978 F.

2d 1267
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.

Irene PACHECO, Plaintiff-Appellant,

v.
STATE OF KANSAS DEPARTMENT OF SOCIAL
REHABILITATION
SERVICES; Peggy Wolfe; Carol Rittmayer,
Defendants-Appellees.
No. 92-3210.

United States Court of Appeals, Tenth Circuit.

Oct. 21, 1992.

Before JOHN P. MOORE, TACHA and BRORBY, Circuit Judges.

ORDER AND JUDGMENT*
BRORBY, Circuit Judge.

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); 10th Cir.R. 34.1.9. The cause is
therefore ordered submitted without oral argument.

Ms. Irene Pacheco Suarez (Plaintiff) appeals the trial court's grant of summary
judgment to Defendants. We affirm.

Plaintiff instituted this action pro se claiming her job "duties were taken away
and given to two part-time girls to learn, harassment, and mental anguish [and]
humiliation" because of her race (Hispanic). The trial court subsequently

appointed three successive counsel for Plaintiff and each resigned, the latter
two claiming they could not certify the complaint was well grounded in fact or
law. Plaintiff has therefore proceeded pro se.
4

Following discovery, Defendants filed a motion for summary judgment

supported by evidentiary materials showing Plaintiff was an unsatisfactory
employee who was slow to learn, needed to be told how to perform tasks
repeatedly, had very poor work performance, and had voluntarily resigned to
take a better, higher-paying job.

Plaintiff responded with a litany of complaints surrounding her employment,

such as being asked for a doctor's excuse following sick leave, unsatisfactory
work evaluations, and other unfavorable work assignments. In short, Plaintiff
responded with incidents of what she perceived to be demeaning work
experiences.

The trial court prepared and filed a thorough, eight-page Memorandum and
Order reviewing the undisputed facts concluding Plaintiff had failed to establish
a prima facie case of discrimination. Specifically, the trial court stated in part:

7
Although
plaintiff claims that she was the victim of disparate treatment because she
is Hispanic in that she was given unfavorable work assignments, given a poor
evaluation, demoted, had equipment taken from her, and made to give a doctor's
statement to support an absence, she has failed to establish that similarly situated
non-Hispanic employees were treated differently than she. Moreover, the court
concludes that even if a prima facie case can be found defendants have articulated
legitimate, nondiscriminatory reasons for their conduct, which plaintiff has failed to
show were pretexts for illegal discrimination. Accordingly, defendants are entitled to
summary judgment on plaintiff's disparate treatment claims.
8

Memorandum and Order at 6.

Plaintiff appeals this decision in a thirty-two-page pro se brief which, while

difficult to characterize accurately or summarize, maintains her employer
treated her unfairly and in a demeaning fashion. Plaintiff concludes she must
have been treated in such a fashion because she is Hispanic.

10

Discrimination can seldom be shown by direct evidence. Recognizing this fact,

the Supreme Court has allowed plaintiffs to prove discrimination by showing
that similarly situated non-Hispanics were treated differently. Plaintiff, while
maintaining she is a victim of discrimination, has failed to offer any evidence

that would show non-Hispanics, similarly situated, were treated differently.

11

We have reviewed the record on appeal and can discern no error. The judgment
of the District Court is AFFIRMED for substantially the same reason set forth
in the Memorandum and Order dated April 28, 1992, a copy of which is
attached.

ATTACHMENT
12 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
IN
KANSAS
Irene Pacheco, Plaintiff,
13
vs.
14
State of Kansas Social Rehabilitation Services, Carol
15
Rittmayer, and Peggy Wolfe, Defendants.
16
Civil Action No. 90-2283-V
April 28, 1992.
17
MEMORANDUM AND ORDER
18

This case is before the court on the motion (Doc. 52) of defendants State of
Kansas Social Rehabilitation Services (SRS), Carol Rittmayer, and Peggy
Wolfe for summary judgment pursuant to Fed.R.Civ.P. 56(b). Plaintiff Irene
Pacheco, proceeding pro se, opposes (Doc. 54) the motion. For the reasons
stated below, the motion is granted.

