*This order and judgment is not binding precedent, except under the doctrines of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

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

### FEB 3 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GINA F. MYERS, Plaintiff-Appellant,

v. LeFLORE COUNTY BOARD OF COMMISSIONERS, also known as Board of County Commissioners of LeFlore County, Oklahoma, Defendant-Appellee. No. 96-7127 (D.C. No. 96-CV-188) (E.D. Okla.)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, EBEL , andBRISCOE , Circuit Judges.

Plaintiff Gina Myers appeals the district court’s g rant of summary judgment in favor of defendant LeFlore County Board of Commi ssioners on her claims under Title VII and the Equal Pay Act of 1963 for s exual harassment, sexual discrimination, retaliation, and unequal pay. We e xercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.-2-

Myers was hired in April 1994 as a truck driver forLeFlore County. Her immediate supervisor was Leonard “Butch” Steelman, but Freddie Cox, county commissioner for District 3 in LeFlore County, had ultimate supervisory authority over all county employees. Myers’ employment was t erminated on September 8, 1995, and she filed this action against the Board. We review the district court’s grant of summary jud gment de novo, applying the same standard used by the district cou rt under Fed. R. Civ. P. 56(c). V-1 Oil Co. v. Means , 94 F.3d 1420, 1422 (10th Cir. 1996). Summary jud gment is appropriate only “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 ).

Sexual harassment Myers’ allegations of sexual harassment focus primarily on various acts committed by Clinton Huckaby, an equipment operatorfor the county. Huckaby started to appear uninvited at Myers’ home in July or August 1994, and he visited her home ten to twelve times during Myers’ tenure w ith the county. On one occasion, he allegedly tried to grab and kiss her, but she pushed him away, telling him he was a married man. Myers did not tell Cox o r Steelman about Huckaby’s-3-

visits to her home. In 1994, Myers found a birthday card on the windshield of her truck signed “Super Jerk,” with a small drawing of a hand with the middle finger sticking up on the card. “Super Jerk” was the name Myers regularly called Huckaby. Sometime in 1994, Myers was working alone with Huckaby in a truck when he reached over and tried to touch her. On an other occasion, sometime around Christmas 1994, Myers agreed to ride with Hu ckaby (apparently during working hours) to look at a piece of land he was co nsidering purchasing. During the trip, Huckaby stopped the truck and kissed Myer s. Myers did not report these incidents to Cox or to Steelman. Myers was sitting with a coworker, Sam Hall, in the break room in February 1995 when Huckaby walked in and slapped he r in the face with his open palm. Huckaby admitted he slapped Myers, but claim ed it was a continuation of mutual teasing earlier in the day and was in respon se to Myers “flipping him off” under the table in the break room when he entered t he room. Myers reported this incident to Cox, who initially suspended Huckaby fo r one week, but Huckaby alleges Cox ultimately reduced the suspension to tw o days. At least two other incidents of physical touching occurred on the partof Huckaby during Myers’ tenure. On one occasion, Huckaby slapped Myers on the buttocks in the break room, and on another occasion, he grabbed her by th e upper portion of her arm while they were in the break room. There is no evi dence these incidents were-4-

reported to Steelman or to Cox. On or about September 7, 1995, while they were at w ork, Huckaby told Myers: “You know, there’s no need for you to be lo nely. Any time you want to get together, you just let me know.” Myers respond ed: “Well, I wouldn’t hold my breath.” Appellant’s App. I at 87. Myers spoke to Cox on or about September 7, 1995, about Huckaby allegedly telling her he wanted the truck she had been driving (which he had initially driven whe n it was purchased). In response Cox said: “Well, it’s a pecking order kin d of thing.” Id. at 97-98. In granting summary judgment in favor of defendant on Myers’ claim of sexual harassment, the district court concluded the evidence was insufficient, as a matter of law, to demonstrate a hostile work enviro nment, that Myers had failed to present evidence demonstrating defendant knew orshould have known of the harassment, and there was no basis for holding defe ndant liable for the alleged acts. Myers asserts an extremely vague argument on appeal--”There is evidence of discrimination against [Myers] sufficient to sub mit this action to a jury.” Appellant’s Br. at 7. In support of her argument, Myers outlines the various actions she believes constituted sexual harassment (thus appearing to challenge the court’s conclusion that the alleged harassment was insufficient to be actionable), but fails to discuss what evidence in the record, if any, would support liability on the part of defendant. Although she c ontends many of Huckaby’s1 In her deposition, Myers testified she thought she reported other harassment to

