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

### SEP 15 1998 

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

TENTH CIRCUIT

MICHELE PENRY,

Plaintiff - Appellant,

v. FEDERAL HOME LOAN BANK OF TOPEKA, and its representatives; CHARLES R. WAGGONER, in his capacity as defendants’ representative and in his individual capacity,

Defendants - Appellees.

--------------------------------------------- DEBRA ANN GILLUM

Plaintiff - Appellant,

v. FEDERAL HOME LOAN BANK OF TOPEKA, and its representatives; CHARLES R. WAGGONER, in his capacity as defendants’ representative and in his individual capacity,

Defendants - Appellees.

-------------------------- EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Amicus Curiae. No. 97-3203

No. 97-3204- 2 -

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D. Ct. No. 94-4197-DES)
Michael B. Myers (Cheryl D. Myers, with him on the briefs), Myers & Myers, Topeka, Kansas, appearing for Plaintiffs-Appellants

. Patricia E. Riley (Denise M. Howard, with her on th e briefs), Weathers & Riley, Topeka, Kansas, appearing for Defendants-Appellees. Barbara L. Sloan, Attorney (C. Gregory Stewart, Gen eral Counsel, J. Ray Terry, Jr., Deputy General Counsel, Vincent J. Blackwood, Acting Associate General Counsel, and Carolyn L. Wheeler, Assistant General Counsel, with her on the brief), Equal Employment Opportunity Commission, Wa shington, DC, appearing for amicus curiae Equal Employment Opportunity Comm ission.

Before PORFILIO , McKAY , and TACHA , Circuit Judges.

TACHA , Circuit Judge.

Plaintiffs Michele Penry and Debra Ann Gillum sued their employer, Federal Home Loan Bank of Topeka (FHLB), for sexual harassment and retaliation under Title VII of the Civil Rights Actof 1964 and for intentional infliction of emotional distress under Kansas state law. Gillum, who resigned prior to suing the bank, also claimed constructive discharge. The district court granted the defendants’ motions for summary judgment on all claims. Penry and Gillum appeal the grants of summary judgment, and w e exercise jurisdiction over their consolidated appeals under 28 U.S.C. § 1291. We affirm the entry of- 3 -

summary judgment on all claims.
B ACKGROUND Both Penry and Gillum base their complaints of sexu al harassment on the actions of Charles Waggoner, another FHLB employee and, for most of the relevant time period, their supervisor at the bank. Both of the plaintiffs began working at FHLB in 1989 and held the position of co llateral review assistant at all relevant times. In 1989, FHLB hired Waggoner as th e collateral review manager. The duties of the collateral assistants included ac companying Waggoner on outof-town trips to borrowing financial institutions t o conduct on-site inspections of collateral. Prior to November 1992, Waggoner was n ot the plaintiffs’ immediate supervisor at FHLB, but he did have supervisory authority over the collateral assistants during the out-of-town inspection trips. In November 1992, he became their direct supervisor. Both plaintiffs describe a variety of inappropriate comments and behavior by Waggoner between 1990 and 1993. Gillum asserts that several times when she and Waggoner traveled together for FHLB business, h e intentionally gave hotel clerks the impression that he and Gillum were to sh are a room, leaving it to Gillum to correct the situation. While Penry was o n business travel with Waggoner in March 1990, he asked her if women have wet dreams. While Waggoner and Gillum were on a business trip togethe r in April 1990, Waggoner- 4 -

