Musungayi v. Whirlpool Corporation
U N I T E D STATES COURT OF APPEALS F O R THE TENTH CIRCUIT
U n i t e d States Court of Appeals T e n t h Circuit
N o v e m b e r 4, 2010
E l i s a b e t h A. Shumaker C l e r k of Court
K A Z A D I BIG MUSUNGAYI, Plaintiff-Appellant, v. W H I R L P O O L CORPORATION, Defendant-Appellee. N o . 10-5060 ( D . C . No. 4:08-CV-00427-GKF-TLW) ( N . D . Okla.)
O R D E R AND JUDGMENT * B e f o r e TACHA, ANDERSON, and KELLY, Circuit Judges. K a z a d i Big Musungayi sued his former employer, Whirlpool Corporation, a l l e g i n g a hostile work environment under Title VII of the Civil Rights Act of 1 9 6 4 , 42 U.S.C. §§ 2000e to 2000e-17. The district court granted Whirlpool's mo t i o n for summary judgment, and exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
A f t e r examining the briefs and appellate record, this panel has determined u n a n i mo u s l y that oral argument would not materially assist the determination of t h i s appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t h e r e f o r e ordered submitted without oral argument. This order and judgment is n o t binding precedent, except under the doctrines of law of the case, res judicata, a n d collateral estoppel. It may be cited, however, for its persuasive value c o n s i s t e n t with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I M r . Musungayi is an African-American native of the Democratic Republic o f the Congo. He was hired by Whirlpool in July 2005 and soon complained of c o w o r k e r s exhibiting "hostile behaviors" toward him. R. Vol. 1 at 82. Whirlpool r e a s s i g n e d Mr. Musungayi to a job operating a 600-ton press, which satisfied him f o r a while, but ten months later he sent a letter to a member of Congress c o mp l a i n i n g of "systematic silent oppression." Id. at 192. According to M r . Musungayi, coworkers ignored him, took long breaks, and "us[ed] electronics d e v i c e s to communicate with outside people." Id. Whirlpool investigated the l e t t e r and learned from Mr. Musungayi that his job-partner, Don Kinsey, preferred t r a i n i n g Caucasians. Whirlpool could not substantiate the claim, however, and f i n d i n g no other evidence of discrimination or harassment, took no further action. A year later, though, Mr. Musungayi filed a charge of discrimination with t h e Equal Employment Opportunity Commission (EEOC). He alleged a hostile w o r k environment created in part by a coworker named Keenan Berry, who was " w a g i n g a psychological warfare." Id. at 193. Mr. Musungayi noted that his past c o mp l a i n t s to Whirlpool did not deter Berry from harassing him, and he thus s u s p e c t e d a "White supremacist agenda." Id. Mr. Musungayi told Donna Griffin, W h i r l p o o l ' s employee relations manager, that Berry "interrupt[ed] employees w o r k i n g with [him] on the 600 ton press in an effort to `intoxicate' others against h i m. " Id. at 155. Griffin interviewed several other employees and supervisors
b u t again found no evidence of discrimination or harassment. Consequently, W h i r l p o o l took no further action on these allegations either. I n February 2008, Mr. Musungayi pursued his discrimination charge in the U n i t e d States District Court for the Eastern District of Michigan. He alleged an e q u a l protection violation, negligence, and "endangerment to the human factor." Id. at 13. More specifically, he averred that Whirlpool failed to protect him from h a r a s s i n g coworkers, failed to resolve the "crisis," overworked him, underpaid h i m, and "tarnished [his] reputation." Id. For all this, Mr. Musungayi sought mo n e y damages totaling $250,000.00. The Michigan court eventually transferred t h e case to the Northern District of Oklahoma, which dismissed all but the T i t l e VII claim. In the meantime, Mr. Musungayi lodged ten more grievances with W h i r l p o o l , complaining that coworkers were making rowing gestures, causing h i m to feel unsafe by spying on him, asking if the Congo was "Dark Africa," and g i v i n g him "insolent gazes." Id. at 155-57. In addition to other complaints, M r . Musungayi also felt "emotionally hurt" when a coworker slammed a tote bag a n d told him to fill it, id. at 117, and he reported that an employee asked why he h a d been assigned "such a dumb job," id. at 200. Whirlpool investigated each i n c i d e n t but found no discrimination or harassment. The company disciplined M r . Musungayi, however, for later confronting and intimidating the employee w h o allegedly asked why he had been given a dumb job.
