*

 This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicata and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

** The Honorable James O. Ellison, Senior District Judge for the Northern District

of Oklahoma, sitting by designation.

F I L E D

United States Court of Appeals

Tenth Circuit

AUG 2 2000

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________

E. STORMY APGAR,

Plaintiff-Appellant,

v.

STATE OF WYOMING; WYOMING

DEPARTMENT OF TRANSPORTATION

HIGHWAY PATROL; EVERETTE L.

AYERS; GARY L. MARSDEN; DAVID E.

FERGUSON; DAVID D. COLEMAN;

JAMES A. PUDGE; RICHARD

BURRIDGE; CARL E. CLEMENTS;

CASEY C. GOODMAN, as individuals,

Defendants-Appellees.

No. 99-8029

(D. Wyo.)

(D.Ct. No. 98-CV-068-D)

____________________________

ORDER AND JUDGMENT*

Before BRORBY, McWILLIAMS, Circuit Judges, and ELLISON,

** District

Judge.
1

 Given the procedural posture of this case, we will view the facts in the light most

favorable to Ms. Apgar, the nonmoving party at the summary judgment stage. See Wolf v.

Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir. 1995).

-2-

Former highway patrol officer E. Stormy Apgar sued the Wyoming

Highway Patrol and several officers in their individual capacities, claiming

gender discrimination, hostile work environment, retaliation for reporting

discriminatory conduct, breach of an implied employment contract, and

intentional infliction of emotional distress. The district court granted defendants’

summary judgment motion and dismissed all claims. This timely appeal followed. 

We exercise jurisdiction pursuant to 28 U.S.C. § 1291. After a thorough review

of the briefs and record on appeal, we affirm in part, reverse in part and remand

for further consideration.

I. BACKGROUND1

Ms. Apgar first worked for the Wyoming Highway Patrol (Patrol) in the

1980s, resigning May 13, 1990 to pursue employment opportunities in Montana. 

At the conclusion of this first employment period, Ms. Apgar’s supervisor gave

her a mostly positive performance review and recommended she receive a

favorable rating should she ever wish to return to the Patrol. Ms. Apgar did

express an interest in returning to the Patrol, which led to her second period of
-3-

employment beginning in January 1994. The Patrol assigned Ms. Apgar to

Division C (id. at 288), where her supervisors included three of the named

defendants in this suit: Sergeant James A. Pudge, Lieutenant David D. Coleman,

and Captain David E. Ferguson Ms. Apgar was the first female patrolman to serve

in Division C.

Ms. Apgar described herself as “thrilled” and happy to be back with the

Patrol and stationed with Division C. Unfortunately, some of her co-workers did

not share her enthusiasm for her new posting. Almost immediately Ms. Apgar

began experiencing hostile behavior that would later form the basis of her

complaint in this lawsuit. We now examine this allegedly discriminatory conduct.

Lieutenant Coleman told Ms. Apgar on her first day some people were not

happy with her assignment to the division. Ms. Apgar quickly learned one of the

patrolmen who was unhappy with her arrival was Carl Clements. Patrolman

Clements was assigned to oversee Ms. Apgar’s field training in Division C. Ms.

Apgar felt Patrolman Clements was unsupportive from the beginning and hoped

she would fail. After filing the current lawsuit, Ms. Apgar learned Patrolman

Clements once told other officers at a training meeting women did not belong in

law enforcement. Prior to Ms. Apgar’s arrival at Division C, Patrolman Clements
-4-

also wondered aloud what she had done to receive the assignment.

During field training, Patrolman Clements apparently made two rude

comments. When a citizen asked Patrolman Clements who was in his patrol car,

he described Ms. Apgar as a drunk female he arrested. He also told a resident of

Sheridan, Wyoming, who asked about Ms. Apgar, not to worry about having to

deal with her because she would be based in the neighboring city of Buffalo. 

Patrolman Clements was originally assigned as Ms. Apgar’s shift partner;

however, Lieutenant Coleman and Sergeant Pudge eventually gave that

assignment to Patrolman Joe Arzy instead, explaining to Patrolman Arzy some of

the other patrolmen in the division did not want to work with Ms. Apgar.