took Gillum to dine at Hooters, a restaurant whose marketing theme is based on its well-endowed female waiting staff. Gillum was unaware of this feature of the restaurant until after they arrived. Later, Penry and Gillum learned from another woman in their department that Waggoner had also ch osen that restaurant while on business travel with her. On another trip, Waggo ner insisted that Gillum work in his hotel room despite her protests and request to work in her own room. During a business trip in October of 1990, Waggonertold Penry that her bra strap was showing but then said, according to P enry, that he kind of liked it that way. In March of 1991, Gillum overheard Waggo ner make a double entendre to another male employee that one of the female ass istants “allowed him to get in her drawers anytime.” In November 1992, Waggoner a sked Penry what she was wearing under her dress and laughed when she said s he did not appreciate the comment. On separate occasions in 1990 and 1991, W aggoner pointed out to each of the plaintiffs that the roof of a particula r mall was shaped like a woman’s breasts. Penry alleges that in the fall of 1992, W aggoner began following her constantly when she got up to go to the breakroom o r the bathroom. Gillum alleges that between spring of 1991 and spring 1992 , Waggoner would often (at least twice a week) stand and stare at her while sh e was working. In December 1992, Waggoner called one of the other female revie w assistants over to where he and Penry and Gillum were gathered by demanding, “b ring your buns over here.”- 5 -

Gillum alleges that on one day in 1993, Waggoner le aned against her and repeatedly tried to look down her blouse. Waggonerrepeatedly referred to the collateral assistants as “gals” rather than by name when introducing them to employees at other banks on travel, despite their r equests that he stop doing so. Both plaintiffs allege that Waggoner needlessly tou ched them on many occasions throughout the years they worked with him. Each complains that he would often sneak up from behind and grab her shoulders while l oudly saying her name to startle her. Penry and Gillum each informed Waggoner on several occasions that they did not like his behavior and asked him to stop. B oth plaintiffs also complained to their supervisors about Waggoner’s conduct, incl uding Sonia Betsworth and human resources manager Michael Cnossen. After another woman working under Waggoner resignedin February 1993, Gillum overheard him say, “One down, two to go,” wh ich she understood to mean Waggoner was trying to get rid of her and Penry. G illum finally resigned in June 1993. Penry remained at the bank, but began workin g at a different department in March 1994. FHLB terminated Waggoner in November 1 994.
D ISCUSSION We review a grant of summary judgment de novo, appl ying the same legal standard used by the district court. See Wolf v. Prudential Ins. Co. of Am. , 50- 6 -

F.3d 793, 796 (10th Cir. 1995) (further citations o mitted). The entry of summary judgment is appropriate only “if the pleadings, dep ositions, answers to interrogatories, and admissions on file, together w ith the affidavits, if any, show that there is no genuine issue as to any material f act and that the moving party is entitled to a judgment as a matter of law.” F ED
. R. C IV
. P. 56(c). The moving party is entitled to summary judgment “[w]here the record taken as a whole could not lead a rational trier of fact to find for the n on-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). When applying this standard, the court must examine the factual r ecord and reasonable inferences drawn therefrom in the light most favorable to the non-moving party. See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir.1996). I. Title VII Sexual Harassment Claim Title VII makes it unlawful for an employer to disc riminate against any individual with respect to her compensation, terms, conditions, or privileges of employment on account of her sex. See 42 U.S.C. § 2000e-2(a)(1). The plaintiffs base their Title VII sexual harassment claims on a hostile work environment theory. For a hostile environment claim to survive a summary judgment motion, “a plaintiff must show that a rational jury could find that the workplace is permeated with discriminatory intimidation, ridicule, and ins ult, that is sufficiently severe or- 7 -