I n September 2009, Mr. Musungayi was fired for insubordination. On D e c e mb e r 9, 2009, he responded with a second charge of discrimination, alleging r e t a l i a t o r y dismissal for filing this lawsuit. After receiving his right-to-sue letter, M r . Musungayi moved to consolidate his retaliation claim with his pending h o s t i l e - w o r k - e n v i r o n me n t claim. The district court denied the motion, however, c o n s t r u i n g it as an untimely and improper motion to amend the complaint. The c o u r t then granted Whirlpool's pending motion for summary judgment because t h e r e was no evidence of discrimination or harassment on the basis of race or n a t i o n a l origin. Mr. Musungayi now appeals the court's grant of summary judgment. II W e review the grant of summary judgment de novo, applying the same l e g a l standard as the district court. Jones v. Okla. City Pub. Sch., 617 F.3d 1273, 1 2 7 7 (10th Cir. 2010). "Summary judgment is proper only if `there is no genuine i s s u e as to any material fact' and `the movant is entitled to judgment as a matter o f law.'" Id. (quoting Fed. R. Civ. P. 56(c)). In conducting our review, we c o n s t r u e the evidence and the reasonable inferences from it in the light most f a v o r a b l e to the non-moving party, in this case, Mr. Musungayi. See id. T o survive summary judgment on a hostile-work-environment claim, "a p l a i n t i f f must show that a rational jury could find that the workplace is permeated w i t h discriminatory intimidation, ridicule, and insult, that is sufficiently severe or
p e r v a s i v e to alter the conditions of . . . employment and create an abusive w o r k i n g environment." Sandoval v. City of Boulder, Colo., 388 F.3d 1312, 1327 ( 1 0 t h Cir. 2004) (quotation omitted). A plaintiff must also submit evidence a l l o w i n g a jury to infer that he was harassed due to his race or national origin. Id. T h e district court found that Mr. Musungayi failed to demonstrate either t h a t any alleged harassment was sufficiently severe, pervasive, or objectively o f f e n s i v e as to create an abusive working environment, or that he was harassed b e c a u s e of his race or national origin. We agree with this assessment. There was n o evidence to sustain Mr. Musungayi's belief that the difficulties he experienced a t Whirlpool resulted from a discriminatory animus based on race or national o r i g i n . Instead, the record indicates that Mr. Musungayi's allegations were p r e mi s e d almost exclusively on his subjectively held beliefs and assumptions. F o r instance, Mr. Musungayi told a coworker he was from the Congo and w a s asked, "Is that what they call dark Africa?" R. Vol. 1 at 96. Mr. Musungayi t o o k offense and walked away. But another coworker later told Mr. Musungayi, " I f you knew the history of this country, you would understand that that part of t h e world was called dark Africa." Id. at 122. Given this context, there was n o t h i n g severely offensive or inherently discriminatory about the question, and w e can infer nothing discriminatory from the reference. M r . Musungayi also alleged that Kinsey preferred to train Caucasians over A f r i c a n - A me r i c a n s . He explained that Kinsey was once involved in an altercation
w i t h another employee and afterwards said, "Well, it's just a cultural issue and I k n o w at my church in the past, they used to not accept black people." Id. at 96. On another occasion Mr. Musungayi heard Kinsey say he taught Sunday school s t u d e n t s "that before loving those outside of you, you get to love first those a r o u n d you here." Id. at 99. Based on these two statements, Mr. Musungayi a s s e r t s that Kinsey fosters a racial bias. But these statements could not support a f a c t u a l finding that Whirlpool's work environment was so permeated with d i s c r i mi n a t o r y intimidation, ridicule, and insult as to render it abusive, and they d o not demonstrate that Kinsey held a discriminatory intent. Moreover, these c o mme n t s were not directed at Mr. Musungayi and did not disadvantage him. To the contrary, Mr. Musungayi acknowledged that Kinsey trained him, and, in f a c t , he actually wrote a letter to Whirlpool's management, praising Kinsey for t r a i n i n g