## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 11 2005 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DIANE D. DICK,

Plaintiff - Appellant,

v. PHONE DIRECTORIES COMPANY, INC., Defendant - Appellee. No. 03-4163

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH (D. Ct. No. 2-01-CV-785-TC)

Mark C. McLachlan (Kenneth B. Grimes, with him on t he briefs), Mark C. McLachlan & Assoc., LC, Salt Lake City, Utah, appea ring for Plaintiff-Appellant. Matthew M. Durham (Justin B. Palmer, with him on th e brief), Stoel Rives LLP, Salt Lake City, Utah, appearing for Defendant-Appel lee.

Before TACHA , Chief Circuit Judge, BALDOCK , and HENRY , Circuit Judges.

TACHA , Chief Circuit Judge.

Plaintiff-Appellant Diane D. Dick sued her employer , Defendant-Appellee Phone Directories Company, Inc. (“PDC”), alleging h ostile work environment-2-

same-sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964. The District Court granted summary judgment in favor of PDC on all claims, reasoning that Ms. Dick was not discriminat ed against “because of sex” and that she had not suffered an adverse employmentaction. On appeal, Ms. Dick argues that there is a genuine issue of material fa ct regarding whether she was harassed because of her sex and whether the actions of her supervisor and her coworkers constitutes an adverse employment action. We take jurisdiction under 28 U.S.C. § 1291, AFFIRM in part, and REVERSE in pa rt. I. BACKGROUND In 1997, Ms. Dick began working as one of approximately eight sales representatives in PDC’s Vernal, Utah office. She quickly became a top representative in Utah, earning various awards and trips for her sales. Sometime in 2000, Ms. Dick’s direct supervisor was fired. S ubsequently, Ms. Dick began to use her former supervisor’s office, which apparentl y angered at least one coworker. In September 2000, PDC hired Laura Bills as the Vernal office manager and Ms. Dick’s immediate supervisor. Ms. D ick alleges that Ms. Bills and her coworkers began to sexually harass her the following month, and that the conduct lasted until about May 2001. Nonetheless, Ms. Dick continued to be a successful sales representative and, at the time of this appeal, was still employed at PDC’s Vernal office.1 We note that, at times, the allegations in sexual h arassment claims are

better summarized for the sake of brevity and digni ty. See Oncale v. Sundowner Offshore Servs., Inc. , 523 U.S. 75, 77 (1998). In this case, however, t he specific facts are necessary to our analysis; thus, we lay t hem out accordingly. -3- Ms. Dick describes the alleged harassment in terms of “a working environment permeated by sexually explicit banter, insults, lewd jokes, gestures, games, and devices.” Dick v. Phone Directories Company, Inc ., 265 F. Supp. 2d 1274, 1275 (D. Utah 2003). PDC’s Vernal office con sists primarily of women; only two men worked there during the relevant time period. Three female coworkers and Ms. Bills took part in the conduct. Camie Hinkle, a coworker with no supervisory authority over Ms. Dick, appears to have taken the most prominent role in the harassment, so we begin with Ms. Dick’s allegations about her conduct. 1 Ms. Hinkle would approach Ms. Bills and another cow orker from behind and make sexual gestures with her body toward them, although whether this involved physical contact is unclear. At one point , she put her foot in Ms. Bills’ lap and said, “Yo, buff b*tch. How does that feel? Yo, buff b*tch. You like that.” On other occasions, she would pinch Ms. Bil ls’ breast and buttocks. She also is alleged to have hung a replica of a penis f rom the ceiling and to have brought a pillow to the office that she would kneel on while referring to oral sex with a man. The only behavior Ms. Hinkle specifica lly directed toward Ms. Dick,-4-