pervasive to alter the conditions of the victim’s e mployment and create an abusive working environment.” Davis v. U.S. Postal Service , 142 F.3d 1334, 1341 (10th Cir. 1998) (internal quotation marks and citations omitted). The plaintiff must produce evidence that she was the object of harassm ent because of her gender. Conduct that is overtly sexual may be presumed to b e because of the victim’s gender; however, actionable conduct is not limited to behavior motivated by sexual desire. See Oncale v. Sundowner Offshore Services, Inc. , 118 S. Ct. 998, 1002 (1998); Hicks v. Gates Rubber Co. , 833 F.2d 1406, 1415 (10th Cir. 1987). While the plaintiff must make a showing that the en vironment was both objectively and subjectively hostile, she need not demonstrate psychological harm, nor is she required to show that her work suf fered as a result of the harassment. See Davis , 142 F.3d at 1341. The district court found that of all the allegation s made by the plaintiffs, only a few were due to gender. In Gillum’s case, t he court concluded that Waggoner had made one gender-based comment (regardi ng getting into an assistant’s “drawers”) and engaged in four specific acts of unwanted physical contact, all of which were because of her gender, i n addition to other touching that occurred periodically. See Gillum v. Federal Home Loan Bank , 970 F. Supp. 843, 852 (D. Kan. 1997). In Penry’s case, the court found only that Waggoner had made four gender-based comments (the comments o n wet dreams, Penry’s- 8 -

exposed bra strap, the “drawers” comment, and askin g Penry what she was wearing under her dress), and that none of his cond uct toward Penry constituted sexually offensive touching. See Penry v. Federal Home Loan Bank , 970 F. Supp. 833, 840 (D. Kan. 1997). In each case, having narr owed down the relevant acts to a few incidents, the court found that the conduct w as not severe or pervasive enough to create an environment that a reasonable j uror could find hostile and abusive. Gillum , 970 F. Supp. at 852; Penry , 970 F. Supp. at 840. We agree with the district court on the number of g ender-based incidents that occurred in these cases, and we do not find th at other gender-based incidents occurred. We do disagree slightly, however, with the district court’s analysis of the evidence, though not with its ultimate conclusi on. The court determined that most of the incidents alleged did not occur because of the plaintiffs’ gender and were therefore irrelevant to their claims. In revi ewing the record, the district court mechanically proceeded through the evidence, determining that certain of Waggoner’s conduct was gender-based (and therefore relevant to the plaintiffs’ claims), while determining that the other conduct w as not gender-based (and was therefore irrelevant to the plaintiffs’ claims). O ur precedents, however, eschew such a mechanical approach to analyzing hostile work environment claims. In Meritor Savings Bank v. Vinson , the Supreme Court stated that the existence of sexual harassment must be determined “in light of the record as a whole,” and the- 9 -

trier of fact must examine the totality of the circ umstances, including “the context in which the alleged incidents occurred.” Meritor , 477 U.S. 57, 69 (1986) (quoting EEOC guidelines, 29 C.F.R. § 1604.11(b) (1 985)) (internal quotation marks omitted). With this in mind, our hostile env ironment cases consistently have emphasized the need for the district court to examine the totality of the circumstances when reviewing a summary judgment mot ion. See, e.g. , Davis , 142 F.3d at 1341; Smith v. Northwest Financial Acceptan ce, Inc. , 129 F.3d 1408, 1413 (10th Cir. 1997). Indeed, the very term “envi ronment” indicates that allegedly discriminatory incidents should not be ex amined in isolation. “[O]ne of the critical inquiries in a hostile environment cla im must be the environment

. Evidence of a general work atmosphere therefore—as well as evidence of specific hostility directed toward the plaintiff—is an important factor in evaluating the claim.” Hicks , 833 F.2d at 1415. The Third Circuit has aptly de scribed the need to examine the totality of the circumstances in hos tile environment cases: A play cannot be understood on the basis of some of its scenes but only on its entire performance, and similarly, a di scrimination analysis must concentrate not on individual incidents, but on the overall scenario. As the Court of Appeals for the Eleventh Circuit noted, the factfinder in this type of case should n ot “necessarily examine each alleged incident of harassment in a va cuum. What may appear to be a legitimate justification for a singl e incident of alleged harassment may look pretextual when viewed in the c ontext of several other related incidents.” Andrews v. City of Philadelphia , 895 F.2d 1469, 1484 (3rd Cir. 1990) (quoting- 10 -