The working relationship between Ms. Apgar and Patrolman Clements did

not improve after the training period. Ms. Apgar felt Patrolman Clements was

openly hostile toward her on the firing range, refusing to answer her questions

and berating her for being late in front of other officers – an approach she claims

he did not take with others in the division. In addition, Ms. Apgar and Patrolman

Clements became embroiled in a controversy over how officers of the highway

patrol should be identified in official publications. Patrolman Clements pushed

the Wyoming Highway Patrol Association to adopt a policy of using the official
-5-

ranks of officers, which in the case of the rank and file officers would be

“Patrolman.” Ms. Apgar wrote a letter to the Association opposed to the policy

and successfully lobbied to allow officers to use the unofficial title “Trooper” if

so desired.

Ms. Apgar also had problems with other officers in the division. Shortly

after Ms. Apgar arrived at Division C, Patrolman Casey C. Goodman refused to

take tickets written by Ms. Apgar to court as was the usual practice because Ms.

Apgar put a “smiley face” at the bottom of a note attached to the tickets. 

Patrolman Arzy recalls having to take the tickets to court himself and Patrolman

Goodman later directing him to tell Ms. Apgar “real patrolmen don’t put ‘smiley

faces’ on things.” Ms. Apgar responded with a sarcastic letter addressed to

Patrolman Clements, whom she believed had made the comment.

To make matters worse, Ms. Apgar’s interactions with Sergeant Pudge were

terse and unfriendly. Ms. Apgar sensed Sergeant Pudge was uncomfortable

around her, a hunch Sergeant Pudge confirmed in his deposition. Sergeant Pudge

felt uncomfortable because in his opinion Ms. Apgar did not take criticism or

suggestions well, a trait he told Lieutenant Coleman reminded him of his ex-wife. 

In addition, Sergeant Pudge did not ride with Ms. Apgar as often as he should
-6-

have and provided her first performance review in a public place with another

patrolman present. Other co-workers gave Ms. Apgar an equally cool reception. 

For instance, Ms. Apgar claims other officers would pass her on the street or

highway and refuse to acknowledge her either by gesture or verbally over the

radio. She also claims she was regularly excluded from “coffee meetings” with

other officers.

Ms. Apgar did develop a good relationship with her shift partner, Patrolman

Arzy, but unfortunately the strength of their professional relationship led to

unfounded rumors within the local law enforcement community the two were

involved in an amorous affair, and inappropriate comments from a Department of

Transportation mechanic making the same inference. Eventually Lieutenant

Coleman and Sergeant Pudge became aware of the rumors, and in order to put an

end to the gossip, decided to split up the shift partners by reassigning Patrolman

Arzy to a different shift.

Ms. Apgar viewed Patrolman Arzy’s shift change as the last straw, and as a

result sent a letter, running over nine single-spaced pages, to the head of the

Patrol, Colonel Everette Ayers. In the letter, Ms. Apgar detailed the behavior she

found objectionable, claimed she was being discriminated against based on her
-7-

gender, and asked Colonel Ayers to rectify the situation. Colonel Ayers assigned

Major Gary Marsden to investigate Ms. Apgar’s complaint, a task Major Marsden

completed by delivering a written report to Colonel Ayers in March 1995, less

than two months after Ms. Apgar wrote her letter to Colonel Ayers.

Major Marsden’s investigation confirmed the occurrence of several of the

events listed above, found a general feeling of “uneasiness and apprehension”

between Ms. Apgar and some of her co-workers, and discovered a problem with

Sergeant Pudge’s supervisory techniques. Major Marsden concluded Sergeant

Pudge’s shortcomings were directed at all members of the division, not solely

toward Ms. Apgar, and many of the problems could be traced to a lack of

communication within the division. The written report concluded by stating Ms.

Apgar’s complaints were raised with her supervisors, positive changes were made

in the supervisory approach, and all parties agreed some professional courtesy

could provide a remedy and improve the workplace atmosphere. In addition to

the operational changes made in the division, Patrolman Arzy was restored to his

previous shift and again became Ms. Apgar’s shift partner.

Unfortunately, the return of her shift partner was the only positive

development to come out of Ms. Apgar’s grievance letter. Her supervisors and
-8-

co-workers were not pleased with the accusations in her letter or in the way it was

presented outside the normal chain of command. For instance, Captain Ferguson

traveled to Buffalo to meet with Ms. Apgar and express his disappointment she

had not raised her concerns with him personally prior to notifying the Colonel. 