however, appears to be that twice Ms. Hinkle attemp ted to pinch Ms. Dick’s breasts but Ms. Dick told her to get away from her, and that once at a novelty shop over the lunch hour Ms. Hinkle shoved a sex to y in the shape of a penis toward Ms. Dick. The other alleged harassers are Ms. Bills, Dee Cole man, and Andrea Snow. Ms. Dick alleges that Ms. Bills often would tell co workers “f*ck you” and should have taken greater steps to stop the harassing cond uct of the other women in the office. Ms. Coleman often would point to Ms. Dick’ s collection of stuffed cats on her desk and say that Ms. Dick had a “pussy.” M s. Coleman also would kneel on the pillow brought by Ms. Hinkle and make simila r references to oral sex. Ms. Snow would bend over her desk while she was not wearing underwear, also used the pillow while making oral sex references, and qu estioned Ms. Dick about a sex toy apparently used by lesbians. Ms. Dick also all eges that she was often called “Ivanna Dick” and “Granny Dick,” that some of the w omen would simulate sex with a stuffed bear, and that vulgar rap music was often played in the office. Ms. Dick also makes many separate allegations regar ding the sexual orientation of the above women, but most of them co nstitute inadmissible hearsay which we address below. She properly alleges, howe ver, that the office bulletin board was decorated in rainbow colors—which symboli zes gay pride—and that she witnessed Ms. Bills and an openly gay coworker, Teena Northern, lock-5-

themselves into various rooms at the office for ext ended periods of time. Ms. Dick’s granddaughter often babysat for Ms. Northern ’s children, but after learning that Ms. Northern was homosexual, Ms. Dicktestified that “I wasn’t upset that [PDC] hired a lesbian. I was upset thatnobody told me so that I could make a decision about my granddaughter.” In November and December 2000, Ms. Dick complained to Ms. Bills about the office environment. Ms. Bills allegedly said, “[t]his is going to be a fun office” and ignored her complaints. Subsequently, Ms. Dick claims that Ms. Bills and her coworkers retaliated against her. These ac ts of retaliation are not specifically enumerated but appear to include incre ased hostility by coworkers, being “written up” by Ms. Bills over a disagreementwith a coworker, and the circulation of an office memo instructing employees to refrain from using “foul language,” “personal gestures,” and being “loud and obnoxious.” Moreover, at one point, Ms. Dick alleges that Ms. Bills threaten ed to fire her if she complained to Ms. Bills’ supervisor, Jason Davis. This threatwas never carried out. Then, in March 2001, Ms. Dick filed a charge of dis crimination with the Utah Anti-Discrimination Division. The following m onth, Ms. Dick, Ms. Hinkle, and Ms. Coleman had a dispute outside the office. Ms. Dick, who lives across the street from Ms. Hinkle, saw Ms. Coleman’s car pull into Ms. Hinkle’s driveway. Because Ms. Coleman and Ms. Hinkle were not friends , Ms. Dick thought the two-6-

women were meeting together to talk about her. The next day, at seven in the morning, Ms. Dick went inside Ms. Coleman’s home an d confronted her. Ms. Coleman was angry with Ms. Dick for being in her ho me and later allegedly sent her the following unsigned e-mail: As far as I’m concerned where I go is my business and how long im [sic] there is my business, and I don’t ever want t o see u [sic] driving by my house watching me and don’t ever walk into my home again! . . . No one hates you or is trying to get you fired, we don’t understand whats goin thru [sic] your head. But anyway, this a ll stops here . . . don’t try to pull anymore sh*t, we are not going to put up with it, we are a team and we must all get along. After receiving the e-mail, Ms. Dick phoned the hom e of another coworker, Dee Dee York, but did not reach her. Ms. Dick then phoned Ms. York’s mother’s home but was still unable to contact Ms. York. Ms. York and Ms. Coleman then complained to Mr. Davis about Ms. Dick’s conduct. He told them that the issue was not within his “jurisdiction” and that they sho uld call “who they felt would help them.” It is unclear whether Mr. Davis instru cted the women to contact the police, but the women did do so. Thereafter, a pol ice report was filed, but no charges were brought against Ms. Dick. Ms. Dick filed this complaint against PDC in Octobe r 2001, alleging Title VII claims for hostile work environment same-sex di scrimination, see 42 U.S.C. § 2000e-2, and retaliation, see 42 U.S.C. § 2000e-3, and for negligent employment of harassers under state law, see Retherford v. AT & T2 Because Ms. Dick does not raise her state law claim on appeal, it is

waived. Powers v. Harris , 379 F.3d 1208, 1214 n.11 (10th Cir. 2004). -7- Communications of Mountain States, Inc ., 844 P.2d 949, 967 (Utah 1992). The District Court granted summary judgment in favor of PDC on both Title VII claims. In dismissing the hostile work environmentclaim, the court held that Ms. Dick had not shown that the harassment was because of her sex. As to her retaliation claim, the court held that Ms. Dick had not shown an adverse employment action. It then refused to exercise sup plemental jurisdiction over the negligent employment claim. See 28 U.S.C. § 1367(c)(3). Ms. Dick now timely appeals the District Court’s order granting summaryjudgment on her hostile work environment and retaliation claims. 2
II. STANDARD OF REVIEW We review the District Court’s “grant of summary ju dgment de novo, applying the same standards used by the district co urt.” Byers v. City of Albuquerque , 150 F.3d 1271, 1274 (10th Cir. 1998). Summary ju dgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, i f 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 ). We view the evidence, and draw reasonable inferences therefrom, in the light most favorable to the-8-

