testified this

conduct directly interfered with his job in at least two different ways: Carroll’s

intemperate religious comments on the sales floor drove customers away,          see id.

at 83 (depo. at 36), 86 (depo. at 45), and Carroll stopped training and assisting

him once their religious conflict arose,   see id. at 88 (depo. at 53). In connection


2
       “A finding of pervasiveness or severity need not rest solely on actions
aimed directly at a plaintiff, however, but may also consider harassment of others
in the workplace.” Nieto , 268 F.3d at 1219 n.7.

                                               -3-
with these last allegations, I note that defendant’s stated reason for plaintiff’s

inter-store transfer – his very poor sales performance at the store where Carroll

worked – while a legitimate justification undercutting plaintiff’s challenge to his

transfer, is entirely consistent with his hostile work environment claim.

      The points made above regarding frequency, severity, offensiveness, and

interference with performance indicate to me that plaintiff’s work environment

could reasonably be perceived as hostile or abusive by anyone whose religious

views or deportment elicited Carroll’s denunciation or intrusive proselytizing.

And plaintiff certainly indicated that he perceived the environment in that way.

See also id. at 91-93.

      On the record developed thus far, which concededly may be skewed by the

prominence of plaintiff’s testimony, I cannot say that defendant has negated the

existence of a triable case on the factors that control the disposition of plaintiff’s

hostile environment claim. I would therefore reverse the entry of summary

judgment for the defendant on this one particular aspect of the case and remand

for further proceedings.




                                          -4-