Lieutenant Coleman agreed he felt “betrayed” and “miffed” that Ms. Apgar had

“gone over [his] head,” and described his relationship with Ms. Apgar as

“frostier” after the letter was sent.. Sergeant Pudge described the letter as

disruptive. Captain Ferguson did meet with Patrolmen Clements, Goodman, and

Burridge to extract assurances they would make an effort to develop a better

working relationship with Ms. Apgar, and several meetings were scheduled

between Ms. Apgar and her co-workers to accomplish this goal. However, Ms.

Apgar decided to stop attending the meetings, and her situation with her coworkers did not improve.

In Ms. Apgar’s view, the tension within Division C culminated in Sergeant

Pudge’s failure to provide her adequate backup while she searched for two

escapees from the Wyoming Boys’ School. Ms. Apgar first learned of the escape

the early morning of July, 24, 1995, and she located and arrested the escapees at

approximately 3:00 p.m. that same afternoon. Ms. Apgar and Patrolman Arzy

apparently asked Sergeant Pudge if Patrolman Arzy could join Ms. Apgar at
-9-

several points during the day-long search. Sergeant Pudge repeatedly refused to

allow the two patrolmen to work together, preferring the broader coverage of

having them patrol separate areas. Finally, as Ms. Apgar located the escapees, a

patrolman from an adjoining division directed the dispatcher to send backup, and

Patrolman Burridge headed toward Ms. Apgar’s position. Ms. Apgar asked

Patrolman Burridge to assist by setting up a roadblock; however, she stopped the

suspects prior to reaching his position. After approaching the vehicle and

confirming the identity of the suspects, Ms. Apgar told the driver she was giving

him a warning, she returned to her vehicle to request backup, and Patrolman

Burridge arrived to help Ms. Apgar with the actual arrest of the suspects. At

some point when the dispatcher informed Sergeant Pudge Ms. Apgar requested

backup, Sergeant Pudge made what the dispatcher termed a “sarcastic and smart

alecky” remark to the effect he would pretend to back her up from Sheridan. 

While Sergeant Pudge disputed Ms. Apgar’s account, a tape of the day’s events

normally kept at the dispatch center came up missing. The Wyoming Division of

Criminal Investigation conducted an extensive investigation of this incident and

determined no criminal activity contributed to the disappearance of the tape and

backup was not intentionally withheld from Ms. Apgar.

Ms. Apgar started to feel her life was in danger due to the lack of support
2

 Ms. Apgar waives the breach of contract claim on appeal because she did not

raise the issue in her opening brief. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d

979, 984 n.7 (10th Cir. 1994).

-10-

from her fellow patrolmen. After her shift partner Patrolman Arzy was fired, Ms.

Apgar began to suspect her supervisors were “trying to get rid” of her, and

looking for any excuse to fire her. Ms. Apgar claimed the constant stress of

working under such conditions impacted her ability to perform her job. 

Ultimately, Ms. Apgar filed a Charge of Discrimination with the Equal

Employment Opportunity Commission and the appropriate state agency on March

5, 1996. Four months later Ms. Apgar officially resigned from the Wyoming

Highway Patrol effective July 10, 1996.

Ms. Apgar filed the current lawsuit on March 20, 1998, raising claims of

disparate treatment based on her gender, hostile work environment sexual

harassment, retaliation for engaging in a protected activity, breach of contract,2

and intentional infliction of emotional distress. Ms. Apgar also sued the

individual defendants under 42 U.S.C. § 1983, claiming their actions violated her

right to equal protection under the law. The district court granted the defendants’

motion for summary judgment, finding the behavior directed at Ms. Apgar may

have been unprofessional, but it was not motivated by her gender and lacked the

pervasiveness or severity to form the basis of a hostile environment claim. The
-11-

district court also determined there was no adverse employment action on which

to base the retaliation and disparate treatment claims, and found a dearth of

evidence in support of the § 1983 and state claims.

II. DISCUSSION

We review the grant of a motion for summary judgment de novo, applying

the same legal standard as the district court. See Wolf, 50 F.3d at 796. We have

often pointed out summary judgment is proper when “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 movant for summary judgment must meet the initial burden of showing the

absence of a genuine issue of material fact, then the nonmovant bears the burden

of pointing to specific facts in the record “showing a genuine issue for trial as to

those dispositive matters for which it carries the burden of proof.” Wolf, 50 F.3d

at 796. As stated earlier, when reviewing the grant of summary judgment we

must examine the facts and any reasonable inferences therefrom in the light most

favorable to the nonmoving party. Id.
3

 The Patrol does not dispute Ms. Apgar’s subjective perception of her

environment as hostile, therefore we focus solely on the objective part of the test.