Cox, but she could not remember when she did so or what she may have reported. -5- actions were “brought to management’s attention,” t his contention is not supported by the record. It is uncontroverted thatMyers reported Huckaby had slapped her in the break room. However, there is n o concrete evidence that Myers ever reported any of the other incidents. 1 Moreover, Myers does not discuss any theories of employer liability she thinks should ap ply in this case. In light of the deficiencies in Myers’ appellate br ief, we seriously question whether she has challenged the district court’s con clusion that there is no basis for employer liability. Even assuming, arguendo, t hat Myers has adequately challenged this aspect of the court’s decision, a r eview of the record indicates the court’s conclusion on this point is correct. Becau se all of the alleged harassment was committed by one of Myers’ coworkers, the only viable basis for employer liability is the negligence standard set out in Res tatement (Second) of Agency § 219(2)(b). To trigger liability under this standar d, Myers must come forward with evidence indicating defendant knew or should have k nown of the alleged harassment. See Harrison v. Eddy Potash, Inc. , 112 F.3d 1437, 1444 (10th Cir. 1997). The evidence presented by Myers indicates o nly that Cox was aware of the slapping incident and he acted immediately by sanct ioning Huckaby for the incident. The record simply does not indicate Cox or Steelman knew or should2Although some incidents were witnessed by other coworkers, most occurred

either when Myers and Huckaby were alone at work or occurred after work at Myers’ home. -6- have known about any of the other incidents between Myers and Huckaby. 2 See Pfau v. Reed , 125 F.3d 927, 939 (5th Cir. 1997) (hostile enviro nment sexual harassment was not so open and obvious that employe r should be charged with constructive notice because a substantial portion o f harassment took place outside the presence of other employees, including some inc idents away from the workplace). Because defendant did not have knowled ge of the other acts of harassment on the part of Huckaby, it could not hav e been negligent in failing to remedy the situation. Myers argues a “rape” comment made by Steelman, herimmediate supervisor, should also be construed as an incidentof sexual harassment. However, Myers “may only rely on evidence relating to harassment of which she was aware during the time that she was allegedly su bject to a hostile work environment.” Hirase-Doi v. U.S. West Communicatio ns, Inc. , 61 F.3d 777, 782 (10th Cir. 1995). In her initial charge of discrim ination, Myers specifically stated she “was sexually harassed by Clinton Huckaby.” Ap pellant’s App. I at 67. During her subsequent deposition, she made no menti on of hearing Steelman’s comment. Accordingly, we will not consider Steelma n’s comment in determining whether Myers has presented an actionable case of s exual harassment.-7-

Because we conclude Myers has failed to present suf ficient evidence to create a triable issue of fact concerning defendant ’s liability for the alleged harassment, we find it unnecessary to address the d istrict court’s alternate basis for granting summary judgment, i.e., the evidence o f harassment was not so severe as to create a hostile or abusive work envir onment.

Sexual discrimination Myers alleges discrimination on the basis of her ge nder in her termination from employment. In dismissing this claim, the dis trict court concluded she had failed to demonstrate defendant treated her less favorably then her male counterparts and she had failed to establish a prim a facie case of sexual discrimination. The court further concluded even i f she could establish a prima facie case, she had failed to come forward with evi dence establishing any of the legitimate reasons offered by defendant for termination were pretextual. To establish a prima facie case of disparate treatm ent gender discrimination, Myers must show (1) she belonged to the protected class; (2) she was qualified for the position; (3) despite her qua lifications, she was discharged; and (4) she was treated less favorably than her mal e counterparts. See Lowe v. Angelo’s Italian Foods, Inc. , 87 F.3d 1170, 1174-75 (10th Cir. 1996). If she c an establish a prima facie case of discrimination, the employer must then offer a-8-

facially nondiscriminatory reason for its employmen t action. McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973); Marx v. Schnuck Markets , Inc. , 76 F.3d 324, 327 (10th Cir.) (age discrimination), cert. denied , 116 S. Ct. 2552 (1996); Murray v. City of Sapulpa , 45 F.3d 1417, 1420-21 (10th Cir. 1995) (sex discrimination and retaliation). If the employer o ffers nondiscriminatory reasons for its employment action, Myers has the burden to produce “evidence upon which a factfinder could conclude that the defendant’s al leged nondiscriminatory reasons for the employment decision[] are pretextua l.” Ingels v. Thiokol Corp. , 42 F.3d 616, 622 (10th Cir. 1994); see also Randle v. City of Aurora , 69 F.3d 441, 451 (10th Cir. 1995) (“At the summary judgmentstage, it then becomes the plaintiff’s burden to show that there is a genuine dispute of material fact as to whether the employer’s proffered reason for the cha llenged action is pretextual-- i.e., unworthy of belief.”). Assuming Myers can establish a prima facie case of discrimination, it is evident defendant has come forward with facially no ndiscriminatory reasons for her discharge. As outlined in Cox’s deposition, he discharged Myers because (1) county operations were not running smoothly; (2) My ers was a difficult employee to deal with because she was often moody and angry; (3) Myers was reprimanded more than any other county employee (for unexcused absences, sleeping on the job, etc.); and (4) Myers had little seniority amon g county workers. The critical-9-

question is whether Myers has produced sufficient e vidence to demonstrate a genuine issue of material fact concerning whether C ox’s proffered reasons for her discharge are unworthy of belief. At best, evidenc e produced by Myers sufficiently challenges only the seniority factor. Notably, she has not controverted the fact that she left work without no tifying anyone, was caught sleeping on the job, and was confrontational with h er coworkers. We conclude the district court properly granted summary judgment in favor of defendant on Myers’ claim for sexual discrimination.