him. Perhaps Mr. Musungayi found Kinsey's remarks offensive, but " T i t l e VII . . . does not set forth a general civility code." Burlington N. & Santa F e Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quotation omitted). N o r did Berry's conduct constitute actionable harassment. See Chavez v. N e w Mexico, 397 F.3d 826, 832 (10th Cir. 2005) (harassment must be racial or s t e m from racial animus). According to Mr. Musungayi, Berry's harassment c o n s i s t e d of walking around Mr. Musungayi's workspace, throwing gloves into t h e press and shutting it off, spreading rumors that Mr. Musungayi was royalty, a n d telling Kinsey that heBerrydid not trust Mr. Musungayi. Berry also tried to
a v o i d working with Mr. Musungayi and even reported that Mr. Musungayi was h a r a s s i n g him. But none of this conduct can be attributed to a discriminatory a n i mu s . See Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994) ("General h a r a s s me n t if not racial or sexual is not actionable."). And apart from this alleged c o n d u c t , Mr. Musungayi conceded that he never heard Berry make any derogatory r e ma r k s about anyone's race or national origin. See R. Vol. 1 at 104. We could continue to discuss Mr. Musungayi's allegations, but we are s a t i s f i e d that they do not point to an actionable injury. And in any event, his a p p e l l a t e brief fails to articulate any reasoned argument, supported by pertinent l e g a l authority, suggesting that summary judgment was inappropriate. Instead, M r . Musungayi disputes the characterization of his problems as personality c o n f l i c t s and lobs new allegations impeaching the integrity of defense counsel. We recognize that Mr. Musungayi is proceeding pro se, and we afford his ma t e r i a l s a "solicitous construction" accordingly. See Van Deelen v. Johnson, 4 9 7 F.3d 1151, 1153 n.1 (10th Cir. 2007). Nevertheless, we have "repeatedly i n s i s t e d that pro se parties follow the same rules of procedure that govern other l i t i g a n t s . " Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 ( 1 0 t h Cir. 2005) (quotation omitted). This means that "[u]nder [Federal Rule of A p p e l l a t e Procedure] 28, which applies equally to pro se litigants, a brief must c o n t a i n more than a generalized assertion of error, with citations to supporting a u t h o r i t y . When a pro se litigant fails to comply with that rule, we cannot fill the
v o i d by crafting arguments and performing the necessary legal research." Id. a t 841 (ellipsis, citation, brackets and quotations omitted). A s a corollary, we cannot consider Mr. Musungayi's allegations of r e t a l i a t o r y discharge, as Mr. Musungayi failed to properly present that claim to t h e district court. See Tele-Commc'ns, Inc. v. Comm'r, 104 F.3d 1229, 1233 ( 1 0 t h Cir. 1997) ("[A]n issue must be presented to, considered and decided by the t r i a l court before it can be raised on appeal." (brackets and quotations omitted)). Mr. Musungayi attempted to add a retaliatory discharge claim to his complaint by mo v i n g to consolidate it with his hostile-work-environment claim, but the district c o u r t denied his request as untimely and improper, see Dkt. # 87 (minute order d e n y i n g motion for consolidation), and never considered his allegations, s e e R. Vol. 1 at 221 n.1. Although Mr. Musungayi criticized that ruling in his n o t i c e of appeal, see id. at 226, we doubt his comments adequately preserved for a p p e a l the question of whether the court erred in denying leave to amend. Yet e v e n if he did wish to appeal the ruling, Mr. Musungayi failed to challenge it in h i s opening brief. Instead, he simply asserted in a supplemental brief that the d i s t r i c t court misconstrued the motion for consolidation as seeking to amend the c o mp l a i n t . Under these circumstances, we conclude that Mr. Musungayi failed to p r e s e r v e the issue for appeal. See Bronson v. Swensen, 500 F.3d 1099, 1104-05 ( 1 0 t h Cir. 2007) (finding forfeiture where appellant failed to adequately raise a r g u me n t in opening brief on appeal).
III T h e judgment of the district court is AFFIRMED. E n t e r e d for the Court
P a u l J. Kelly, Jr. C i r c u i t Judge
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