-12-

A. Hostile Work Environment

Title VII makes it unlawful for an employer to discriminate against any

individual with respect to her terms or privileges of employment because of her

sex. See 42 U.S.C. § 2000e-2(a)(1). Ms. Apgar relies on two theories to show a

Title VII violation: disparate treatment and hostile work environment. To

survive summary judgment on the hostile environment claim, Ms. Apgar “‘must

show that a rational jury could find that the workplace is permeated with

discriminatory intimidation, ridicule, and insult, that is sufficiently severe or

pervasive to alter the conditions of the victim's employment and create an abusive

working environment.’” Penry v. Federal Home Loan Bank, 155 F.3d 1257, 1261

(10th Cir. 1998) (quoting Davis v. United States Postal Serv., 142 F.3d 1334,

1341 (10th Cir. 1998)), cert. denied, 526 U.S. 1039 (1999). Ms. Apgar must not

only show she subjectively perceived the environment as hostile or abusive, but

that her perception was objectively reasonable.3 Davis, 142 F.3d at 1341. In

order to determine whether an environment is hostile or abusive we look at a

myriad of factors, including “the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an employee’s work
-13-

performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). When

reviewing a hostile environment claim on summary judgment, courts must look to

the totality of the circumstances, and avoid the temptation to view allegedly

discriminatory conduct in isolation. Penry, 155 F.3d at 1262.

The district court identified the aforementioned standards, examined the

totality of the circumstances, and determined Ms. Apgar failed to point to

sufficiently severe or pervasive hostility based on Ms. Apgar’s gender to alter the

conditions of her employment. Because we conclude Ms. Apgar has presented

genuine issues of material fact on this issue, we disagree.

We begin by noting none of the allegedly discriminatory incidents involved

the boorish conduct of inappropriate touching, leering, or sexual language

commonly found in hostile environment claims. This fortunate fact is not fatal to

Ms. Apgar’s claims because actionable conduct in the Title VII realm “is not

limited to behavior motivated by sexual desire.” Id. at 1261 (citing Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). However, Ms. Apgar

must still “produce evidence that she was the object of harassment because of her

gender.” Id.
-14-

The district court correctly noted the vast majority of the day-to-day events

Ms. Apgar points to as discriminatory were gender neutral on their face, such as

the failure to invite her to coffee breaks, not waving to her on the street, or the

lack of normal conversation on the radio. The same can be said of Patrolman

Goodman’s “smiley face” comment and Sergeant Pudge’s refusal to allow

Patrolman Arzy to search for the escapees with Ms. Apgar. Having said that, it is

important to point out “[f]acially neutral abusive conduct can support a finding

of gender animus sufficient to sustain a hostile work environment claim when

that conduct is viewed in the context of other, overtly gender-discriminatory

conduct.” O’Shea v. Yellow Tech. Servs., Inc. , 185 F.3d 1093, 1097 (10th Cir.

1999).

The district court found four incidents could be reasonably viewed as based

on gender: (1) the rumor of an affair between Ms. Apgar and Patrolman Arzy; (2)

Sergeant Pudge’s admission he was uncomfortable around Ms. Apgar because she

reminded him of his ex-wife; (3) Patrolman Clements’ comments to the effect

women did not belong in law enforcement; and (4) the “trooper” or “patrolman”

debate waged between Ms. Apgar and Patrolman Clements. We add to this list

Patrolman Clements’ ponderings on what Ms. Apgar had to do to get assigned to

Division C in Buffalo.
-15-

We concede at the outset this is a close case. The gender-based conduct

laid out above does not appear particularly severe or pervasive when viewed in

isolation and compared to the blatantly inappropriate behavior found in many

hostile environment cases. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 60, 68

(1986) (unwelcome sexual advances); Davis, 142 F.3d at 1341 (unwelcome

hugging and kissing); Smith v. Northwest Fin. Acceptance, Inc., 129 F.3d 1408,

1413-14 (10th Cir. 1997) (disparaging sexual remarks). However, as stated

earlier, we must not view these events in isolation. Penry, 155 F.3d at 1262. As

part of our review of the totality of the circumstances, we pay particular attention

to “the setting and context in which the discriminatory behavior occurred.” 