nonmoving party. Byers , 150 F.3d at 1274.
III. DISCUSSION A. Hostile Work Environment Title VII prohibits an employer from “discriminat[i ng] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex. ” 42 U.S.C. § 2000e-2(a)(1). This statutory provision prohibits subjecting an employee to a hostile work environment. Meritor Savings Bank, FSB v. Vinson , 477 U.S. 57, 65 (1986). “To establish a sexually hostile work environment exist ed, a plaintiff must prove the following elements: (1) she is a member of a protec ted group; (2) she was subject to unwelcome harassment; (3) the harassment was bas ed on sex; and (4) [due to the harassment’s severity or pervasiveness], the harassment altered a term, condition, or privilege of the plaintiff’s employme nt and created an abusive working environment.” Seymore v. Shawver & Sons, Inc ., 111 F.3d 794, 797, 798 (10th Cir. 1997). The first and second elements of the claim are not in contention, and the District Court did not reach th e fourth. Therefore, we focus our discussion on the third element of the claim—wh ether Ms. Dick was discriminated against because of her sex.
In Oncale v. Sundowner Offshore Servs., Inc. , 523 U.S. 75, 79–80 (1998), the Supreme Court held that both opposite-sex and s ame-sex sexual harassment is3 The relevant portion of the Court’s opinion reads i n full:

Courts and juries have found the inference of discr imination easy to draw in most male-female sexual harassment situatio ns, because the (continued...) -9- actionable under Title VII, but that such harassmen t violates Title VII only when it is “because of sex.” The term “sex” under Title VII refers to a class delineated by gender. Taken v. Oklahoma Corp. Comm’n , 125 F.3d 1366, 1369 (10th Cir. 1997). Thus, even for same-sex sexual harassment c laims, “[i]f the nature of an employee’s environment, however unpleasant, is not due to her gender, she has not been the victim of sex discrimination as a resu lt of that environment.” Stahl v. Sun Microsystems, Inc. , 19 F.3d 533, 538 (10th Cir. 1994). Therefore, workplace harassment is not “automatically discrimi nation because of sex merely because the words used have sexual content or conno tations.” Oncale , 523 U.S. at 80. Indeed, Title VII is not “a general civility code for the American workplace.” Id. Rather, the critical issue in determining whetherharassment is because of sex is whether members of one sex are su bjected to a disadvantage to which the other sex is not. Id. After recognizing a cause of action for same-sex se xual harassment, the Oncale Court laid out three evidentiary routes in which an inference of discrimination because of sex can be drawn in the h ostile work environment

context. 3 Id. at 80–81. First, the Court held that the inference is “easy to draw”3 (...continued)

challenged conduct typically involves explicit or i mplicit proposals of sexual activity; it is reasonable to assume thos e proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff allegin g same-sex harassment, if there were credible evidence that th e harasser was homosexual. But harassing conduct need not be motiv ated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimi nation, for example, if a female victim is harassed in such sex -specific and derogatory terms by another woman as to make it cle ar that the harasser is motivated by general hostility to the p resence of women in the workplace. A same-sex harassment plaintiff m ay also, of course, offer direct com-parative evidence about ho w the alleged harasser treated members of both sexes in a mixed-s ex workplace. Id. at 80–81. -10- if the harasser and the harassed employee are of op posite sexes, at least when the conduct at issue involves “explicit or implicit pro posals of sexual activity”; in that setting, “it is reasonable to assume those pro posals would not have been made to someone of the same sex.” Id . at 80. This same inference can be drawn where the persons involved are of the same sex “if there [is] credible evidence that the harasser [is] homosexual.” Id . The Court was quick to point out, however, that “harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.” Id . Hence, the inference of discrimination because of sex may be f ound a second way, such as when a woman harasses another woman “in such sex-sp ecific and derogatory terms . . . as to make it clear that the harasser i s motivated by general hostility to4 Ms. Dick also argues her discrimination was “becaus e of sex” under

Oncale ’s third evidentiary route; that is, she argues that her harassers treated men and women differently in the workplace. See Oncale , 523 U.S. at 80–81; see also Chavez v. Thomas & Betts Corp. , __ F.3d __, __, 2005 WL 139155, *3–4 (10th Cir. Jan. 24, 2005). We need not discuss Oncale ’s third evidentiary route because we hold Ms. Dick has satisfied Oncale ’s first evidentiary route. A jury, however, is certainly free to consider such evidence at tria l. -11- the presence of women in the workplace.” Id . Sex discrimination may be inferred yet a third way—when the plaintiff offers proof that the harasser treats men and women differently in the workplace. Id . at 80–81. The Court concluded that “[w]hatever evidentiary route the plaintiff ch ooses to follow, he or she must always prove that the conduct at issue was not mere ly tinged with offensive sexual connotations, but actually constituted ‘disc rimina[tion] . . . because of . . .
sex.’” Id . at 81 (emphasis omitted). Ms. Dick relies primar ily on the first route, making this a case of first impression for this Cou rt. 4 At first blush, it might appear that the crucial co mponent of the first evidentiary route is that the victim put on “eviden ce that the harasser [is] homosexual.” Id . at 80. Indeed, some courts have so held. See Shepherd v. Slater Steels Corp. , 168 F.3d 998, 1010 (7th Cir. 1999) (evidence tendin g to show that the defendant is sexually oriented toward memb ers of the same sex leads to inference that the harassment is because of sex). Other courts require the victim to show that the harasser was “motivated by sexual desire.” See Bibby v. Philadelphia Coca Cola Bottling Co. , 260 F.3d 257, 264 (3d Cir. 2001) (requiring-12-

evidence that the harasser sexually desires the vic tim). Still others appear to blend both approaches. See La Day v. Catalyst Tech., Inc. , 302 F.3d 474, 478 (5th Cir. 2002) (requiring evidence that the harass er is homosexual and that the harassment was an explicit or implicit proposal forsexual activity). Faced with no direction from this Court, the District Court co ncluded that a showing of both homosexuality and sexual motivation was required. Dick, 265 F. Supp. 2d at 1277–78. We now speak to the issue, however, and h old that Oncale ’s first evidentiary route regarding whether same-sex harass ment is because of the victim’s sex hinges on whether the harasser’s condu ct is motivated by sexual desire. Oncale , 523 U.S. at 80. To begin, Oncale ’s first evidentiary route clearly encompasses cond uct that is motivated by sexual desire because the Court pre faces its discussion of the second and third evidentiary routes by noting that, in contrast to the first evidentiary route, the second two routes do not req uire evidence that the harassing conduct was “motivated by sexual desire.” Id. It directly follows, then, that the Court considered conduct that was motivated by sexu al desire to meet the requirements under the first evidentiary route. Oncale also suggests one way to establish that harassing c onduct between members of the same sex is motivated by sexual desi re. The Court indicated that conduct between members of the opposite sex that ca n be characterized as-13-

“explicit or implicit proposals of sexual activity” will support a finding that the harasser was motivated by sexual desire—and, theref ore, that the conduct took place as a result of the victim’s sex. Id. The Court then went on to surmise that the same type of conduct between members of the sam e sex could also be found to be motivated by sexual desire, at least when the ha rasser is homosexual. Id. Thus, we hold that under Oncale , one way, but by no means the only way, a plaintiff in a same-sex sexual harassment suit may demonstrate that the harassing conduct was motivated by sexual desire, and therefo re occurred because of her sex, is to establish both that the harassing conduc t constitutes an explicit or implicit proposal for sexual activity and that her harasser is homosexual. But a plaintiff need not, in every first-evidentiary-route case, establish that her harasser is homosexual in order to demonstrate that the harassing conduct was motivated by sexual desire. First, the text of Oncale does not limit the first evidentiary route only to the situation described a bove. Second, we note the possibility that an alleged harasser may consider h erself “heterosexual” but nonetheless propose or desire sexual activity with another woman in a harassing manner. In that scenario, evidence of homosexuality beyond that of her conduct itself may not be forthcoming, although the harasse r still acted out of sexual desire. Indeed, aside from testimonial evidence orthe fact of the harassing conduct, we find it would often be extremely diffic ult to obtain evidence tending-14-

to show a person’s sexual orientation. Therefore, while the fact that the harasser is homosexual may support a finding that her conduc t was motivated by sexual desire, we do not read Oncale to require a plaintiff to demonstrate, in every fir stevidentiary-route case, such a fact. We emphasize that Oncale ’s first evidentiary route turns on whether the harasser acted out of se xual desire. A plaintiff who makes this showing establishes that the harassment took place because of her sex, regardless whether she has also demonstrated that h er harasser is homosexual. We turn now to Ms. Dick’s allegations to determine whether there is a genuine issue of material fact as to whether Ms. Di ck’s harassers were motivated by sexual desire. In granting summary judgment in favor of PDC, the District Court relied in large part on evidence tending to s how that Ms. Hinkle, Ms. Bills, Ms. Coleman, and Ms. Snow harassed Ms. Dick because they did not like her and wanted to humiliate her—not because they were motiv ated by sexual desire. See LaDay , 302 F.3d at 480 (“evidence suggesting that the ha rasser intended to have some kind of sexual contact with the plaintiff . . . [only] to humiliate [her] for reasons unrelated to sexual interest” does not sati sfy the first evidentiary route outlined in Oncale ). In support of its finding, the District Court point ed out that Ms. Dick admitted in her own deposition that she felt Ms. Hi nkle harassed her in order to aggravate and annoy her and that she is unsure whatMs. Hinkle’s sexual-15-

intentions were. As to the other harassers and oth er types of conduct, Ms. Dick states in her deposition that “[t]hey knew I didn’tlike stuff like that. They constantly would do things like that to upset me. They just thought it was hilarious.” Other facts in the record further supp ort the inference that Ms. Dick was not well-liked by her coworkers at PDC and was harassed for this reason. First, Ms. Dick was consistently a top salesperson, receiving substantial awards for her work achievements. Second, Ms. Dick expres sed concern that her granddaughter was babysitting the children of an op enly gay coworker. Third, after Ms. Bills’ predecessor left PDC but prior to Ms. Bills’ arrival, Ms. Dick assumed the role of supervisor without authorizatio n from management—conduct that was not well-received by at least one coworker . Fourth, the e-mail allegedly sent by Ms. Coleman indicates Ms. Dick’s coworkers thought she was a busybody. Thus, we agree with the District Court that the har assment of which Ms. Dick complains—harassment that is most often expressed b y unprofessional conduct, foul-mouthed attempts at humor, and crude puns on M s. Dick’s last name—could be viewed as an attempt to humiliate Ms. Dick rathe r than as conduct that was motivated by sexual desire. Nonetheless, we cannot agree that, as a matter of l aw, Ms. Dick was harassed out of sheer dislike. The record contains sufficient evidence from which a jury could find that her harrasers’ conduct was m otivated by sexual desire. Ms.5 Ms. Dick also makes a variety of allegations about her coworkers’ sexual

orientation in support of her hostile work environm ent claim. The District Court excluded these allegations as inadmissible hearsay, however, and we agree. See Starr v. Pearle Vision, Inc ., 54 F.3d 1548, 1555 (10th Cir. 1995) (holding that Rule 56 precludes the use of inadmissible hearsay i n depositions submitted in support of, or in opposition to, summary judgment). Ms. Dick specifically appeals the District Court’s exclusion of (1) testi mony by a coworker, Jackie Ivie, that Ms. Coleman told her that she (Ms. Coleman) wa s homosexual, and (2) statements that the office was known as the “lesbia n factory.” She argues the first statement is admissible as a party-opponent admissi on, see F.R.E. 801(d)(2), but we hold that it is not a party admission because itdoes not concern a matter within the scope of Ms. Coleman’s employment with P DC, see F.R.E. 801(d)(2)(D). Ms. Dick argues the second statementis admissible as concerning the reputation of a person’s character, see F.R.E. 803(21), but we hold that this (continued...) -16- Hinkle touched, on more than one occasion, one of t he most intimate parts of Ms. Dick’s body—an act seldom carried out without some sort of sexual motivation. Second, Ms. Hinkle and Ms. Bills engaged in same-se x sexual conduct with other people in the workplace. See La Day , 302 F.3d at 480 (evidence showing that harasser made same-sex sexual advances to others in the workplace suggests that the conduct directed toward the plaintiff resulted from sexual interest). Here, Ms. Hinkle allegedly rubbed Ms. Bills’ crotch while ask ing Ms. Bills if she liked it. Ms. Dick also alleges that Ms. Bills locked herself in a room at the office with an openly gay coworker, which a jury might find indicates Ms. Bills tolerates sexually motivated conduct in the workplace. Final ly, while the shoving of a sex toy into Ms. Dick’s face could be viewed as an immature pun on her last name, we do not think that the record mandates this findi ng. 55 (...continued)