Vance v. Southern Bell Tel. & Tel. Co. , 863 F.2d 1503, 1510 (11th Cir. 1989)). In light of the record as a whole, we find that at least two of the incidents that the district court found not to be gender-base d are nevertheless relevant to the plaintiffs’ claims of a hostile work environment. First, Waggoner made comments to both Gillum and Penry about the mall ro of looking like a woman’s breasts. The district court said of these comments : [T]he court is not convinced that Waggoner would no t have made these remarks but for [plaintiff’s] gender. To the contrary, it seems likely . . . that he would have made the same remar k to any associate . . . . Again, while such conduct in a business en vironment might demonstrate a certain degree of baseness, it does n ot demonstrate sexual animus or gender bias, and [plaintiff] prese nts no evidence to the contrary. Gillum , 970 F. Supp. at 850, Penry , 970 F. Supp. at 839-40. Second, the district court observed that Waggoner had taken Gillum to Ho oters while on business travel, and similar to its treatment of the mall ro of comments, the district court discounted the Hooters incident as relevant. The defendants assert that we should not consider e ither of these pieces of evidence since Waggoner may have been as likely to engage in such conduct in the presence of men, and therefore his conduct was not because of sex. While this may be true, we do not think that the evidence is irrelevant and beyond consideration. See Stacks v. Southwestern Bell Yellow Pages, Inc. , 27 F.3d 1316, 1320, 1327 (8th Cir. 1994) (finding that evidence r elating to a performance by a- 11 -

female stripper at a sales meeting, a videotape sho wing female sales representatives baring their breasts to their male colleagues, and parties held after sales canvasses to which men brought dates referredto as “road whores” in place of their wives, was relevant to plaintiff’s hostile environment claim). It is true that Waggoner might have been just as likely to tak e a male assistant to Hooters, or that he may have been equally inclined to commen t about the shape of the mall roof to a male colleague. In that sense, those inc idents were not “because of the plaintiff’s gender” and could not be the basis for liability. Nonetheless, these acts have gender-related implications; we cannot, with s traight faces, say that Waggoner’s trips to Hooters had nothing to do with gender. Indeed, the restaurant’s name aims to attract business with a d ouble entendre implicating the female anatomy. Cf. Ray v. Tandem Computers, Inc. , 63 F.3d 429 (5th Cir. 1995) (noting that evidence of a lunch meeting at Hooters , “a restaurant/bar known more for the attire of its service personnel than its cu isine,” id . at 432, “may be relevant to a supervisor’s motives in employment actions,” i d . at 434). Nor can we say that Waggoner’s mall roof comments had nothing to d o with gender. Even where the motive behind the alleged conduct was not the p laintiff’s gender, the court may still consider that conduct relevant when evalu ating whether ambiguous conduct was in fact gender-motivated or whether gen der-motivated conduct was so severe and pervasive as to create Title VII liab ility.- 12 -

Accordingly, we turn to the evidence. As noted abo ve, we agree with the district court’s assessment of which incidents were gender-motivated and which incidents were not. Even after examining that evid ence in light of the Hooters incident and mall roof comments, however, we are st ill unable to conclude that a rational jury could find that plaintiffs’ workplace was permeated with discriminatory intimidation. We have no doubt thatthe plaintiffs worked in an unpleasant environment. Nevertheless, the gender-b ased incidents were too few and far between to be considered “sufficiently seve re or pervasive to alter the conditions of the victims’ employment and create anabusive working environment.” Id. (citations and internal quotation marks omitted). The genderbased incidents were spread out over a period of mo re than three years and are insufficient to establish a discriminatorily hostil e environment. Cf. Hicks , 833 F.2d at 1412 (stating that plaintiffs must prove mo re than a few isolated incidents of racial enmity in hostile work environment case). The vast majority of Waggoner’s behavior set forth in the plaintiffs’ 200- paragraph statement of facts seems motivated by poo r taste and a lack of professionalism rather than by the plaintiffs’ gend er. What made the plaintiffs’ environment hostile, if anything, was not the gende r-based incidents but instead the gender-neutral antics perpetrated by Waggoner throughout his four-year career at FHLB. “If the nature of an employee’s environme nt, however unpleasant, is- 13 -