Smith, 129 F.3d at 1414. “Speech that might be offensive or unacceptable in a

prep school faculty meeting, or on the floor of Congress, is tolerated in other

work environments.” Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1538 (10th

Cir. 1995). The same can be said for conduct. Therefore, we must evaluate the

evidence presented in the context of Ms. Apgar’s unique work environment –

patrolling the nation’s highways as a law enforcement officer. See id. at 1537-38. 

When viewed from this perspective, we hold a reasonable jury could infer Ms.

Apgar’s co-workers and superiors made her work environment a hostile one
4

 We note the Patrol did not ignore Ms. Apgar’s complaints. Efforts were made to

bring some civility to the division. Whether the Patrol can be held liable for the actions

of its employees depends on whether these efforts stopped the harassment, or were

reasonably calculated to do so. See Baty v. Willamette Indus., Inc., 172 F.3d 1232, 1241-

43 (10th Cir. 1999). We make no determination of the reasonableness of the Patrol’s

response because the district court did not address this issue in its decision.

-16-

because she was a woman.4

Reviewing the evidence in the light most favorable to Ms. Apgar, we know

Ms. Apgar walked into a less-than-favorable situation at Division C. Her direct

supervisors told Ms. Apgar some of her co-workers were unhappy with her arrival

her very first day on the job. The same supervisors changed her shift partner

because other officers did not want to work with her. The supervisors told

Patrolman Arzy the situation was “a delicate one,” and asked him to keep them

posted and keep an open mind. Considering Ms. Apgar’s previous positive stint

with the Patrol, it is reasonable to infer the concern within the division was based

on gender animus. Patrolman Clements’ belief women do not belong in law

enforcement, his comments that he wondered what Ms. Apgar had done to get the

assignment in Buffalo, and his insistence members of the Patrol should be

identified by the title “Patrolman,” and not “Trooper,” only buttress the inference.

Once Ms. Apgar began her assignment she was ostracized on a daily basis. 
-17-

Patrolman Clements was not supportive during Ms. Apgar’s field training, and he

later treated her poorly at the rifle range. Sergeant Pudge refused to ride with Ms.

Apgar, was obviously uncomfortable around her, and was unresponsive to her

questions. Ms. Apgar’s co-workers did not invite her to coffee, ignored her

comments on the radio, and passed her on the highway without waiving or

otherwise acknowledging her. While we would have a difficult time

characterizing this kind of “silent treatment” as severe and pervasive harassment

in an office setting, but see O’Shea, 185 F.3d at 1101-02, the behavior takes on an

entirely different meaning in the law enforcement context. Law enforcement

officers must rely on their fellow officers while on duty – their lives literally

depend on it. Given the constant threat of danger which accompanies this job,

and the reliance on one’s co-workers that necessarily goes with it, we think a

reasonable person in Ms. Apgar’s position could perceive the environment as

hostile. This is especially true when considered in light of what Ms. Apgar

describes as the failure to back her up during her search for the escapees.

On appeal, the Patrol tries to downplay this event by pointing out Patrolman

Burridge did provide backup prior to the actual arrest of the suspects. However,

Patrolman Gordon Herring, the patrolman assigned to Division B who eventually

ordered dispatch to send Patrolman Burridge to Ms. Apgar’s position, stated he
-18-

was “flabbergasted that patrolmen from Division C were doing their normal duties

and routine traffic stops instead of going to Apgar’s location to provide back up

[sic].” Patrolman Herring thought Ms. Apgar’s co-workers had “left her out to

dry.” Tina Grimes, the dispatcher on duty that day, was so concerned by Sergeant

Pudge’s actions she told her supervisor to pull the tape of the events because she

felt something would be “coming out of what occurred.” Clearly Ms. Apgar was

not the only person troubled by her treatment prior to the actual apprehension of

the suspects.

Finally, when Ms. Apgar did develop a positive working relationship with

her shift partner, she faced rumors of an adulterous affair, and her supervisors

moved her partner to a different shift. While the district court correctly pointed

out the rumors impacted both Patrolman Arzy and Ms. Apgar, which limits the

inference the rumors were gender-motivated, the rumors were relevant to show

the overall environment in which Ms. Apgar worked. Given the totality of the

circumstances, we hold summary judgment was inappropriate on this claim. 

Although like the district court we have reservations concerning Ms. Apgar’s

chances in prevailing on the merits in this case, that is not for us to decide. Ms.

