FILED 

United States Court of Appeals 

Tenth Circuit 

UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

MAY 16 2005 

PATRICK FISHER 

Clerk 

SYLVIA BURNS, 

Pl a inti ff-Appellant, 

V. 

JOHN W. SNOW, Secretary of the 

United States Department of the 

Treasury, 

Defendant-Appellee. 

No. 04-1349 

(D. Colo.) 

(D.Ct. No. 03-Z-690 (BNB)) 

ORDER AND JUDGMENT* 

Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior 

Circuit Judges. 

After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34. l.9(G). The case is 

therefore ordered submitted without oral argument. 

• This order and judgment is not binding precedent except under the 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 I 0th Cir. R. 36.3. 

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Appellant Sylvia Burns appeals the district court's grant of summary 

judgment in favor of Appellee John W. Snow, Secretary of the United States 

Department of the Treasury (the Government), regarding her allegations 

employees of the United States Mint in Denver, Colorado (the Mint), failed to 

accommodate her disability and subjected her to sexual harassment and retaliation 

in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e 

through 2000e-l 7; and the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-32, 741, 

751, 760-65, 771-76, 780-85, 791-96. We exercise jurisdiction under 28 U.S.C. 

§ 1291 and affirm. 

I. Factual Background 

"In setting forth the facts, we view the evidence in the light most favorable 

to the non-moving party, as we must when reviewing a grant of summary 

judgment." Baca v. Sklar, 398 F.3d 1210, 1213 (10th Cir. 2005) (quotation marks 

and citation omitted). Summary judgment is appropriate "against a party who 

fails to make a showing sufficient to establish the existence of an element 

essential to that party's case .... " See Celotex Corp. v. Catrett, 4 77 U.S. 317, 322 

( 1986). Thus, for the purpose of reviewing the district court's summary judgment 

decision, we consider the following facts, which are either undisputed or 

uncontested, and/or based on the admissions and testimony of Ms. Burns during 

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the course of litigation in support of her claims, and which, even if true, we 

determine cannot defeat summary judgment in this case. 

A. Production and Attendance 

On May 10, 1999, Ms. Burns was hired by the Mint as a probationary 

employee in the position of Counting Machine Operator, working the graveyard 

shift. The duties of a counting machine operator include using a counting 

machine to count and bag a specified number of cents, nickels, dimes and 

quarters. At the Mint, probationary employees like Ms. Burns are hired for a oneyear trial period, during which their performance, attendance and compliance with 

workplace polices are monitored, and they are required to demonstrate fitness for 

permanent hiring. Counting machine operators are required to meet certain 

numerical production standards for each type of coin, and performance below 

95% of the standard is considered unacceptable. An employee may be terminated 

at any time during the probationary period for failure to demonstrate fitness and 

qualifications for continued federal employment, and has no right to warnings or 

progressive forms of discipline. 

During the period of Ms. Burns's probationary employment with the Mint 

the demand for new U.S. coins increased. As a result, the Mint operated twenty-

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four hours a day, seven days a week, which resulted in employees generally being 

required to work a six-day-per-week schedule. The Mint also gave employees the 

option of volunteering to work on the seventh day of each week. Attendance is a 

concern for the Mint because employees with unreliable attendance interfere with 

its ability to meet demanding production requirements. During Ms. Burns's job 

interview, when asked whether she could work overtime, including six days a 

week, she said she could. However, according to Ms. Burns, both the individual 

who interviewed her and the doctor who performed her pre-employment medical 

examination for the Mint told her employees hardly ever worked overtime at the 

Mint. 

During a period of at least twenty weeks, between June 1999 and March 

2000, Ms. Burns volunteered to work overtime on her one scheduled day off. In 

addition, for a total of twelve weeks between July 1999 and March 2000, she 

voluntarily worked more than forty-eight hours a week. During her probationary 

period, Ms. Burns never informed her direct supervisor, Tom Romero, that 

working overtime caused any medical problems and never asked him to excuse 

her from working scheduled overtime for any reason. 

While Ms. Burns volunteered to work overtime, her personnel records are 

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replete with performance appraisals evidencing deficiencies in her performance 

and attendance. Records show she failed to perform at the 95% required level on 

certain coins throughout her probationary period; they also contain entries by Mr. 

Romero stating he verbally counseled Ms. Burns about her production 

deficiencies, after which, he noted, she continued to perform below the required 

level. In addition, due to numerous incidents of tardiness and uses of 

unscheduled leave, personnel records show Mr. Romero verbally counseled Ms. 

Burns, warning she would be required to bring in medical documentation each 

time she called in sick. While Ms. Burns gave sundry reasons for being late and 

taking unscheduled leave, one notation shows the reason she gave for missing 

work on September 30, 1999, was for a "lupus flare-up." On December 17, 1999, 

Mr. Romero prepared a document which stated Ms. Burns failed to meet 

performance standards and had received counseling on her attendance; it also 

stated that if she failed to improve her performance, she would be discharged 

from her probationary employment for non-production. Ms. Burns signed the 

document, indicating it had been discussed with her. 

Thereafter, records show Ms. Burns was tardy at least one more time, had 

at least ten more unscheduled leave occurrences, and her production on nickels 

continued to be below the required 95% level. In total, over the course of her 

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eleven-month probationary employment, Ms. Burns was tardy for work at least 

seven times and took unscheduled leave at least eighteen times. 1 On April 18, 

2000, Ms. Burns took another sick leave absence, and on the same day, the Mint 

fired Ms. Burns, effective April 19, 2000, based on "unacceptable" or 

"unreliable" attendance and "unacceptable" or "substandard" production output. 

Three years after her termination, and two years after an unsuccessful 

EEOC agency action, Ms. Burns filed the instant action against the Mint, 

asserting its employees failed to accommodate her disability relating to lupus and 

subjected her to sexual harassment and retaliation in violation of Title VII of the 

Civil Rights Act, and the Rehabilitation Act. The record reveals the following 

evidence relating to her claims. 

B. Disability Claim 

In her written application for employment with the Mint, Ms. Burns 

represented her prior "job involved using physical strength, standing for long 

periods of time, ... walking and so on." During her job interview, when asked if 

1 Other than one entry for a "lupus flare-up," the other medical reasons 

provided by Ms. Burns for unscheduled sick leave included migraines or 

headaches, "illness," "UTI pain," fevers and/or flu, earache, cut finger, sinus 

infection, and urinary tract infection. 

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she would have difficulty lifting bags weighing twenty-eight to fifty pounds and 

standing for eight hours a shift, she responded, "No. I do it now," and as 

previously mentioned, she indicated she could work overtime, including six days a 

week. Ms. Burns claims she told the person interviewing her for the Mint job she 

had lupus. 

As part of the hiring process, Ms. Burns underwent a physical examination 

and filled out an occupational history questionnaire. In response to the question, 

"Do you have any problems you would like to discuss with the doctor?" Ms. 

Burns wrote, "Kaiser had treated me for lupus for 2 years or so but now I'm 

negative. I took quinine pills it helped th~ rash." She also completed a "SelfIdentification of Handicap" form on which she indicated she possessed no 

disability. Part of her physical examination included an assessment of whether 

she could perform the functional requirements of the job, including heavy lifting 

and carrying of forty-five pounds or more, and walking and standing for eight 

hours. Section AS of the form asked Ms. Burns whether she had any medical 

disorder or physical impairment which could interfere in any way with the full 

performance of these functional requirements, to which she answered, "no," and 

signed the form, certifying the information was correct. Following her physical, 

the examining physician recommended she be hired with no limitations. 

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Ms. Burns now c]aims she had difficulty walking and standing on three or 

four occasions during her eleven months of employment at the Mint. While she 

missed work on April 18, 2000, due to lesions on her feet, which her doctor 

described as a painful foot condition, she contends she was terminated due to her 

"flare up of lupus" on that same date. Although Ms. Burns brought in doctors' 

notes on other medical conditions, she never submitted one diagnosing her with 

lupus or indicating a need to accommodate her lupus. In fact, while Ms. Burns 

claims she was diagnosed with diskoid lupus in March 1997, none of the three 

rheumatologists who examined her on at least four occasions from 1998 to 2002 

diagnosed or confirmed she had lupus. Furthermore, Ms. Burns submitted no 

medical information confirming she had lupus, and admitted that in January 2000 

she told Dave Cruz, her second-line supervisor, and other coworkers at the Mint a 

doctor told her she did not have lupus. She also acknowledged a doctor told her 

she did not suffer from diskoid lupus, but rather experienced "atopic dermatitis," 

she was unsure if she had lupus, and did not recall if any doctor told her that her 

condition would affect her ability to work overtime. 

C. Harassment 

While at work at the Mint, Ms. Burns stated she was shown at least four or 

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five sexually-oriented photographs or cartoons,2 and in one case, approached a 

group of male coworkers in order to see a photo of topless women, which she 

found "mildly offensive." When shown these and other sexual images at work, 

Ms. Burns acknowledged she sometimes responded by laughing or chuckling, or 

making lewd or crude comments which caused her coworkers to laugh. Ms. Burns 

claims she behaved this way because she was afraid she would "offend 

somebody" or would experience reprisal. 

Ms. Burns testified most of the cartoons and jokes she was shown were of 

natural acts or bare-breasted women. While she found two of the pictures 

"offensive," she admitted that after she expressed being offended she was never 

shown them again. Ms. Burns also acknowledged she discussed sex at work when 

questioned about it, and even volunteered intimate information about her first 

husband. Even though the Mint maintained a written sexual harassment policy 

and Ms. Burns had experience with the Mint's Equal Employment Opportunity 

Office, having contacted it on another issue, she admitted she never "seriously" 

informed those around her that she was offended by any of the sexual materials, 

2 Specifically, the items about which Ms. Burns complains included a 

cartoon of President Bill Clinton engaged in oral sex with a female; a man 

groping a woman on a couch; a photograph of a vagina with something "huge" 

inserted in it; a photograph of topless large-breasted women on a river boat; and a 

photograph of a walrus with a flipper pointing toward its crotch area. 

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stating only that she was "afraid to." 

In support of her harassment claim, Ms. Burns also alleged Mr. Cruz 

brought in or observed pornographic materials on the workroom floor; discussed 

his and his father's sex lives; twice commented on the size of his penis; said he 

was promoted by sleeping with a female supervisor; purchased Ms. Burns two tshirts;3 asked her out or to move in with him; and commented on her cleavage. 

However, Ms. Burns admits this same supervisor also gave t-shirts to male crew 

members; bought one of the t-shirts at her request, although he declined payment 

for it; and left her alone after she told him "he needed therapy," and that she 

"couldn't date anybody who was like that." When Mr. Cruz commented on 

sleeping with a female supervisor to get promoted, Ms. Burns asked Mr. Romero 

if this was true, in response to which he nodded his head, making her feel like 

"they were preying on" her. She believes Mr. Cruz made these comments about 

sleeping with his supervisor in response to her requests for training, making her 

believe he was seeking sexual favors in return for such training. With respect to 

Mr. Cruz's comments about her cleavage, she said it made her feel like "a piece 

of meat." 

3 Ms. Burns points out she wore "biker" t-shirts to work, which Mr. Cruz 

inappropriately admired, and that he presented her with a black Harley Davidson 

shirt he got on a trip. 

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With regard to her first-level supervisor, Mr. Romero, Ms. Burns claims he 

knew another employee brought pornographic material into the workplace 

(including one of the pornographic pictures of which Ms. Burns now complains), 

and failed to do anything about it until 1999, when he counseled the employee. 

She also suggests Mr. Romero "asked her out" twice. According to Ms. Burns, 

the first time he asked her out by saying, "we should get together," when she told 

him he was a good-looking man and his wife must be beautiful. The second time, 

he allegedly stated "we should get to know each other better," to which she 

responded by pointing out they had just gone through in-house sexual harassment 

training and one of them could get in trouble talking about it; stating, "we can't 

go around behaving like a bunch of idiots." She admitted Mr. Romero's 

comments were "just his sense of humor," and that his and other coworkers' 

"vulgar" senses of humor "kind of rubbed off on [her]." She also admitted she 

told Mr. Romero he had a "tight butt, .. and requested a copy of "raunchy" jokes 

from him which contained sexual innuendo, and which she shared with her 

teenage son. In fact, during her 2001 EEOC hearing on the matter, Ms. Burns 

acknowledged Mr. Romero did not make sexually advancing or sexually harassing 

comments to her. 

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D. Retaliation and Failure to Accommodate Claims 

In December 1999, Ms. Burns contacted an EEO counselor and filed a 

complaint, alleging the Mint had failed to train ( or properly train) her on certain 

equipment. At the time she met with the EEO counselor, Ms. Burns claims she 

told him she was being harassed by both Mr. Cruz and Mr. Romero because she 

had moved in with a coworker, Mr. Watts, in late September or early October, and 

because she would not give into their "whims." She now claims she did not 

include this on her EEO complaint because she feared retaliation. On January 24, 

2000, she unconditionally withdrew her EEO complaint. 

Ms. Burns also claims that at her meeting with the EEO counselor she 

advised him she had lupus and had applied for a job in the mills because she knew 

it would allow her to work "light duty." In addition, sometime during the first six 

months of her job, Ms. Burns says she told her supervisors, Mr. Cruz and Mr. 

Romero, her foot hurt, she had lupus, and she had applied for a mill job which she 

thought would be easier. Ms. Burns did not get an interview for the mill job; 

instead, two other candidates did, including one person who scored higher on a 

knowledge and skills assessment, and another who scored higher due to veterans' 

preference points. When Ms. Burns found out she was not selected for a position 

in the mills, she told a human resources employee she was not feeling well and 

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that her lupus was flaring up. 

During the period of Ms. Burns's employment, Mr. Cruz dated an employee 

at the Mint who had lupus, whose medical condition was accommodated by not 

working overtime, and who provided medical documentation in support of her 

accommodation. Ms. Burns's other supervisor, Mr. Romero, knew someone with 

lupus might require reasonable accommodations at the Mint and an employee 

making such a disability claim must provide a doctor's note, but nevertheless, did 

not ask Ms. Burns for any medical documentation. While Ms. Burns told Mr. 

Romero she had lupus, she never asked for an accommodation, never brought in 

medical documentation confirming her medical condition, and told Mr. Cruz that 

a doctor said she did not have lupus. 

In January 2000 Ms. Burns contacted someone from the EEO office at the 

Mint and told her she was having problems and needed help; a month later, she 

was informed she needed to fill out a form. In late March, Ms. Burns received a 

form from the EEO office, which required a doctor identify her disease and 

restrictions; however, she did not submit the form prior to her termination. In late 

April 2000, following her termination, she filed an EEO complaint involving 

claims of disability, failure to accommodate, sexual harassment, and retaliation. 

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II. Procedural Background 

An EEOC hearing was held in November 2001 on Ms. Burns's EEO 

complaint. Unsuccessful in her action, Ms. Burns filed her First Amended 

Complaint in federal court July 2, 2003, claiming Mint employees failed to 

accommodate her disability relating to lupus and subjected her to sexual 

harassment and retaliation in violation of Title VII of the Civil Rights Act, and 

the Rehabilitation Act. Following discovery, the district court held a hearing on 

the Government's motion for summary judgment, at which time it issued a bench 

ruling determining Ms. Burns failed to: 1) provide any medical documentation 

she was disabled, or rebut the Mint's expert's medical opinion and assessment 

that she did not have lupus, for the purpose of showing she is a qualified person 

within the meaning of the Rehabilitation Act as having a disability which 

substantially impairs a major life activity or prevents her from performing a wide 

range of jobs; 2) establish conduct at the Mint was sufficiently severe or 

pervasive enough to support a quid pro quo sexual harassment claim, or otherwise 

show conduct that altered the condition of her employment and created an abusive 

working environment, or that any impermissible conduct was related to her 

gender; or 3) show a sufficient causal link between her complaints and her 

termination to support a retaliation claim. 

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In addition, the district court held the Mint provided legitimate, 

nondiscriminatory, non-retaliatory reasons for terminating Ms. Burns, who was a 

probationary employee with unreliable attendance, tardiness and unacceptable 

production levels. \Vith respect to the Mint's reasons not to transfer Ms. Burns to 

a mill job, the district court relied on Ms. Burns's work deficiencies and the fact 

the two other people who received interviews for the mill job were more 

qualified, to reject her accommodation and retaliation claims. Based on this and 

other reasoning, the district court determined Ms. Burns failed to provide a 

sufficient showing of triable issues of fact to overcome summary judgment, 

granted the Government's motion for summary judgment, dismissed her amended 

complaint with prejudice, and entered judgment in favor of the Government. 

III. Discussion 

A. Standard of Review 

"We review a district court's grant of summary judgment de novo, using the 

same standards applied by the district court." Baca, 398 F.3d at 1216. "We view 

the evidence and reasonable inferences drawn from the evidence in the light most 

favorable to the nonmoving party," and "grant summary judgment only where '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 

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material fact and that the moving party is entitled to a judgment as a matter of 

law."' Id. (quoting Fed. R. Civ. P. 56(c)). As previously noted, summary 

judgment is appropriate "against a party who fails to make a showing sufficient to 

establish the existence of an element essential to that party's case .... " Celotex, 

477 U.S. at 322. Summary judgment is appropriate "[i]f a reasonable trier of fact 

could not return a verdict for the nonmoving party .... " White v. York Int 'l Corp., 

45 F.3d 357,360 (10th Cir. 1995). "We may affirm the district court for any 

reason supported by the record." Baca, 398 F.3d at 1216 (quotation marks and 

citation omitted). 

B. Disability and Failure to Accommodate 

On appeal, Ms. Burns asserts the district court erred in granting summary 

judgment based solely on her failure to provide a conclusive medical opinion on 

her disability; she contends she was only required to advise her employer of her 

medically-required restrictions and possible ways to accommodate them. Ms. 

Burns claims she sufficiently raised the issue of having lupus and the need for a 

reasonable accommodation when she gave "lupus flare-up" as a reason for 

missing one day of work; told various other employees, including her two 

supervisors, she had lupus; and reported to an EEO counselor she had lupus and 

hoped to get a job in the mills. In general, Ms. Burns complains her lupus limited 

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her in her ability to stand and walk with respect to the overtime hours required for 

her position. 

The Americans with Disabilities Act of 1990 (ADA) provides that "[n]o 

covered entity shall discriminate against a qualified individual with a disability 

because of the disability of such individual in regard to job application 

procedures, the hiring, advancement, or discharge of employees, employee 

compensation, job training, and other terms, conditions, and privileges of 

employment." 42 U.S.C. § 12112(a). "Merely having an impairment does not 

make one disabled for purposes of the ADA." Toyota Motor Mfg., Ky., Inc. v. 

Williams, 534 U.S. 184, 195 (2002). To prevail under the ADA, an employee 

must establish: "( 1) she is a disabled person as defined by the ADA; (2) she is 

qualified, with or without reasonable accommodation, to perform the essential 

functions of the job held or desired; and (3) the employer discriminated against 

her because of her disability." Doyal v. Okla. Heart, Inc., 213 F.3d 492,495 

(10th Cir. 2000). 

"To establish a prima facie case of discrimination under the ADA, Plaintiff 

must first establish that [she] is 'disabled' within the meaning of the statute." 

Lusk v. Ryder Integrated Logistics, 238 F.3d 1237, 1239 (10th Cir. 2001). 

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"Disability" is statutorily defined or established by showing: "(A) a physical or 

mental impairment that substantially limits one or more of the major life activities 

of [an] individual; (B) a record of such impairment; or (C) being regarded as 

having such an impairment." Id. (relying on 42 U.S.C. § 12102(2)) (alteration in 

original). A "major life activity" is a "basic activity that the average person in 

the general population can perform with little or no difficulty," and includes 

walking, standing, sitting, lifting and working. Doyal, 213 F.3d at 495-96 

( quotation marks and citation omitted). In order for the impairment to be 

substantially limiting, the individual must be: 

(1) [ u]nable to perform a major life activity that the average person 

in the general population can perform; or (2) [ s ]ignificantly restricted 

as to the condition, manner or duration under which an individual can 

perform a particular major life activity as compared to the condition, 

manner, or duration under which the average person in the general 

population can perform that same major life activity. 

Id. at 496 (quoting 29 C.F.R. § 1630.20)(1)). Moderate restrictions on the ability 

to walk and stand have been determined not to amount to a substantial limitation, 4 

and we have held comparative evidence must be produced on the issue of lifting 

to show such an activity is substantially limited, unless the impairment appears 

4 See Talk v. Delta Airlines, Inc., 165 F .3d 1021, 1025 (5th Cir. 1999) 

(walking); Penny v. United Parcel Serv., 128 F.3d 408, 415 (6th Cir. 1997) 

(same); Kelly v. Drexel Univ., 94 F.3d 102, 106 (3rd Cir. 1996) (same); 29 C.F.R. 

Pt. 1630, App. l 630.2(j) (same). See also Taylor v. Pathmark Stores, Inc., 177 

F .3d 180, 186-87 (3rd Cir. 1999) (standing); Gallimore v. Newman Mach. Co., 

301 F.Supp.2d 431, 445-46 (M.D.N.C. 2004) (same). 

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substantially limiting on its face. See Lusk, 238 F.3d at 1240-41. To aid in 

assessing whether a major life activity is substantially limited, the evaluator must 

consider the type and severity of the impairment, the length of time the 

impairment has lasted or is expected to last, and the expected permanent and/or 

long-term impact of the impairment, 29 C.F.R. § 1630.2(j)(2), as well as any 

mitigating or corrective measures. See Pack v. Kmart Corp., 166 F.3d 1300, 

1305-06 ( I 0th Cir. 1999). 

In this case, Ms. Burns has failed to show she has a disability, either 

through evidence of a physical or mental impairment that substantially limits one 

or more of the major life activities; a record of such an impairment; or being 

regarded as having such an impairment. Doyal, 213 F .3d at 495. With respect to 

a major life activity, Ms. Burns has failed to show any inability or restriction in 

lifting, standing, or walking. In fact, during her interview and physical, she 

indicated her ability to perform such major life activities at work, and in fact, did 

so on numerous occasions while voluntarily performing overtime at the Mint. 

Even though she now complains she had difficulty walking and standing on three 

or four occasions during her eleven months of employment at the Mint, this is 

clearly insufficient to show she cannot perform these activities in the condition, 

manner or duration of the average person. Doyal, 213 F .3d at 496. Moreover, 

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nothing in the record shows her walking, standing and lifting problems, if any, 

were severe, Jong-term or had a permanent impact. 

Second, no record of an impairment exists to show Ms. Burns suffers from 

the disability she claims, other than her own self-serving, contradictory, 

conversational declarations to other employees she had lupus, and one excuse she 

gave for missing work due to a "lupus flare-up." These representations are 

insufficient to create a record of disability sufficient to overcome summary 

judgment, especially when considered together with: I) her statement on the SelfIdentification of Handicap form that she had no disability; 2) an entry on her 

physical examination form in which she indicated she no longer suffered from 

lupus; 3) her statements to a supervisor and other employees at the Mint she was 

not sure she had lupus and that a doctor told her she did not have lupus; 4) her 

failure to provide medical documentation she suffered from such a condition, 

especially given Mr. Romero told her any future sick leave must be supported by 

a doctor's note; 5) her lack of such a diagnosis by the three rheumatologists who 

examined her on at least four occasions from 1998 to 2002; 6) her representations 

when applying for the position that she could perform the functions of standing 

and walking for eight hours and lifting twenty-eight to fifty pounds; and 7) her 

actual performance of those functions, together with her frequent ability to work 

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overtime over the course of her eleven-month probationary period. In addition, as 

the district court pointed out, Ms. Burns failed to provide medical or other 

evidence to counter the Mint's expert's opinion she did not suffer from lupus, 

which is only one more factor in this case which we considered in determining 

Ms. Burns fails to show she is a qualified individual with a disability under the 

ADA. Thus, contrary to Ms. Burns's contentions, her failure to survive summary 

judgment is not based solely on the fact she failed to provide formal medical 

documentation of her disability. 

Nonetheless, Ms. Burns claims she gave the Mint sufficient notice of her 

disability by telling other employees she had lupus; and in support, relies on our 

decision in Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999). 

However, in that case, this court discussed the interactive process which occurs 

after an employee provides notice of the following: 1) the disability; 2) the 

resulting limitations of that disability; and 3) the desire for reassignment if no 

accommodation is possible in the employee's existing job. Id. at 1171-72. We 

pointed out a plaintiff could only survive summary judgment by showing he or 

she is a disabled person within the meaning of the ADA and made her or his 

limitations and requests for accommodation known to the employer. Id. at 1179. 

In this case, Ms. Burns has failed, as previously discussed, to show she is disabled 

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under the ADA, or that she sufficiently notified the Mint of any limitations 

resulting from a disability, or requested an accommodation. Specifically, Ms. 

Burns's request for "light duty" on the mills, based solely on her self-serving, 

contradictory verbal declarations as to her lupus condition, without more, was 

insufficient to place the Mint on notice of a disability, any limitations resulting 

therefrom, or a request for accommodation. In addition, the record shows the two 

individuals who were considered over Ms. Burns for the mill position were 

considered more qualified based on certain legitimate scoring methods, and that 

the woman who was accommodated for lupus had presented the Mint with 

medical documentation confirming her disability. 

Finally, nothing in the record shows Ms. Burns was ever regarded as having 

lupus. For these reasons, the district court did not err in finding Ms. Burns had 

not shown she suffered from a disability for the purposes of bringing a Title VII 

claim. 

C. Sexual Harassment 

In asserting the district court erred in rejecting her sexual harassment 

claim, Ms. Burns suggests the totality of the circumstances shows a sufficiently 

severe or pervasive environment existed to make her case unsuited for summary 

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judgment. In support, she reiterates every fact or allegation which in any way 

lends support to her contentions, claiming together they show an environment 

replete with sexual innuendo, where her supervisors, Mr. Cruz and Mr. Romero, 

made it "clear to [her] that tangible job benefits would be rewarded for those who 

dated men in management." 

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 insult that is sufficiently severe or pervasive to alter the 

conditions of the victim's employment and create an abusive working 

environment. 

O'Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1097 (10th Cir. 1999) 

( quotation marks, alteration, and citations omitted). This requirement is "crucial 

... to ensure that courts and juries do not mistake ordinary socializing in the 

workplace-such as ... horseplay or ... flirtation-for discriminatory 'conditions 

of employment."' Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 81 

(1998). "Whether an environment is 'hostile' or 'abusive' can be determined only 

by looking at all the circumstances ... , includ[ing] 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 performance." O'Shea at 1098 (quotation marks and 

citations omitted). 

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"The severity and pervasiveness of the conduct must be judged from both 

an objective and a subjective perspective," and "[t]he objective severity of 

harassment should be judged from the perspective of a reasonable person in the 

plaintiff's position, considering 'all the circumstances."' Id. at 1097-98 

( quotation marks and citation omitted). This may include "the social context in 

which the particular behavior occurs and is experienced by its target," and 

requires "[ c]ommon sense, and an appropriate sensitivity to social context ... to 

distinguish between simple teasing ... and conduct which a reasonable person in 

the plaintiff's position would find severely hostile or abusive." Oncale, 523 U.S. 

at 81-82. Thus, our inquiry requires an assessment of the "real social impact of 

workplace behavior [based] on a constellation of surrounding circumstances, 

expectations, and relationships which are not fully captured by a simple recitation 

of the words used or the physical acts performed." Id. at 82. 

With regard to quid pro quo sexual harassment, we have said that"[ w ]hen a 

plain ti ff proves that a tangible employment action resulted from a refusal to 

submit to a supervisor's sexual demands, he or she establishes that the 

employment decision itself constitutes a change in the terms and conditions of 

employment that is actionable under Title VII." See Smith v. Cash/and, Inc., 193 

F.3d 1158, 1160 (10th Cir. 1999). An employer may refute a quid pro quo 

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harassment claim by either proving no negative employment action took place or 

establishing it made the termination decision for legitimate business reasons and 

not because the employee refused to submit to sexual demands. Id. 

We begin with Ms. Burns's claim on appeal that she experienced quid pro 

quo sexual harassment because her supervisors made it "clear to [her] that 

tangible job benefits would be rewarded for those who dated men in 

management." While we cannot condone any sexually-oriented or coarse 

comments Mint supervisors may have made to Ms. Burns, the totality of the 

circumstances does not show, as Ms. Burns now contends, that either of her 

supervisors made demands which, if she either accepted or refused, would result 

in a certain outcome. In other words, she has not shown she was promised 

tangible job benefits if she dated them or experienced reprisal when she refused 

to have a relationship with them. In fact, while Mr. Cruz and Mr. Romero made 

comments Ms. Burns believed meant they were asking her out, she admitted they 

left her alone when she made it clear she was not interested in dating them. She 

has also acknowledged Mr. Romero did not make sexually advancing or sexually 

harassing comments to her. 

Moreover, nothing about the t-shirts Mr. Cruz gave Ms. Burns is suggestive 

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of any sexually-related expectation, especially given he also gave other crew 

members t-shirts. However, the alleged comments he made about sleeping with a 

supervisor to get his job when Ms. Burns asked about receiving more training on 

certain machines is of concern and, as Ms. Burns contends, could be construed as 

quid pro quo sexual harassment. However, in this case, it appears Ms. Burns did 

get the training she sought without dating Mr. Cruz, as evidenced by her 

withdrawal of her EEO complaint requesting training. In addition, the Mint has 

provided substantial evidence Ms. Burns was discharged for performance and 

attendance deficiencies, and not for anything involving Mr. Cruz's behavior, 

thereby providing legitimate and nondiscriminatory reasons for her termination. 

While she complains she could have performed her job better if she had timely 

received the training she requested, she still has not overcome the deficiencies in 

her attendance at a facility where attendance was critical in order to meet national 

production standards. 

\Ve also view Ms. Burns's supervisors' behavior in view of her more 

general sexual harassment claim in determining whether the circumstances 

presented in this case caused Ms. Burns to experience a severely hostile or 

abusive work environment. See Oncale, 523 U.S. at 81-82. The record on appeal 

shows Ms. Burns participated, albeit sometimes less than enthusiastically, in the 

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sexual banter and innuendo which she now complains detrimentally affected her, 

but which she has not shown affected her performance at work. In so doing, Ms. 

Burns admits the "vulgar" sense of humor of her co-workers "kind of rubbed off 

on [her]." While she complains Mr. Cruz's comment about her cleavage made her 

feel like "a piece of meat," she similarly told her other supervisor he had a "tight 

butt," evidencing her participation in the same type of sexual banter as her 

supervisors. While she complains Mr. Cruz discussed his sex life with her, Ms. 

Burns admits she also volunteered information about her own sex life, including 

information about her ex-husband. Equally indicative of her acquiescence in such 

behavior is her admission she asked Mr. Romero for a copy of raunchy jokes and 

then, astonishingly, passed them on to her teenage son. Viewing Ms. Burns's 

supervisors' conduct, together with her own behavior and the entire social context 

in which such conduct occurred, we believe the circumstances presented in this 

case did not cause Ms. Burns to experience a severely hostile or abusive work 

environment. See id. at 81-82. 

Similarly, while we do not condone the viewing of pornographic materials 

at a government facility, we do not find the circumstances described by Ms. Burns 

established an environment "permeated with discriminatory intimidation, ridicule, 

and insult that [was] sufficiently severe or pervasive to alter the conditions of 

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[her] employment and create an abusive working environment." 0 'Shea, 185 F.3d 

at 1097 ( quotation marks and citations omitted). While Ms. Burns complains 

about the pornographic materials she saw, she actually approached a group of men 

to see one of the pictures; admits some of the pictures were not offensive to her; 

and acknowledges she participated in their viewing, at times laughing and 

chuckling or making lewd and crude comments. Thus, we find Ms. Burns's own 

behavior indicative in defining the social context in which the particular 

complained-of behavior occurred, and cannot say, with respect to the viewing of 

the pornographic photographs, that she has shown she experienced a severely 

hostile or abusive work environment, given her own participation in it. See 

Oncale, 523 U.S. at 81-82. 

In addition, with respect to two of the pictures Ms. Burns found offensive, 

she acknowledges she was never shown them again once she complained about 

them. Even though the Mint maintained a written sexual harassment policy and 

l'vts. Burns had experience with the Mint's Equal Employment Opportunity Office, 

she admitted she never "seriously" informed anyone she was offended by any of 

the sexual materials. Finally, while she complains Mr. Romero was aware another 

employee brought pornographic material into the workplace prior to and during 

1999, when Ms. Burns was employed at the Mint, Mr. Romero did verbally 

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counsel that employee in 1999 about his behavior, including discussion about 

bringing in one of the photos about which Ms. Burns now complains. Thus, under 

the totality of the circumstances presented in this case, we agree with the district 

court's assessment that insufficient evidence exists to establish conduct 

sufficiently severe or pervasive to alter the condition of Ms. Burns's employment 

and create an abusive working environment. 

D. Retaliation 

Weakest of all is Ms. Burns's claim Mint employees took adverse actions 

against her in retaliation for her moving in with a co-employee, and her comments 

to the EEO counselor that she believed she was being sexually harassed because 

she would not give in to Mr. Cruz's or Mr. Romero's "whims," and instead moved 

in with Mr. Watts. Specifically, Ms. Burns claims the Mint's retaliation against 

her began around October, after she moved in with Mr. Watts, as evidenced by 

Mr. Romero's counseling of her in November about her leave issues. After she 

went to the EEO counselor in early December, she points out the retaliation 

continued because Mr. Romero met with her on December 17, 2000, to place her 

on a performance improvement plan, and thereafter, told her she had to bring in 

medical documentation for her sick leave. Ultimately, the retaliatory, adverse 

action of which she complains is her termination, and she contends the Mint's 

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reasons for discharging her are merely a pretext for discriminatory reasons. She 

also complains, however, that she was terminated based on her last sick leave 

absence, which was related to lupus, thereby also implicating a retaliation claim 

based on her disability. 

To establish a prima facie case of retaliation under Title VII of the Civil 

Rights Act the employee must demonstrate: 1) she engaged in a protected 

employee action; 2) the employer took an adverse action either after or 

contemporaneous with the employee's protected action; and 3) a causal 

connection existed between the employee's action and the employer's adverse 

action. See Dick v. Phone Directories Co., 397 F.3d 1256, 1267 (10th Cir. 2005) 

( considering retaliation claim based, in part, on hostile environment claim); 

Morgan v. Hilti, Inc., 108 F.3d 1319, 1324 (10th Cir. 1997) (considering 

retaliation claim based on disability claim). "[The employee] may maintain an 

action for retaliation even though the conduct forming the basis of her underlying 

complaint was not adjudged to have violated Title VII." Dick, 397 F .3d at 1267. 

If the plaintiff establishes a prima facie case of ADA discrimination, 

the burden shifts to the employer to offer a legitimate, 

nondiscriminatory reason for the challenged action .... If the 

defendant articulates such a reason, then the plaintiff may prove that 

it is merely a pretext for unlawful discrimination on the basis of her 

disability. 

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Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1259 (10th Cir. 2001). "When 

assessing a contention of pretext, we examine the facts 'as they appear to the 

person making the decision to terminate [the] plaintiff,"' and "[ w ]e may not 

second guess the business judgment of the employer." Id. at 1261 ( citations 

omitted). 

In this case, assuming Ms. Burns engaged in a protected employee action, 

the record contains substantial evidence she was discharged for performance and 

attendance deficiencies at a facility where performance and attendance are critical 

in order to meet national production standards, thereby providing a legitimate and 

nondiscriminatory reason for her termination. Her attempts to show these reasons 

were merely a pretext for unlawful termination are unavailing. While Ms. Burns 

complains she was discharged based on her last sick leave absence, which was 

related to lupus, the doctor's note for that absence states it was for lesions on her 

feet, and does not mention lupus. Moreover, prior to this absence, Ms. Burns had 

already taken unscheduled leave eighteen times, and had failed to meet the 95% 

required production level on various coins at different times, thereby setting in 

motion the legitimate, nondiscriminatory reasons for her discharge. 

The same is true of the disciplinary or counseling actions taken by Mr. 

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Romero. While they may have incidently coincided with her moving in with a coworker and her comments to the EEO counselor about her supervisors' behavior, 

it is clear that prior to these events, Ms. Burns had already accumulated many 

instances of unscheduled leave, been tardy, and consistently failed to meet 

production standards. Moreover, she has not shown Mr. Romero was aware of 

her comments to the EEO counselor prior to the actions he took. 

Consequently, Ms. Burns fails to show a causal link between her comments 

to the EEO counselor and the Mint disciplining her, or that her alleged disability 

was related to her termination. Under these circumstances, it is clear the Mint's 

articulated reasons for her termination were legitimate, and not mere pretext. 

Accordingly, the district court did not err in rejecting Ms. Burns's retaliation 

claim. 

IV. Conclusion 

For the foregoing reasons, we AFFIRM the district court's grant of 

summary judgment to the Government. 

Entered by the Court: 

WADE BRORBY 

United States Circuit Judge 

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