19

In this employment discrimination action, plaintiff claims that she was

discriminated against in the terms, conditions, and privileges of her
employment, harassed, and constructively discharged because of her national
origin (Hispanic) in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. 2000e et seq. In their motion for summary judgment, defendants
contend that they are entitled to judgment as a matter of law on plaintiff's
claims.

20

A moving party is entitled to summary judgment "if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

The moving party bears the initial burden of demonstrating the absence of a
genuine issue of material fact. This burden may be discharged by "showing,"
that is, pointing out to the district court, that there is an absence of evidence to
support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986). Once the moving party has properly supported its motion for
summary judgment, "a party opposing ... may not rest on mere allegations or
denials of his pleading, but must set forth specific facts showing that there is a
genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986). Thus, the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary
judgment. Id.
21

The uncontroverted facts of the case appear as follows. Plaintiff was employed
by defendant SRS from December, 1985, until July 28, 1989, as an Office
Assistant II. Plaintiff's job duties, among others, included acting as receptionist,
answering telephones, filing, typing, and preparing case files. At the time that
plaintiff left her employment, defendants Rittmayer and Wolfe were her
immediate supervisors.

22

During plaintiff's tenure with defendant SRS, it was the agency's practice to
evaluate its employees annually. For the ratings period of June 9, 1988, through
June 8, 1989, defendant Rittmayer evaluated plaintiff's performance as
"unsatisfactory." Defendant Wolfe reviewed the evaluation and approved it.
Although plaintiff had received substandard evaluations in the past, she elected
to appeal the evaluation in question on the ground that it was unjust. On July
19, 1989, a three person committee heard plaintiff's appeal. On July 27, 1989,
that committee affirmed the unsatisfactory evaluation on the basis that plaintiff
had not followed state policy governing the use of SRS computers.

23

On July 20, 1989, after her appeal was heard, but before the committee reached
its decision, plaintiff tendered her resignation to defendant SRS. In her letter of
resignation, plaintiff stated that she had accepted a position at the University of
Kansas Medical Center. Plaintiff had been hired by the Medical Center as an
Office Assistant III. The new position provided plaintiff with more
responsibility and an increase in salary. Her letter also informed defendant SRS
that her last day of work would be June 28, 1989.

24

On November 23, 1989, plaintiff filed a complaint with the Equal Employment
Opportunity Commission (EEOC) against defendants, charging that "[s]he was
harassed by management in that [she] was given difficult work assignments,
[she] was required to submit a doctor's statement after one day's absence, and

[she] received an unjust rating." Within ninety days of receiving her notice of
the right to sue from the EEOC, plaintiff instituted this action, alleging that she
was discriminated against in the terms, conditions, and privileges of
employment, harassed, and constructively discharged because she is Hispanic
in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et
seq.
25

Defendants contend that they are entitled to judgment as a matter of law on

plaintiff's discrimination claim on the ground that she cannot establish a prima
facie case of discrimination. Defendants also contend that they have articulated
legitimate, nondiscriminatory reasons for their conduct which were not pretexts
for discrimination. Defendants further contend that the uncontroverted facts
show that they are entitled to judgment as a matter of law on plaintiff's
harassment and constructive discharge claims. The court will address each of
the contentions in light of plaintiff's claims as established by the Pretrial Order.

26

Under Title VII it is an unlawful employment practice for an employer to

discriminate against any individual with respect to his or her "compensation,
terms, conditions, or privileges of employment, because of such individual's ...
national origin." 42 U.S.C. 2000e-2(a)(1). The allocation, burden, and order
of proof in disparate treatment claims under Title VII were established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and later refined in
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981):

27 the plaintiff has the burden of proving by a preponderance of the evidence a

First,
prima facie case of discrimination. Second, if the plaintiff succeeds ..., the burden
shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for
[its conduct]." Third, should the defendant carry this burden, the plaintiff must then
have an opportunity to prove by a preponderance of the evidence that the legitimate,
nondiscriminatory reasons offered by the defendant were not [its] true reasons, but
were pretexts for discrimination.
28

Id. at 242-253 (citations omitted). Despite the framework of shifting burdens,

the ultimate burden of proof resides at all times with the plaintiff. Id. at 253.