Apgar raises disputed questions of material fact. It is for the jury to resolve these

issues. We therefore reverse and remand for that purpose.
-19-

B. Disparate Treatment

The analysis for a disparate treatment claim, which requires proof of

discriminatory intent or motive, differs from the hostile environment claim and is

governed by the well-known McDonnell Douglas framework. See Bullington v.

United Air Lines, Inc., 186 F.3d 1301, 1315 (10th Cir. 1999) (referring to the test

set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). Under this

framework, Ms. Apgar 

has the initial burden of establishing a prima facie case of

discrimination .... If she establishes a prima facie case, the burden

shifts to [the defendants] to articulate a legitimate, nondiscriminatory

reason for the adverse employment decision. If [the defendants]

offer[] a legitimate, nondiscriminatory reason for [their] actions, the

burden reverts to Ms. [Apgar] to show [the] proffered reason was a

pretext for discrimination.

Bullington, 186 F.3d at 1315-16 (citations omitted). In order to establish a prima

facie case under Title VII, Ms. Apgar must show: “(1) she is a member of the

class protected by the statute; (2) she suffered an adverse employment action; (3)

she was qualified for the position at issue; and (4) she was treated less favorably

than others not in the protected class.” Id. (quotation marks and citation omitted). 

The second and fourth inquiries are at issue in this case. The district court found

Ms. Apgar did not establish a prima facie case of discrimination because she

failed to show she suffered an adverse employment action. We disagree, but

affirm because Ms. Apgar’s response to the summary judgment motion did not
5

 We can affirm the district court on any ground for which there is a sufficient

record. See Medina v. City & County of Denver, 960 F.2d 1493, 1495 n.1 (10th Cir.

1992).

-20-

contain a cite to evidence in the record tending to show unequal treatment.5

The only adverse employment action Ms. Apgar claims to have suffered for

purposes of her disparate treatment claim is her constructive discharge from the

Patrol. We have recognized constructive discharge can be a cognizable claim

under Title VII. See Thomas v. Denny’s, Inc., 111 F.3d 1506, 1514 (10th Cir.),

cert. denied, 522 U.S. 1028 (1997). “In order to make out a constructive

discharge claim, Ms. [Apgar] must allege facts sufficient to demonstrate under an

objective test that a reasonable person would have viewed her working conditions

as intolerable.” Jeffries v. Kansas, 147 F.3d 1220, 1233 (10th Cir. 1998). “That

is to say the working conditions, when viewed objectively, must be so difficult

that a reasonable person would feel compelled to resign.... Essentially, a plaintiff

must show that she had no other choice but to quit.” Yearous v. Niobrara County

Mem’l Hosp., 128 F.3d 1351, 1356 (10th Cir. 1997) (quotation marks and

citations omitted), cert. denied, 523 U.S. 1074 (1998).

Prior to Ms. Apgar’s resignation an officer from Division J in Laramie
-21-

contacted her and asked her to transfer to his division. Ms. Apgar decided not to

take advantage of this lateral transfer because her husband would have had to quit

two jobs he enjoyed, and she felt her mistreatment had already reached the highest

ranks of the Patrol. The district court determined Ms. Apgar’s refusal to request

this transfer foreclosed her claim of constructive discharge. We can find no

support for this conclusion in the case law, nor did the district court cite any in its

decision. This is not a case of corporate restructuring where several employees

were offered a transfer in lieu of termination. See Gartman v. Gencorp Inc., 120

F.3d 127 (8th Cir. 1997). We hardly think it a tolerable work condition, under the

facts of this case, to expect Ms. Apgar to pick up her family and move hundreds

of miles in order to avoid discriminatory conduct. Such a result would effectively

punish the victim for experiencing discrimination.

As we indicated earlier, this case is not a particularly strong one. “We have

considerable doubt whether the [ostracism that Ms. Apgar faced was] ... so severe

and intolerable that a reasonable person would have no alternative except to

resign.... [T]hese are not matters to be decided on summary judgment.” 

