* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

† The Honorable Richard D. Rogers, Senior District Ju dge for the District of Kansas, sitting by designation. 

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

### APR 12 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PEGGY SUE TUTTON,

Plaintiff - Appellant,

v. ABC SUPPLY CO., INC.,

Defendant - Appellee. No. 98-5262 (D. Ct. No. 97-CV-564-H) (N.D. Okla.)

ORDER AND JUDGMENT *

Before TACHAand BRISCOE , Circuit Judges, and ROGERS † , District Judge.
After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered sub mitted without oral argument. Plaintiff Tutton sued defendant ABC Supply Co., herformer employer, alleging a hostile work environment and sexual disc rimination in violation of2

Title VII of the Civil Rights Act of 1964, 42 U.S.C . § 2000e-2(a)(1). The district court granted summary judgment to defendant on bothclaims, and plaintiff filed a timely appeal. We exercise jurisdiction pursuant t o 28 U.S.C. § 1291 and affirm.
I. ABC operates a facility in Tulsa, Oklahoma, which d istributes roofing, siding and window materials. Tutton began working for ABC in August 1993. She was hired to manage inventory control but also worked part-time in outside sales. In 1995, Tutton became a full-time salesper son with responsibility over her
own accounts. Tutton alleges that male ABC employees engaged in v arious forms of inappropriate behavior during 1995 and 1996. One A BC branch manager referred to Tutton as a “heifer” or a “barfly.” He also, on at least one occasion, made an off-color reference to prostitutes in her presence. Another male employee once dialed a pornographic telephone number and broadcas t the message over the company’s intercom system. The male employees usedthe restroom assigned to women despite objections from the female employees. A male employee also appeared one night at Tutton’s house uninvited. Onanother occasion, an ABC supervisor directed Tutton to continue an inventorycount even though she was feeling ill. Finally, Tutton discovered that her d esk had been rearranged and her chair lowered on numerous occasions.3

Tutton claims that male ABC employees also compromi sed her sales performance. An ABC manager did transfer a sales a ccount from Tutton to a male sales agent, but the manager transferred anoth er account to Tutton at the same time. Tutton also charges that delivery probl ems undermined her efforts on key accounts. She further claims that the branch m anager canceled lunch appointments with her while he kept appointments wi th male salespersons, evidencing a gender bias in his treatment of ABC st aff. Tutton’s sales for 1995 totaled approximately $604, 109. Her sales goal for 1996 was $1,500,000, which she confirmed in writing . Through May of 1996, Tutton’s sales amounted to approximately $285,813. Tutton acknowledges that the branch manager urged her at least once in 1996 to increase her sales. On June 11, ABC discharged Tutton, citing her poor sales pe rformance. After filing a charge of discrimination with the Equal Employment Opportunity Commission, Tutton brought suit in federal court, claiming viol ations of Title VII.
II. “We review the district court’s grant of summary j udgment de novo, applying the same legal standard used by the distri ct court.” Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Se rvs. , 165 F.3d 1321, 1326 (10th Cir.), cert. denied , 120 S. Ct. 53 (1999). Summary judgment is approp riate “if the pleadings, depositions, answers to interrog atories, and admissions on file,4

together with the affidavits, if any, show that the re 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). In applying this sta ndard, we examine the factual record and draw reasonable inferences therefrom in the light most favorable to the non-moving party. Penry v. Federal Home Loan Bank , 155 F.3d 1257, 1261 (10th Cir. 1998), cert. denied , 119 S. Ct. 1334 (1999).
A. Plaintiff first claims that ABC created a hostile w ork environment in violation of Title VII. To survive summary judgment on a hostile environment claim, a plaintiff “must show that a rational jury could find that the workplace is permeated with discriminatory intimidation, ridicul e, and insult, that is sufficiently severe or pervasive to alter the condi tions of the victim’s employment and create an abusive working environment.” Id . (internal quotation marks and citation omitted). Title VII does not proscribe co nduct “merely tinged with offensive sexual connotations.” Oncale v. Sundowne r Offshore Servs., Inc., 523 U.S. 75, 81 (1998). Consequently, in the context o f a hostile environment claim, courts must “filter out complaints attacking the or dinary tribulations of the workplace, such as the sporadic use of abusive lang uage, gender-related jokes, and occasional teasing.” Forager v. City of Boca Raton , 524 U.S. 775, 788 (1998) (internal quotation marks and citation omitt ed). Moreover, “[i]f the nature5