statement is not admissible under that Rule because the statement concerns neither a person nor her character. The District C ourt was correct not to consider the statements. -17- Given these facts, as well as Ms. Dick’s other alle gations concerning the conduct to which she was subjected, we conclude that the record contains evidence sufficient for the trier of fact to find t hat the harassing conduct was motivated by sexual desire. As such, there is a ge nuine issue of material fact as to whether the alleged harassers’ conduct toward Ms . Dick occurred because of her sex. We emphasize, however, that not every sexual commen t or gesture between members of the same sex, including those made by th e Defendants here, that might be motivated by sexual desire or construed as a sexual proposal is actionable under Title VII. Oncale counsels against such a conclusion, explaining that conduct that is because of sex will only be ac tionable when it is “‘severe or pervasive to create an objectively hostile or abusi ve work environment.’” Oncale , 523 U.S. at 81 (quoting Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21 (1993)). This requirement is “crucial,” id. , and prevents “ordinary socializing in the workplace—such as male-on-male horseplay or interse xual flirtation” from becoming prohibited sexual discrimination. Id. Indeed, the Court explained that in all sexual harassment cases, the question of whe ther conduct is sufficiently-18-

severe or pervasive “requires a careful considerati on of the social context in which particular behavior occurs and is experienced by its target.” Id. The Court concluded that such consideration “will enable courts and juries to distinguish between simple teasing or roughhousing among member s of the same sex” and conduct that is severely hostile or abusive. Id. In the case before us, however, the District Court did not reach the issue of whether the alleged harassment was sufficiently sev ere or pervasive to be actionable under Title VII. Therefore, while we re verse the District Court’s entry of summary judgment based on its determination thatMs. Dick was not subjected to harassment because of her sex, we remand for a d etermination as to whether the harassment was sufficiently severe or pervasive to create an abusive work environment. B. Retaliation Ms. Dick next contends that she was retaliated agai nst for complaining to Ms. Bills and the Utah Anti-Discrimination Division . Ms. Dick alleges that Ms. Bills threatened to fire her if she complained to M r. Davis, her supervisor, about the workplace environment; nevertheless, Ms. Dick h as not been fired. She further asserts that coworkers were hostile to her in the office, that Mr. Davis encouraged coworkers to file a police report agains t her, that Ms. Bills distributed an interoffice memo outlining and prohibiting inapp ropriate office behavior, and-19-

that Ms. Bills issued her a “write-up.” Title VII makes it an unlawful employment practice for an employer “to discriminate against any of his employees . . . bec ause he has opposed any practice made an unlawful employment practice by th is subchapter[.]” 42 U.S.C. § 2000e-3(a). In order to establish a prima facie case of retaliation, Ms. Dick must show (1) she engaged in protected opposition t o discrimination; (2) PDC took an adverse employment action against her; and (3) a causal connection between the protected activity and the adverse acti on. Jeffries v. Kansas , 147 F.3d 1220, 1231 (10th Cir. 1998). Ms. Dick may mai ntain an action for retaliation even though the conduct forming the bas is of her underlying complaint was not adjudged to have violated Title VII. Id. The parties agree that Ms. Dick satisfies the firstprong of the prima facie

case. See Hertz v. Luzenac America, Inc. , 370 F.3d 1014, 1015 (10th Cir. 2004) (“Protected opposition can range from filing formal charges to voicing informal complaints to superiors.”). The parties dispute, h owever, whether the alleged retaliatory acts constitute adverse employment acti ons and whether they are the result of Ms. Dick’s complaints. The District Court concluded that none of the incidents constitutes an adverse employment action and granted summary judgment in favor of PDC as a matter of law. On ap peal, Ms. Dick gives short shrift to her retaliation claim, raising these five alleged instances of retaliation in-20-