Woodward v. City of Worland, 977 F.2d 1392, 1402 (10th Cir. 1992), cert. denied,

509 U.S. 923 (1993). Whether the conduct in question constituted constructive

discharge is a question of material fact which should be decided by a jury.
-22-

Ms. Apgar’s disparate treatment claim fails despite our view of her claim of

constructive discharge because her response to the summary judgment motion was

entirely inadequate. As the nonmovant, Ms. Apgar was required to identify

specific facts, through affidavits, depositions, or exhibits, from which a rational

trier of fact could find in her favor. See Adler v. Wal-Mart Stores, Inc., 144 F.3d

664, 671 (10th Cir. 1998). In her response, Ms. Apgar stated the Patrol argued

her disparate treatment claim was flawed because she failed to show she was

treated differently than men in her division. Yet her response on this issue was

limited to one conclusory statement claiming “[t]here are factual disputes over

whether ... she was treated less favorably than her male counterparts.” The

response was completely void of cites to the record tending to show disparate

treatment. Neither the district court, or this Court on appeal, is obligated to comb

the record in order to make Ms. Apgar’s arguments for her. “The district court

has discretion to go beyond the referenced portions of these materials, but is not

required to do so. If the rule were otherwise, the workload of the district courts

would be insurmountable and summary judgment would rarely be granted.” 

Adler, 144 F.3d at 672 (citation omitted). Ms. Apgar failed to meet her burden of

presenting specific facts, by reference to affidavits, depositions, or exhibits in the
6

 We make this determination having fully considered the evidence of genderspecific conduct discussed earlier in this opinion.

-23-

record, to overcome the motion for summary judgment.

6

 Therefore we affirm the

district court’s grant of summary judgment on the disparate treatment claim.

C. Section 1983

Ms. Apgar also brought a § 1983 claim against the individual defendants

named in her suit. The district court mischaracterized Ms. Apgar’s § 1983 claim

as one for constructive discharge, and failed to address the qualified immunity

defense raised by the defendants. Given the quality of the summary judgment

motions on both sides of this lawsuit, we are not surprised the district court was

led astray. We remand the § 1983 claims because the district court did not

address the claims in its decision. As a short guideline, we note § 1983 provides

a cause of action against individuals who, acting under color of state law, violate

a person’s constitutional rights:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the District

of Columbia, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding for redress ....

42 U.S.C. § 1983. We have held sexual harassment and discrimination can result
-24-

in a violation of the Fourteenth Amendment right to equal protection of the law. 

See Starrett v. Wadley, 876 F.2d 808, 814 (10th Cir. 1989). “[H]owever, ... in

order to establish the state action necessary to support a § 1983 claim, [each

individual defendant] had to be [Ms. Apgar’s] supervisor or in some other way

exercise state authority over her.” Noland v. McAdoo, 39 F.3d 269, 271 (10th Cir.

1994); see also David v. City & County of Denver, 101 F.3d 1344, 1354 (10th Cir.

1996) (co-employees may act under color of law if they exercise de facto

authority over victim), cert. denied, 522 U.S. 858 (1997). State action can occur

when a supervisor “participates in or consciously acquiesces in sexual harassment

... by co-workers.” Murrell v. School Dist. No. 1, 186 F.3d 1238, 1250 (10th Cir.

1999) (quotation marks and citation omitted). If the defendants who meet this

initial criteria raise the defense of qualified immunity, plaintiffs are obligated to

“show that the law was clearly established when the alleged violation occurred

and come forward with facts or allegations sufficient to show that the official

violated the clearly established law.” Woodward, 977 F.2d at 1396. Should the

district court determine Ms. Apgar made this showing, summary judgment would

be inappropriate.

D. Retaliation

The McDonnell Douglas framework applies to the Title VII retaliation
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claims just as it does to the disparate treatment claim disposed of earlier. See

Jeffries, 147 F.3d at 1231. Therefore, Ms. Apgar was first required to make out a

prima facie case, which in the instance of retaliation consists of showing: “(1)

protected opposition to discrimination or participation in a proceeding arising out

of discrimination; (2) adverse action by the employer; and (3) a causal connection

between the protected activity and the adverse action.” Id. (quotation marks and

citation omitted). “A plaintiff may maintain an action for retaliation based on

participation in a protected proceeding regardless of whether the conduct forming

the basis of her underlying complaint is adjudged to violate Title VII.” Id. The

district court concluded Ms. Apgar failed to establish an adverse employment

action and granted summary judgment to the defendants. We must disagree and

reverse.

The district court correctly stated we liberally interpret what constitutes an

“adverse employment action.” See Gunnell v. Utah Valley State College, 152

F.3d 1253, 1264 (10th Cir. 1998). In Gunnell, we went so far as to state “coworker hostility or retaliatory harassment, if sufficiently severe, may constitute

‘adverse employment action’ for purposes of a retaliation claim.” Id. We do not

find fault with the district court’s conclusion Ms. Apgar failed to show her

perceived mistreatment at the hands of her co-workers was sufficiently severe to
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constitute an adverse employment action for retaliation purposes. However, we

do disagree with the district court’s finding Ms. Apgar’s employment status was

not altered in retaliation for her protected activity.

As stated earlier, we disagree with the district court’s determination the

necessary adverse employment action could not come from a constructive

discharge of Ms. Apgar. Such a decision is for the jury. We also hold an

additional avenue exists to possibly show Ms. Apgar’s employment status was

altered. Following Ms. Apgar’s resignation, Captain Ferguson, with input from

Lieutenant Coleman and Sergeant Pudge, prepared a final report concluding Ms.

Apgar should not be considered for rehire with the Patrol because of her

“negative attitude.” In the report, Captain Ferguson described Ms. Apgar as

“disruptive to the Division. Tended to be a complainer. She was negative in her

views of the Highway Patrol and was constantly attempting to undermine her

supervisors.” Later in the report he states Ms. Apgar “had problems getting along

with some of her co-workers. She did not get along with her chain of command.

[She] was not happy with the way she was supervised, specifically, she did not

accept criticism well.” Given our liberal interpretation of “adverse employment

action,” and our past willingness to hold “an adverse employment action can arise

from events having an adverse impact on future employment opportunities,” see
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Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996), we hold the

negative final report constitutes an adverse employment action.

Having determined Ms. Apgar suffered an adverse employment action, we

must now turn to the third part of the prima facie case: whether she showed a

causal connection between her protected activity and the adverse employment

action. This prong is usually met by showing a temporal proximity between the

two events. Cf. Bullington, 186 F.3d at 1320. However, in the case of the final

report, we have direct evidence in the record, when read with every reasonable

inference in the light most favorable to Ms. Apgar, which supports a direct causal

connection. Specifically, Sergeant Pudge stated in his deposition, when asked if

he agreed with the assessment of Ms. Apgar as disruptive to the division, “[w]ell,

yes, sir.... The first letter that she wrote to Colonel Ayers kind of disrupted any

harmony that was here.” Captain Ferguson’s deposition confirms in preparing the

final report he adopted Sergeant Pudge’s assessment of Ms. Apgar as disruptive

because she wrote the letter to Colonel Ayers. Based on the limited record before

us, we conclude Ms. Apgar did establish a prima facie case of retaliation. 

Because the Patrol has not so much as attempted to articulate a legitimate,

nonretaliatory reason for the adverse employment action as required under the

McDonnell Douglas framework, a genuine issue of material fact exists for trial as
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to whether the negative final report, or Ms. Apgar’s possible constructive

discharge, came in retaliation for Ms. Apgar’s complaints to Colonel Ayers and

the Equal Employment Opportunity Commission.

E. Intentional Infliction of Emotional Distress

Wyoming has adopted the tort of intentional infliction of emotional distress

as articulated in the Restatement (Second) of Torts § 46. See Kanzler v. Renner,

937 P.2d 1337, 1341 (Wyo. 1997).

To recover for intentional infliction of emotional distress, a plaintiff

must prove that the defendant's conduct was extreme and outrageous

and that the defendant intentionally or recklessly caused the plaintiff

to suffer severe emotional harm. When presented with a motion for

summary judgment, the court, as a matter of law, makes preliminary

determinations regarding the outrageousness of the conduct and the

severity of the emotional distress.

Id. (citation omitted). Under this scheme, “[o]utrageous conduct is defined as

conduct which goes ‘beyond all possible bounds of decency,’ and which is

‘regarded as atrocious, and utterly intolerable in a civilized community.’” Id.

(quoting Restatement (Second) of Torts § 46 cmt. d). The record before us is

void of any conduct which could be deemed “outrageous” under this stringent

standard. “[L]iability clearly does not extend to mere insults, indignities, threats,

annoyances, petty oppressions, or other trivialities.” Restatement (Second) of

Torts § 46 cmt. d. We affirm the district court’s grant of summary judgment on
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this issue.

III. Conclusion

Having thoroughly reviewed the briefs of the parties and the record on

appeal, we hold material facts are in dispute as to certain claims, which precludes

the award of summary judgment in toto. We AFFIRM the grant of summary

judgment on the state law claims and the disparate treatment claim. However, as

to the hostile environment claim, the § 1983 claims, and the retaliation claim, we

must REVERSE and REMAND for further proceedings consistent with this

opinion.

Entered by the Court:

WADE BRORBY

United States Circuit Judge