29

To establish a prima facie case of discrimination under 42 U.S.C. 2000e-2(a)

(1), plaintiff must show: (1) that she is a member of a protected class of
persons; (2) that she satisfactorily performed her job; (3) that she was
disciplined or discharged from her job despite her satisfactory performance; and
(4) that similarly situated non-Hispanics were treated differently. See
McDonnell Douglas Corp., 411 U.S. at 802; also McAlester v. United Air
Lines, Inc., 851 F.2d 1249, 1260 (10th Cir.1988).

30

Based on the record before it, the court concludes that plaintiff has failed to
establish a prima facie case of intentional discrimination on the basis of her
national origin. Although plaintiff claims that she was the victim of disparate
treatment because she is Hispanic in that she was given unfavorable work
assignments, given a poor evaluation, demoted, had equipment taken from her,
and made to give a doctor's statement to support an absence, she has failed to
establish that similarly situated non-Hispanic employees were treated
differently than she. Moreover, the court concludes that even if a prima facie
case can be found defendants have articulated legitimate, nondiscriminatory
reasons for their conduct, which plaintiff has failed to show were pretexts for
illegal discrimination. Accordingly, defendants are entitled to summary
judgment on plaintiff's disparate treatment claims.

31

Plaintiff also claims that she was the victim of harassment in the workplace
because she is Hispanic. To show that she worked in a discriminatory or hostile
environment, plaintiff must prove "more than accidental or sporadic incidents
of discrimination; she must show that the discrimination was the company's
standard operating procedure--the regular than the unusual practice." Payne v.
General Motors Corp., 731 F.Supp. 1465, 1472 (D.Kan.1990) (quoting Pitre v.
W. Elec. Co., Inc., 843 F.2d 1262, 1267 (10th Cir.1988)). There must be a
"steady barrage" of opprobrious comment or conduct aimed at plaintiff because
of her national origin. See Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257
(8th Cir.1981).

32

While plaintiff alleges that she was harassed by her supervisors because she is
Hispanic, she has proffered nothing in the record to support a finding that she
was the victim of ongoing mistreatment because of her national origin. Even if
mistreated in the ways that she alleges, plaintiff has failed to produce materials
from which a reasonable person could infer that her supervisors mistreated her
because of her national origin. Plaintiff's conclusory allegation that she was
mistreated based on her national origin is insufficient to withstand defendants'
motion for summary judgment. Accordingly, the court concludes that
defendants are entitled to summary judgment on plaintiff's claim for
harassment.

33

Plaintiff also claims that she was forced to resign her position with defendant
SRS because she is Hispanic. To prevail on this claim, plaintiff must show that
she was constructively discharged. "A finding of constructive discharge
depends upon whether a reasonable [person] would view the working
conditions as intolerable, not upon the subjective view of the employeeclaimant." Derr v. Gulf Oil Corp., 796 F.2d 340, 343 (10th Cir.1986) (quoting
Irving v. Dubuque Packing Co., 689 F.2d 170, 172 (10th Cir.1982)). The court

concludes that nothing in the record supports a finding that a reasonable person
could infer that the working environment at the SRS was intolerable to the
point that plaintiff was constructively discharged. Defendants are entitled to
summary judgment on plaintiff's claim for constructive discharge.
34

In sum, the court concludes from the record before it that plaintiff has failed to
show that a reasonable person could infer that she was the victim of disparate
treatment, harassment, or constructively discharged because of her national
origin. While plaintiff may have complaints about her treatment as an employee
of defendant SRS, absent a showing that that treatment was on account of her
national origin her complaints are not remediable under Title VII.

35

IT IS, THEREFORE, BY THE COURT ORDERED that defendants' motion for

summary judgment (Doc. 52) is granted. The case is hereby dismissed.

36

Copies of this Memorandum and Order shall be mailed to counsel of record for
the parties.

37

IT IS SO ORDERED.

----------------G.T. Van Bebber

38
----------------G.T. VAN BEBBER
39
----------------United States District Judge
40

This order and judgment has no precedential value and shall not be cited, or
used by any court within the Tenth Circuit, except for purposes of establishing
the doctrines of the law of the case, res judicata, or collateral estoppel. 10th
Cir.R. 36.3