Retaliation Myers contends her employment was terminated in ret aliation for reporting incidents of sexual harassment. In granting summary judgment in favor of defendant on this claim, the district court conclud ed Myers had failed to establish a prima facie case of retaliation and, in particula r, there was insufficient evidence to demonstrate a causal connection between Myers’ r eport of the slapping incident (the only incident of harassment actually reported) and her subsequent termination six months later. To establish a prima facie case of retaliation unde r Title VII, Myers must demonstrate “(1) protected opposition to Title VII discrimination or participation in a Title VII proceeding; (2) adverse action by th e employer subsequent to or-10-

contemporaneous with such employee activity; and (3 ) a causal connection between such activity and the employer’s adverse ac tion.” Berry v. Stevinson Chevrolet , 74 F.3d 980, 985 (10th Cir. 1996). “The causal c onnection may be demonstrated by evidence of circumstances that just ify an inference of retaliatory motive, such as protected conduct closely followed by adverse action.” Burrus v. United Tel. Co. of Kan., Inc. , 683 F.2d 339, 343 (10th Cir. 1982). An inference of retaliatory motive can be made only if there is a close temporal proximity between the bringing of charges and the adverse act ion. See Candelaria v. EG&G Energy Measurements, Inc. , 33 F.3d 1259, 1262 (10th Cir. 1994). Our review of the record on appeal reveals no evide nce of a causal connection between Myers’ protected activity and he r subsequent termination. At most, she has demonstrated only that she reported the slapping incident to Cox in February 1995 and she was discharged in September 1 995. Under recent circuit precedent, it is clear the gap of six to seven mont hs between the occurrences is not sufficient to justify an inference of causation . See Conner v. Schnuck Markets, Inc. , 121 F.3d 1390, 1395 (10th Cir. 1997) (four-month time lag between participation in protected activity and ter mination not sufficient to justify inference of causation). Even assuming Myers was able to establish a prima facie case of retaliation, the record indicates defendant , through Cox, had ample reasons to terminate Myers’ employment. In light o f this evidence, the burden-11-

was on Myers to produce evidence that her discharge was in retaliation for her protected activity. We conclude Myers has failed t o meet this burden.

Equal pay claim Myers alleged defendant violated the Equal Pay Act (EPA) by paying her a truck driver’s salary even though she performed the same duties as higher-paid male equipment operators, and by denying her the sa me opportunity to work overtime as her male coworkers. To establish a pri ma facie case under the EPA, Myers has the burden of proving (1) she was perform ing work substantially equal to that of male employees, considering the skills, duties, supervision, effort, and responsibilities of the jobs; (2) the conditions wh ere the work was performed were basically the same; and (3) the male employees were paid more under such circumstances. Tidwell v. Fort Howard Corp. , 989 F.2d 406, 409 (10th Cir. 1993). We have reviewed the record on appeal and conclude Myers has failed to present sufficient evidence to establish a prima fa cie case. The uncontroverted evidence indicates she was hired by defendant as a truck driver and was paid the same monthly salary as male truck drivers. Althoug h she alleged she essentially worked as an equipment operator, the record does no t support this allegation. Even assuming she did operate equipment on a regula r basis to load and unload-12-

her truck, the district court correctly concluded s he “did not undertake these activities with the same frequency, skill, effort, or responsibility as possessed by seasoned equipment operators.” Appellant’s App. II at 721. Although there is limited evidence indicating some of the male equipm ent operators were lazy, this evidence does not demonstrate Myers was paid less b ecause of her sex. To the contrary, all employees classified as truck drivers received the same pay. Whether the county’s compensation system was fair o r should have been meritbased is not at issue. As for Myers’ assertion that she was denied the opportunity to work overtime, she has failed to come forward wi th sufficient evidence to support this claim. The only evidence cited by Mye rs is the deposition testimony of Horace Eaton, a truck driver who testified Myers did not receive overtime opportunities. However, Eaton’s testimony on this point is confusing and suggests male coworkers were denied overtime opportunities as well. Ultimately, Eaton’s testimony does not create a genuine issue o f fact concerning Myers’ claim that she was denied overtime on the basis of gender . We conclude the district court properly granted summary judgment for defendant on Myers’ equal pay claims.-13-

The judgment of the district court is AFFIRMED. De fendant’s motion to dismiss this appeal for Myers’ failure to file a ti mely appellate brief is DENIED.

Entered for the Court Mary Beck Briscoe Circuit Judge