not due to her gender, she has not been the victim of sex discrimination as a result of that environment.” Stahl v. Sun Microsystems, I nc. , 19 F.3d 533, 538 (10th Cir. 1994). We affirm the grant of summary judgment for the defendants on the plaintiffs’ hostile environment claims. II. Retaliation Claims Penry and Gillum next contend that the defendants r etaliated against them when they complained to Waggoner and to their supervisors about Waggoner’s harassment. Title VII prohibits an employer from d iscriminating against an employee in retaliation for opposing unlawful emplo yment practices. See 42 U.S.C. § 2000e-3(a). To establish a prima facie ca se of retaliation under Title VII, the plaintiff must show that “(1) she engaged in protected opposition to Title VII discrimination or participated in a Title VII p roceeding; (2) she suffered an adverse employment action contemporaneous with or s ubsequent to such opposition or participation; and (3) there is a cau sal connection between the protected activity and the adverse employment actio n.” Cole v. Ruidoso Municipal Schools , 43 F.3d 1373, 1381 (10th Cir. 1994). After a thorough review of the record, we agree with the district court that the plaintiffs have not provided sufficient evidenc e to establish a prima facie case of retaliation. The record fails to demonstrate th at either of the plaintiffs suffered adverse employment action in connection with their complaints regarding- 14 -

Waggoner or their lawsuits. There are no genuine i ssues of material fact on this issue. Thus, we affirm the grant of summary judgme nt for the defendants on the Title VII retaliation claims. III. Emotional Distress Claims Both Penry and Gillum assert claims of intentional infliction of emotional distress against the defendants. Under Kansas law, liability for emotional distress has two threshold requirements. To resolve a motio n for summary judgment on an emotional distress claim, the court must determi ne: (1) Whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery; and (2) whether the emotional distress suffered by plaintiff is in such extreme degree the law must intervene because the distress inflict ed is so severe that no reasonable person should be expected to endure i t. Lindemuth v. Goodyear Tire & Rubber Co. , 864 P.2d 744, 749 (Kan. 1993) (quoting Roberts v. Saylor , 637 P.2d 1175, 1179 (Kan. 1981)). Conduct is not extreme and outrageous unless it is regarded as bei ng “beyond the bounds of decency and utterly intolerable in a civilized soci ety.” Moore v. State Bank , 729 P.2d 1205, 1211 (Kan. 1986). We agree with the dis trict court that the plaintiffs have failed to demonstrate that either Waggoner’s o r FHLB’s conduct may reasonably be regarded as extreme and outrageous as required by Kansas law. We affirm the district court’s entry of summary judgme nt for the defendants on the emotional distress claims.- 15 -

IV. Gillum’s Constructive Discharge Claim In addition to the claims discussed above, Gillum ( who resigned from FHLB in 1993) claimed that she was constructively d ischarged. To support a Title VII claim of constructive discharge, the plai ntiff “must produce evidence that the employer by its illegal discriminatory act s has made working conditions so difficult that a reasonable person in the employ ee's position would feel compelled to resign.” Thomas v. Denny’s, Inc. , 111 F.3d 1506, 1514 (10th Cir.) (citations and internal quotation marks omitted), c ert. denied , 118 S. Ct. 626 (1997). Even viewing Gillum’s allegations in the l ight most favorable to her, we find that she has not met this threshold, and we af firm the district court’s grant of summary judgment for the defendants on this claim.
C ONCLUSION For the reasons set forth above, we AFFIRM the entry of summary judgment for the defendants on the plaintiffs’ Titl e VII hostile environment and retaliation claims, their state law claims of emoti onal distress, and Gillum’s claim of constructive discharge. Defendants’ motion to supplement the record on appe al is denied.