only two pages of her opening brief. We note that “[w]e will not manufacture arguments for an appellant, and a bare assertion do es not preserve a claim, particularly when, as here, a host of other issues are presented for review.” Craven v. Univ. of Colo. Hosp. Auth. , 260 F.3d 1218, 1226 (10th Cir. 2001) (internal quotation omitted). We begin with the un realized threat of termination.
1. Unrealized Threat of Termination Contingent Upon Engaging in Protected Title VII Activity An adverse employment action includes acts that “‘c onstitute[] a significant change in employment status, such as hiring, firing , failing to promote, reassignment with significantly different responsib ilities, or a decision causing a significant change in benefits.’” Sanchez v. Denver Pub. Schs. , 164 F.3d 527, 532 (10th Cir. 1998) (quoting Burlington Indus., Inc. v. Ellerth , 524 U.S. 742, 761 (1998)). In our recent decision of Hillig v. Rumsfeld, 381 F.3d 1028, 1033 (10th Cir. 2004), however, we expressly held that a n adverse employment action is not limited to such acts. Rather, we liberally interpret the second prong of the prima facie case and take a case-by-case approach, examining the “‘unique factors relevant to the situation at hand.’” Id. ; see also Stinnett v. Safeway, Inc. , 337 F.3d 1213, 1217 (10th Cir. 2003). Nevertheless, “w e will not consider ‘a mere inconvenience or an alteration of job responsibilit ies’ to be an adverse employment action.” Sanchez , 164 F.3d at 532. On appeal, Ms. Dick does not argue that her unreali zed termination falls-21-

within one of the four scenarios outlined in Sanchez , nor does she argue that the threat constitutes an adverse employment action und er Hillig . Further, she does not argue the District Court erred in relying on Jeffries v. State of Kansas , 147 F.3d 1220 (10th Cir. 1998), and Cole v. Ruidoso Municipal Schools , 43 F.3d 1373 (10th Cir. 1994), to hold that the threat was not a n adverse employment action. Rather, she merely asserts the District Court faile d to address the “threats of termination from her supervisor . . . . in light of the record as a whole, or to consider them in the context of Dick’s retaliatory harassment claim.” This curious assertion is unsupported by the record. Here, the District Court relied on the fact that we have never expressly held that an unrealized threat of termination, without m ore, constitutes an adverse employment action. For example, in Jeffries , a resident chaplain and student at a state hospital filed a formal sexual harassment complaint against a coworker. 147 F.3d at 1226. After learning of the complaint, the stud ent’s supervisor told her that he would no longer supervise her as a student and that he would not renew her contract of employment. Id. at 1232. The student, however, quit before her contract had to be renewed. Id. at 1228. While we ultimately found an adverse employment action on other grounds, id. at 1232–33, we intimated that if certain special circumstances exist, such as a unique interpersonal or educational relationship between the supervisor and employee, a n unrealized threat of-22-

termination may constitute an adverse employment ac tion. Id. at 1232. Relying on this decision, the District Court held that Ms. Bills’ alleged threat was not an adverse employment action because Ms. Dick and Ms. Bill did not have the unique type of relationship present in that case. Dick, 265 F. Supp. 2d at 1288. The District Court also held that the alleged threat was not an adverse employment action because it was never carried out. It relied on Cole, in which we held that a principal’s statement, made after a teacher had filed a charge of discrimination with the EEOC, that the teacher’s pe rformance would be evaluated more often than other teachers of the same experien ce level was not an adverse employment action because “there was no suggestion that the requirement was ever adopted or carried out.” Cole , 43 F.3d at 1381. The District Court found this reasoning persuasive in this context because M s. Bills never carried through with her threat. Given the District Court’s thorou gh analysis of the entire record in light of our case law, Ms. Dick’s bare assertion that the District Court failed to consider her claim “in light of the record as a who le, or to consider them in the context of Dick’s retaliatory harassment claim[]” i s without merit.
2. Coworker Hostility Coworker hostility or retaliatory harassment may be an “adverse employment action” if it is sufficiently severe. Gunnell v. Utah Valley State Coll. , 152 F.3d 1253, 1264 (10th Cir. 1998). Assuming a rguendo that the-23-

hostility of which Ms. Dick complains rises to this actionable level, Ms. Dick has nonetheless failed to establish a genuine issue as to whether that hostility resulted from her complaints. In a single paragraph on appeal, Ms. Dick argues on ly “that every time [I] complained, [I] was retaliated against,” citing herdeposition testimony that “[e]very time I would complain, I would get the sam e results.” We note that a causal connection may be established by showing “ev idence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action.” Burrus v. United Tele. Co., Inc ., 683 F.2d 339, 343 (10th Cir. 1982). Ms. Dick, however, does not make this argument on appeal; indeed, she does not cite any legal authority relat ing to the causation element. In fact, Ms. Dick never even so much as mentions this crucial component of a retaliation cause of action. As such, we agree wit h the District Court that PDC is entitled to summary judgment on this claim.
3. Filing a Police Report Filing false criminal charges against, or the malic ious prosecution of, an employee can constitute an adverse employment actio n. Berry v. Stevinson Chevrolet , 74 F.3d 980, 986 (10th Cir. 1996). Ms. Dick alle ges that Mr. Davis instructed Ms. Dick’s coworkers to file a police re port against her in retaliation for bringing claims of harassment and that this con stitutes an adverse employment-24-

action. We agree with the reasoning of the Distric t Court and hold that the police report in this case is not an adverse employment ac tion.
In Berry , there was evidence that the employee’s former sup ervisor “caused individuals to report [a crime].” Id. We noted that criminal prosecution involving a public criminal trial would have “an ob vious impact” on the employee’s “future employment prospects.” Id. Unlike the plaintiff in Berry , however, Ms. Dick has not stood trial, and no forma l charges have been brought against her. Rather, her coworkers simply complain ed to the Vernal police, allegedly at Mr. Davis’s suggestion, which resulted in a police report. There is no evidence that the matter persisted beyond the filin g of the report. Unlike the public criminal trial to which the plaintiff in Berrywas subjected, the police report describing alleged incidents involving Ms. D ick does not “carr[y] a significant risk of humiliation, damage to reputati on, and a concomitant harm to future employment prospects.” Id. Accordingly, the police report in this context cannot be considered an adverse employment action.
4. Circulation of a “Do’s and Don’t’s Memo” Ms. Dick alleges that Ms. Bills’ circulation of a “ Do’s and Don’t’s Memo” admonishing employees not to be “loud and obnoxious in the office,” not to “share personal gestures (such as Burps, Farts, Etc .),” and not to use “foul language” was in retaliation for her complaints bec ause the memorandum was-25-

meant to “stir things up.” We agree with the Distr ict Court that because Title VII imposes a duty on an employer to reasonably investi gate and address a plaintiff’s complaints, a finding that such a memorandum is act ionable retaliatory conduct would produce an absurd result. Dick, 265 F. Supp. 2d at 1287. The memorandum reflected PDC’s attempt to bring positiv e changes to the office. Ms. Dick’s bare assertion of a contrary motivation is not sufficient to create a genuine issue of material fact on this issue.
5. Issuance of a “Write-Up” Ms. Dick maintains that a further example of an ad verse employment action was the disciplinary action taken against he r when she was “written up” for “making negative remarks about co-workers” immediat ely following a verbal altercation with Jackie Ivie (who was also written up). We have indicated that disciplinary action on the part of an employer can constitute adverse employment action. See Roberts v. Roadway Express, Inc. , 149 F.3d 1098, 1104 (10th Cir. 1998); Marx v. Schnuck Markets, Inc. , 76 F.3d 324, 329 (10th Cir. 1996). We agree with the District Court, however, that Roberts and Marx are distinguishable from the case before us. See Dick, 265 F. Supp. 2d at 1288–89.
In Roberts , for example, the plaintiff received twenty warnin g letters, two suspensions, and a termination, all within two year s of his complaint. The record also showed that the more warnings the plaintiff re ceived, the more likely he-26-

would be terminated—in other words, the disciplinary actions had a direct bearing on his future employment. Roberts , 149 F.3d at 1104. And in Marx , the write-up was only the first act taken by the employer that u ltimately culminated in the plaintiff’s termination. Marx , 76 F.3d at 329. In contrast, Ms. Dick alleges on ly one instance of a disciplinary action. Moreover, s he does not allege that the single write-up has any bearing on her likelihood o f being fired. On these facts, Ms. Dick has not demonstrated any harm to her futur e employment prospects. See Hillig , 381 F.3d at 1033. The single write-up is not an adverse employment action.
IV. CONCLUSION Therefore, we REVERSE the District Court’s order of summary judgment in favor of PDC as to Ms. Dick’s hostile work envir onment claim and AFFIRM its order of summary judgment in favor of PDC as to herretaliation claim.