of an employee’s environment, however unpleasant, i s not due to her gender, she has not been the victim of sex discrimination.” Wi nsor v. Hinckley Dodge, Inc. , 79 F.3d 996, 1000 (10th Cir. 1996) (internal quotat ion marks and citation omitted). In dismissing Tutton’s hostile environment claim, the district court found no genuine issue of material fact suggesting that A BC’s male employees created a hostile work environment. We agree. We do not dou bt that Tutton found her workplace unpleasant at times. However, the indign ities she suffered were episodic and ambiguous and thus not sufficiently se vere or pervasive to alter the conditions of her employment. See Penry , 155 F.3d at 1260-63 (affirming a grant of summary judgment on hostile environment claims w here the plaintiffs’ supervisor (a) asked if women have “wet dreams,” (b ) complimented one plaintiff on her exposed bra strap, (c) made a double entendr e concerning a female assistant’s “drawers,” (d) asked one plaintiff whatshe was wearing under her dress, and (e) took one plaintiff to dine at Hooter s). The district court also recognized that, for the mo st part, the ABC employees did not appear to be motivated by gender animus. Nevertheless, the court properly considered all alleged incidents in its assessment of the work environment and dismissed plaintiff’s claim accordi ngly. Id. at 1262-63 (stating that a district court should examine the totality o f circumstances when ruling on6

summary judgment in a hostile environment case).
B. Plaintiff’s second claim is that ABC engaged in sexual discrimination in violation of Title VII. To establish a prima facie case of gender discrimination, Tutton must demonstrate that (1) she belonged to th e protected class, (2) she was adversely affected by her discharge from ABC, (3) s he was qualified for the sales position, and (4) she was treated less favorably th an her male counterparts. Cole v. Radios Mun. Sch. , 43 F.3d 1373, 1380 (10th Cir. 1994). If Tutton c an establish her prima facie case, then the burden shifts to ABC to offer a legitimate, nondiscriminatory reason for the discharge. See Morgan v. Hilti, Inc ., 108 F.3d 1319, 1324 (10th Cir. 1997) (ADA claim). If ABC pr ovides a facially nondiscriminatory explanation, then the burden reve rts to Tutton to show “a genuine dispute of material fact as to whether the employer’s proffered reason for the challenged action is pretextual -- i.e. , unworthy of belief. Demonstrating pretext gets plaintiff over the hurdle of summary j udgment.” Id. at 1323 (internal quotation marks and citations omitted). The district court, in its ruling from the bench, q uestioned whether Tutton had established her prima facie case and then proce eded to evaluate ABC’s proffered reason for the discharge, namely Tutton’s apparent inability to meet her sales goal. In its subsequent written order, the c ourt indicated that Tutton had not7

established her prima facie case. Nevertheless, th e court went on to find that no rational jury could conclude that ABC’s explanationfor the firing was pretextual. Given the nature of the district court’s findings, we will assume without deciding that Tutton has satisfied her prima facie case. See Bullington v. United Air Lines, Inc ., 186 F.3d 1301, 1316 & n.11 (10th Cir. 1999). AB C justified the discharge based on her poor sales performance. Tutton admits to her sales goal and to her subpar sales numbers. She does not alle ge that ABC set her goal any higher than the goals of other male agents. While we resolve all doubts in favor of Tutton, we agree with the district court that sh e did not clear the pretext hurdle. There is no evidence in the record that cr eates a genuine issue of material fact suggesting that ABC’s explanation was unworthyof belief.
AFFIRMED

. ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge