                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JAN 5 2001
                                 TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 DIANE G. DEFLON,

          Plaintiff-Appellant,
 v.
                                                        No. 99-2239
 DANKA CORPORATION
                                              (D.C. No. CIV-98-626-MV/LFG)
 INCORPORATED, Survivor and
                                                        (Dist. N.M.)
 Successor to Danka Industries, Inc.,
 aka Danka Business Systems,

          Defendant-Appellee.




                             ORDER AND JUDGMENT *


Before TACHA, Chief Judge, ANDERSON and EBEL, Circuit Judges.


      Plaintiff-Appellant Diane G. DeFlon (“DeFlon”) filed an action against her

former employer, Defendant-Appellee Danka Corporation, Inc. (“Danka”), in the

United States District Court for the District of New Mexico. DeFlon alleged

various sex discrimination claims under Title VII, 42 U.S.C. § 2000e et seq.

(“Title VII”). DeFlon alleged facts to support four distinct Title VII claims in her



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
complaint: (1) sex discrimination based on a hostile work environment theory; (2)

sex discrimination in the form of disparate compensation; (3) sex discrimination

based on the failure to promote; and (4) sex discrimination resulting in

constructive discharge. DeFlon also asserted a claim under the Equal Pay Act, 29

U.S.C. § 206(d) (the “EPA”), and two New Mexico state tort law claims: one

claim of negligent supervision and retention, and one claim of intentional

infliction of emotional distress. The district court granted summary judgment to

Danka on all claims, including the state law claims, and DeFlon appeals the

judgment of the district court. Exercising jurisdiction pursuant to 28 U.S.C. §

1291, we AFFIRM.

                                  BACKGROUND

          Danka is engaged in the business of selling office equipment and has a

regional office in Albuquerque, New Mexico. 1 The events giving rise to this case

occurred while DeFlon was employed as a sales representative at this Danka sales

office from January 1994 until she resigned in May 1997.

      DeFlon initially began work as a sales representative at Danka in January

1994. DeFlon’s primary sales territory at Danka was the sale of fax machines to

government agencies. DeFlon sometimes also sold fax machines to private and




      We review the evidence in the light most favorable to DeFlon, the
      1

nonmoving party on summary judgment.

                                         -2-
commercial accounts and color copiers to government accounts. DeFlon filed a

charge of discrimination with the Equal Employment Opportunity Commission

(“EEOC”) on May 22, 1997, and resigned from Danka five days later.

      DeFlon’s claims largely focus on the conduct of Dan Sawyers (“Sawyers”),

who was DeFlon’s direct supervisor at Danka from mid-to-late 1995 to June 1996.

Almost every morning during this period, Sawyers would call DeFlon into his

office. Sawyers would “rant and rave” at DeFlon, belittling her work

performance and threatening to fire her, while pacing in front of DeFlon and

waiving his finger in her face. Sawyers treated other women at Danka in a

similarly abusive manner.

      DeFlon made a verbal complaint about Sawyers to Human Resources on

January 29, 1996, which was followed by two written complaints dated February

5, 1996, and March 31, 1996. Although DeFlon’s complaints describe Sawyers’

abusive and belittling conduct, they do not state that he engaged in this conduct

because she was a woman.

      In response to DeFlon’s complaint, Claude Burris, a supervisor at Danka,

told her there was nothing he could do except “keep an eye on it to make sure

[Sawyers] didn’t do anything to harm [DeFlon].” Burris did, however, report

these complaints to Steve Lasky, the regional sales manager at Danka. When

Burris spoke to Sawyers about the complaints, Sawyers apparently told Burris,


                                        -3-
that “he did not want [DeFlon] in the branch; that she was worthless; that she was

very emotional, and that if he couldn’t get her out with numbers, he’d get her out

by . . . working on her emotional side.”

      In June 1996, Sawyers was terminated. Sawyers testified that he was told

he was being fired because he had failed to meet sales goals.

      DeFlon also asserts that Lasky demeaned her while she was employed at

Danka. Lasky once informed DeFlon that she would have to reach or exceed her

quotas or he would be forced to let her go.

      DeFlon also objects to the conduct of Van Hartley (“Hartley”), who served

as DeFlon’s supervisor at an unspecified time for an unspecified duration.

DeFlon observed Hartley referring to other female workers in a degrading

manner. On another occasion, Hartley asked DeFlon about the status of a sale and

then commented, “if you can’t close it, I’ll [Hartley] have to sleep with her [the

client]. I know what that old bag needs.” During the last three weeks of her

employment at Danka in April 1997, DeFlon was “shunned” by Hartley and

Chester Lovato (“Lovato”), a coworker. Hartley and Lovato apparently refused to

speak to her or acknowledge her existence.

      In addition to making the above-described allegations concerning the

conduct of supervisors and coworkers, DeFlon asserts that there were a variety of

other practices at Danka that made it a difficult place for her to work.


                                           -4-
      For example, DeFlon argues that Danka resolved “poaching” problems in a

discriminatory manner. Poaching occurs when a sales representative crosses over

into another sales representative’s territory. Danka has a strict policy against

poaching, requiring that the deal be “reversed” and that the commission be given

to the representative whose territory was poached. Tom Grover, a male sales

representative poached an account from DeFlon. When DeFlon complained about

it to Hartley, her supervisor at the time, he did not offer to reverse the deal but he

did offer DeFlon a commission on one of Grover’s accounts. The poached deal

was eventually reversed at the request of Terrell, the manager of the human

resources department.

      DeFlon also complains about the manner in which fax sales representatives

were awarded commissions and territory. From time to time, Danka sales

representatives were permitted to “throw in” a fax machine in order to sweeten a

copier deal. On these occasions, the fax sales representative (i.e., DeFlon or

Debbie Fowler) would not receive a commission. Elroy Duran reported doing this

on one, nongovernmental account. DeFlon also argues that when Jim Witt came

in as the major market manager at Danka he “took” the best fax sales territories

from DeFlon and Larkin.

      DeFlon also claims that women at Danka were given less desirable office

space and office furniture. With respect to the office furniture, Burris testified


                                          -5-
that DeFlon and Larkin had less desirable furniture but that he believed Lasky got

them new furniture.

      DeFlon further asserts that Danka treated employees differently with

respect to its sick leave policy. DeFlon always submitted her time sheets when

she had taken sick leave, even though sales representatives were not required to

do so. DeFlon also complains about an incident occurring in April 1997. One

day when DeFlon was on sick leave, Hartley, her supervisor at the time, called

and told her to “get crutches” and come to work to attend a demonstration that she

was supposed to give to a prospective client. DeFlon did not go to work but

arranged for the company representative to do the demonstration.

      DeFlon filed a complaint against Danka in the United States District Court

for the District of New Mexico in May 1998, alleging various violations of Title

VII and the EPA. DeFlon also brought two New Mexico state law tort claims: a

claim of negligent supervision and retention, and a claim of intentional infliction

of emotional distress. Danka moved for summary judgment on all of the claims.

The district court granted the motion as to all claims. DeFlon appeals the

judgment of the district court.

                                  DISCUSSION

      “We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court.” Simms v. Oklahoma


                                        -6-
ex rel. Dep’t of Mental Health and Substance Abuse Servs., 165 F.3d 1321, 1326

(10th Cir. 1999). Summary judgment is appropriate “if 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). “When

applying this standard, we view the evidence and draw reasonable inferences

therefrom in the light most favorable to the nonmoving party.” Simms, 165 F.3d

at 1326.

I.    Title VII Claims

      DeFlon alleged four distinct Title VII claims in her complaint: (1) sex

discrimination based on a hostile work environment theory; (2) sex discrimination

in the form of disparate compensation; (3) sex discrimination based on the failure

to promote; and (4) sex discrimination resulting in constructive discharge.

      A.     Hostile Work Environment Claim

      The district court found that Danka was entitled to summary judgment on

DeFlon’s hostile work environment claim. The district court first assessed what

evidence could be considered in connection with the hostile work environment

claim because some of the alleged conduct occurred outside the Title VII period of

limitations. The district court concluded that the acts that occurred outside the

limitations period could not be considered under the continuing violation doctrine.


                                         -7-
After reviewing the remaining factual allegations (i.e., those acts that occurred

within the period of limitations), the district court concluded that DeFlon had

failed to show that a genuine issue of material fact existed concerning her hostile

work environment claim. While DeFlon urges that the district court erred in both

steps of its analysis, we find no error on the part of the district court with respect

to either of these conclusions.

             1.     Application of the Continuing Violation Doctrine

      42 U.S.C. § 2000e-5(e)(1) requires that a charge of discrimination be filed

within 180 days after the alleged unlawful employment practice occurred.

However, “[i]f a complainant initially institutes proceedings with a state or local

agency with authority to grant or seek relief from the practice charged, the time

limit for filing with the EEOC is extended to 300 days.” EEOC v. Commercial

Office Prods. Co., 486 U.S. 107, 110 (1988). New Mexico is one such state where

the period of limitations is extended to 300 days. See Mascheroni v. Board of

Regents of the Univ. of Cal., 28 F.3d 1554, 1557 (10th Cir. 1994).

      In this case, DeFlon filed a complaint with the New Mexico Human Rights

Division and the EEOC on May 22, 1997. DeFlon concedes that much of the

discriminatory conduct occurred prior to July 26, 1996 (the cut-off date for the

limitations period) because Sawyers was fired in June 1996. To avoid this

problem, DeFlon claims that the incidents occurring before and after July 1996


                                          -8-
constitute a continuing pattern of discrimination, and that the acts occurring before

July 1996 can therefore be considered under the continuing violation doctrine.

      The continuing violation doctrine “‘permits a Title VII plaintiff to challenge

incidents that occurred outside the statutory time limitations of Title VII if such

incidents are sufficiently related [to events occurring within the time limitations

period] and thereby constitute a continuing pattern of discrimination.’”

Mascheroni, 28 F.3d at 1560 (10th Cir. 1994) (alteration in original) (quoting Hunt

v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994)). The Supreme Court in Delaware

State College v. Ricks, 449 U.S. 250, 256-57 (1980), however, recognized that one

of the purposes of the limitations period is to “protect employers from the burden

of defending claims arising from employment decisions that are long past.” 2 Thus

in order to “recover for discriminatory acts occurring prior to the statutory

limitations period . . . at least one instance of the discriminatory practice [must]

occur[] within the filing period.” Mascheroni, 28 F.3d at 1561. The act within the

statutory period must be a discriminatory act itself, and not simply a consequence

of an act that is outside the statutory period. Id. at 1561. To show a continuing

violation a plaintiff can either show “(1) a series of related acts taken against a



      2
        In Ricks, the plaintiff was denied tenure and later terminated. The Court
found that although the termination flowed from the denial of tenure, the plaintiff
could not use the termination to reach the allegedly discriminatory act of denying
tenure. Ricks, 449 U.S. at 257.

                                         -9-
single individual, one or more of which falls within the limitations period, or (2)

the maintenance of a company-wide policy of discrimination both before and

during the limitations period.” Purrington v. Univ. of Utah, 996 F.2d 1025, 1028

(10th Cir. 1993). The district court concluded that DeFlon had failed to make the

necessary showing under either of these tests.

                    a) Related Acts

      “To prove a series of related acts [DeFlon] must show that the acts rise to

the level of a ‘dogged pattern’ of discrimination as distinguished from ‘isolated

and sporadic outbreaks.’” Purrington, 996 F.2d at 1028 (quoting Bruno v. W.

Elec. Co., 829 F.2d 957, 961 (10th Cir. 1987)). The Tenth Circuit utilizes the

following three-part inquiry to determine whether there is a continuing violation:

“‘(i) subject matter–whether the violations constitute the same type of

discrimination; (ii) frequency; and (iii) permanence–whether the nature of the

violations should trigger an employee’s awareness of the need to assert her rights

and whether the consequences of the act would continue even in the absence of a

continuing intent to discriminate.’” Mascheroni, 28 F.3d at 1561 (quoting Martin

v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1415 (10th Cir. 1993)). Although

each of these factors is relevant to the inquiry, this is not an exclusive list of

factors. See Purrington, 996 F.2d at 1028.




                                         - 10 -
      As an initial matter, we observe that we may only consider some of the post-

limitations period conduct on which DeFlon relies because there is no evidence to

show that DeFlon had knowledge of a number of the comments that she now

claims were directed at other employees. We have held that a court cannot

consider harassing conduct about which the plaintiff had no knowledge. See

Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 782 (10th Cir. 1995)

(citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)). Technically,

Hirase-Doi addresses whether conduct about which the plaintiff has no knowledge

should be considered for purposes of assessing whether a genuine material fact

exists as to the plaintiff’s hostile work environment claim. We believe it is also

appropriate, however, to exclude conduct about which the plaintiff did not have

knowledge in assessing a continuing violation argument. This court has noted that

“[p]ermanency depends on what the plaintiff knew or should have known at the

time of the violation” and that we should inquire into “whether the acts have the

degree of permanence which should alert the employee to the duty to assert her

rights.” See Purrington, 996 F.2d at 1028. In addition, Purrington requires a

showing of a “series of related acts taken against a single individual.” Id.

(emphasis added).

      Further, a number of the other acts and comments about which DeFlon

complains cannot be considered to show a continuing violation of sexual


                                        - 11 -
harassment against her because she fails to link them to the fact that she is a

woman. Many incidents in this record appear to be gender-neutral and therefore

do not appear to be gender-based discriminatory acts. See Gross v. Burggraf

Constr. Co., 53 F.3d 1531, 1537 (10th Cir. 1995) (“If the nature of an employee's

environment, however unpleasant, is not due to her gender, she has not been the

victim of sex discrimination as a result of that environment.” (citation and

quotations omitted)). This court has emphasized that “[a]lthough the subsequent

act need not be actionable in its own right, it must be an act of discrimination or it

cannot share commonality with the preceding acts on the most important

characteristic of all -- that the acts are related acts of discrimination.”

Mascheroni, 28 F.3d at 1562. Because DeFlon does not show a gender-based

discriminatory animus on the part of Hartley, Terrell, Lovato or Sigmon, nor a

relationship between those acts and Sawyers’ pre-limitations period acts, we do

not consider the acts of the former employees to be extensions of Sawyers’

allegedly discriminatory acts. DeFlon should have become aware of her rights at

the time she was subjected to Sawyers’ abuse, which preceded the applicable

statute of limitation period. Because this court has observed that “a continuing

violation claim will likely fail if the plaintiff knew, or through the exercise of

reasonable diligence would have known, she was being discriminated against at

the time the earlier events occurred,” Bullington v. United Air Lines, Inc., 186


                                          - 12 -
F.3d 1301, 1311 (10th Cir. 1999) (emphasis added), DeFlon’s claim fails on this

ground.

                    b) Maintenance of a Company-Wide Policy

      “A continuing violation may [also] be established with evidence of a

pervasive, institutionalized system of discrimination which typically involves

discrimination through an employer’s policies or practices.” Purrington, 966 F.2d

at 1029 (internal citations and quotations omitted). “A refusal to rectify a

discriminatory practice or a repetition of the practice itself can render the act a

continuing violation of civil rights.” Id. (citation and quotations omitted). Thus,

we must determine whether Danka either engaged in a company policy of

discrimination or refused to rectify a continuing practice that discriminated on the

basis of gender.

      The only company policy that appears to span the time period both before

and after July 1996 is the policy of allowing copier sales representatives to include

a fax machine to sweeten a copier deal. It does not appear, however, that this

conduct can be attributed to discrimination on the basis of sex. Similarly, DeFlon

fails to establish a company policy of sexual discrimination with regard to the

company’s policies pertaining to sick leave and poached deals.




                                         - 13 -
      For these reasons, we agree with the district court that DeFlon has not

shown a continuing violation of her rights, such that the court cannot consider the

pre-July 26, 1996, conduct in connection with her hostile work environment claim.

             2.        Hostile Work Environment

      Under Title VII, discrimination against “an individual with respect to his

compensation, terms, conditions or privileges of employment because of such

individual’s . . . sex” is an unlawful employment practice. 42 U.S.C. § 2000e-

2(a)(1).

      In Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986), the Supreme

Court stated that “[f]or sexual harassment to be actionable, it must be sufficiently

severe or pervasive to alter the conditions of [the victim's] employment and create

an abusive working environment.” Id. at 67 (citation omitted) (alteration in

original). The existence of sexual harassment must be determined “in light of the

record as a whole and the totality of [the] circumstances, such as the nature of the

sexual advances and the context in which the alleged incidents occurred.” Id. at

69 (quotations and citation omitted). The mere utterance of a statement which

“‘engenders offensive feelings in an employee would not affect the conditions of

employment to [a] sufficiently significant degree to violate Title VII.” Id. at 67

(citations omitted).




                                        - 14 -
      In Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Court clarified

the elements of a claim for gender discrimination resulting from a hostile work

environment:

      Conduct that is not severe or pervasive enough to create an objectively
      hostile or abusive work environment--an environment that a reasonable
      person would find hostile or abusive--is beyond Title VII's purview.
      Likewise, if the victim does not subjectively perceive the environment to be
      abusive, the conduct has not actually altered the conditions of the victim's
      employment, and there is no Title VII violation.

Id. at 21-22.

      This court has further explained that “[a]ny harassment of an employee ‘that

would not occur but for the sex of the employee . . . may, if sufficiently patterned

or pervasive, comprise an illegal condition of employment under Title VII.’”

Gross, 53 F.3d at 1537 (alteration in original) (quoting Hicks v. Gates Rubber Co.,

833 F.2d 1406, 1415 (10th Cir. 1987), aff'd after remand, 928 F.2d 966, 971 (10th

Cir. 1991)). As noted above, “‘[i]f the nature of an employee's environment,

however unpleasant, is not due to her gender, she has not been the victim of sex

discrimination as a result of that environment.’” See id. (quoting Stahl v. Sun

Microsystems, Inc., 19 F.3d 533, 538 (10th Cir. 1994)). The Court emphasized

that harassment between men and women is not “automatically discrimination

because of sex merely because the words used have sexual content or

connotations.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80

(1998). The critical issue “is whether members of one sex are exposed to

                                        - 15 -
disadvantageous terms or conditions of employment to which members of the other

sex are not exposed.” Id.

      In short, for DeFlon to survive the summary judgment motion, this court,

after assessing all of the evidence in context, must conclude that: (1) the conduct

stemmed from a sexual animus; and (2) the conduct in question was severe or

pervasive enough to create a work environment that was objectively and

subjectively abusive and hostile. See Gross, 53 F.3d at 1539; Bolden v. PRC, Inc.,

43 F.3d 545, 551 (10th Cir. 1994).

      As explained above in Section I.A., this court’s consideration of DeFlon’s

hostile work environment claim is limited to conduct that occurred after July 26,

1996. Similarly, this court cannot consider conduct of which DeFlon was not

aware. See Hirase-Doi, 61 F.3d at 782. And, in addition, this court cannot

consider acts of unpleasantness or even unfairness that are not, on the record, tied

to gender. Those exclusions leave insufficient acts to support DeFlon’s hostile

work environment claim. “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.’” Penry v. Fed. Home

Loan Bank, 155 F.3d 1257, 1261 (10th Cir. 1998) (quoting Davis v. U.S. Postal


                                         - 16 -
Serv., 142 F.3d 1334, 1341 (10th Cir. 1998)). We therefore conclude that the

district court properly granted summary judgment to Danka on the hostile work

environment claim.

      B.     Disparate Compensation Claim

      DeFlon’s disparate compensation claim is based on two types of conduct by

Danka, both of which relate to the payment of commissions to sales

representatives. DeFlon’s first claim of disparate compensation pertains to the

manner in which Danka calculated the commissions for new employees. When

sales representatives begin their employment, Danka provides its sales

representatives with some income protection in the form of a “guaranteed

commission” or “a promise not to drawback.” The purpose of both policies is to

provide the sales representative with a “cushion” when he or she first starts,

because it often takes months of work to close a sale. A guaranteed commission

means that the sales representative will receive a certain amount of pay in

commissions even if he or she does not sell a single piece of equipment. A

guarantee not to drawback, on the other hand, means the sales representative will

receive commissions on whatever he or she actually sells, without being penalized

with a “drawback” for failing to meet the quota. A drawback is a reduction in the

amount of commission paid to an employee in his or her next paycheck for the

failure to meet his or her quarterly quota.


                                        - 17 -
      DeFlon alleges that when she was hired she was given a base salary of

$1500 per month plus commission, with a promise that she would not receive a

drawback for the first quarter. DeFlon asserts that she was treated differently in

this respect from men. DeFlon provides evidence that when Elroy Duran

(“Duran”), Lovato, and Joe Kirvin (“Kirvin”), all male, began working at Danka,

they received a base salary, plus commissions, with a promise of a guaranteed

commission for the first 120 days. 3

      DeFlon’s second theory of disparate compensation also relates to the

payment of commissions. DeFlon asserts that although she received drawbacks,

male employees did not. Duran testified that he was supposed to receive a

drawback on one occasion but did not. DeFlon, however, allegedly received a

drawback on two occasions when she failed to meet quota.

      DeFlon asserts that this evidence is sufficient to establish a prima facie case

under Title VII of disparity in pay based on sex. The district court granted

summary judgment for Danka on this issue, reasoning that DeFlon had failed to

demonstrate a prima facie case because she did not provide any evidence that she

was actually paid less than male employees. The district court also noted that




      3
        DeFlon also argues that Smith was given a guaranteed commission at the
time he was hired. This allegation is inadmissible hearsay.

                                        - 18 -
DeFlon had not shown that she was similarly situated to the male employees who

received guaranteed commissions. We affirm the judgment of the district court.

      Although we agree with the district court, we also note that DeFlon points to

no evidence in the record indicating that this conduct occurred within the 300-day

limitations period, nor does our review reveal any evidence concerning this issue.

We therefore find that DeFlon’s Title VII disparate compensation claim is time-

barred under 42 U.S.C. § 2000e-5(e), and affirm the district court’s grant of

summary judgment to Danka on this alternate ground.

      C.     Failure to Promote Claim

      DeFlon argues that she was denied two possible promotions while employed

at Danka in violation of Title VII. These potential promotions were: (1) the

government copier sales position; and (2) the color copier sales position. With

respect to the government copier position, the record reflects that Diane Larkin

served as Danka’s government sales representative for copier sales. When Larkin

resigned in February 1996, Danka did not hire a new sales representative to fill her

position. Instead, Larkin’s accounts were split up between DeFlon, Sawyers, and

Signor. In terms of the color copier position, there is evidence that, at some

unspecified time, Danka hired a man, Leon Radszwarski, to a new position to sell

color copiers. DeFlon did not know whether this position involved an increase in

commissions or salary. Furthermore, DeFlon did not know that Danka was


                                        - 19 -
planning to hire a color copier representative and therefore did not express an

interest to anyone in the position.

      The district court granted summary judgment for Danka on both of these

claims, reasoning that: (1) Larkin’s sales territory was divided among a number of

Danka employees, and thus there was no opening available, and (2) DeFlon never

applied for the color copier sales position. We agree with the district court’s

disposition of this claim.

      A plaintiff may prove intentional discrimination through either direct

evidence of discrimination (e.g., oral or written statements on the part of a

defendant showing a discriminatory motivation) or indirect (i.e., circumstantial)

evidence of discrimination. See Shorter v. ICG Holdings, Inc., 188 F.3d 1204,

1207 (10th Cir. 1999); Elmore v. Capstan, Inc., 58 F.3d 525, 529 (10th Cir. 1995).

DeFlon offers no direct evidence of discrimination on her failure to promote claim.

We must therefore determine if there is sufficient indirect evidence for DeFlon to

survive summary judgment.

      The Supreme Court set forth the framework for assessing circumstantial

evidence of discrimination in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Under this framework, the plaintiff

initially bears the burden of establishing a prima facie case. See id. at 802. Once

the plaintiff has established a prima facie case, the burden of production shifts to


                                         - 20 -
the defendant who must articulate a facially nondiscriminatory reason for its

employment action. See id. If the defendant makes this showing, the plaintiff

must then show that the defendant’s justification is pretextual. See id. at 804.

      In order to establish a prima facie case of discriminatory failure to promote

under Title VII, a plaintiff must demonstrate: (1) there was a promotional

opportunity available; (2) the plaintiff was qualified and had established

availability for the position; (3) despite the plaintiff’s qualifications, she was not

promoted to the position; and (4) the promotional opportunity was filled. 4 See

Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1362 (10th Cir. 1997).



      4
        In Perry v. Woodward, 199 F.3d 1126, 1136-37 (10th Cir. 1999), this
court noted that some cases in this circuit have indicated that a prima facie case
of discriminatory failure to promote requires a showing that the position was
filled by someone not a member of the protected class. Compare Simms, 165
F.3d at 1328 (Title VII); Sprague, 129 F.3d at 1362 (Title VII); Thomas v.
Denny’s, Inc., 111 F.3d 1506, 1510 (10th Cir. 1997) (Title VII; § 1981); Randle
v. City of Aurora, 69 F.3d 441, 451 n.13 (10th Cir. 1995) (Title VII, § 1983, §
1981); Meredith v. Beech Aircraft Corp., 18 F.3d 890, 894 (Title VII); Kenworthy
v. Conoco, Inc., 979 F.2d 1462, 1469 (10th Cir. 1992) (Title VII); Luna v. City &
County of Denver, 948 F.2d 1144, 1147 (10th Cir. 1991) (Title VII); Gutierrez v.
Denver Post, Inc., 691 F.2d 945, 947 (10th Cir. 1982) (Title VII; § 1981); Higgins
v. Oklahoma, 642 F.2d 1199, 1201 (10th Cir. 1981) (Title VII); Nulf v. Int’l
Paper Co., 656 F.2d 553, 558 (10th Cir. 1981) (Title VII), with York v. Am.
Telephone & Telegraph Co., 95 F.3d 948, 954 (10th Cir. 1996) (Title VII);
Hickman v. Flood & Peterson Ins., Inc., 766 F.2d 422, 424 (10th Cir. 1985) (Title
VII); Mortenson v. Callaway, 672 F.2d 822, 823 (10th Cir. 1982) (Title VII);
Thornton v. Coffey, 618 F.2d 686, 690 (10th Cir. 1980) (Title VII); Mohammed v.
Callaway, 698 F.2d 395, 398 (10th Cir. 1983) (Title VII). Because we are not
required to decide this case based on the fourth prong of the prima facie case, we
decline to resolve the discrepancy on this point.

                                          - 21 -
      DeFlon’s claim that she was discriminated against when she did not receive

Larkin’s position fails on a number of levels. First, the record reflects that Larkin

quit her job in February 1996. Thus, this act occurred outside the 300-day period

of limitations and is therefore time-barred under 42 U.S.C. § 2000e-5(e). In

addition, the record reflects that no one was immediately hired to fill Larkin’s

position. Rather, Larkin’s territory was divided up among three other sales

representatives, one of whom was DeFlon. Further, there is no evidence in the

record to show that, at the time Larkin left, Larkin’s position was, in fact, a

promotion for DeFlon, and this court has found that the denial of an application

for a lateral position is not an adverse employment action under Title VII. See

Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 (10th Cir. 1998). Finally, DeFlon

ultimately received both Larkin’s position and a raise in March 1997.

      With respect to DeFlon’s claim that she was denied a promotion to the color

copier position, there is similarly no evidence demonstrating that this position was

a promotion, as opposed to a lateral transfer. DeFlon admitted, for example, that

she had no actual knowledge of whether the salary for the copier position was

higher than the salary for her fax sales position. Further, DeFlon did not establish

her availability and qualifications for that position. We thus conclude that this

claim must fail because DeFlon has failed to prove that she suffered an adverse

employment action.


                                         - 22 -
      D.     Constructive Discharge Claim

      DeFlon next argues that the district court erred in concluding that she was

not constructively discharged. Specifically, DeFlon urges that the district court

erred when it reasoned that she could not have been constructively discharged

because she had failed to establish a hostile work environment claim. She points

to the following conduct in support of this claim: (1) the shunning by Hartley and

Lovato; (2) the denial of the color copier position; (3) the incident where Grover

poached her account; and (4) the comment by Terrell that he was “backing away”

and the “finger points at you.”

      Although a plaintiff bringing a constructive discharge action typically

alleges that she was forced to resign from her job due to sex discrimination, “we

have found constructive discharge based on retributive acts that follow a complaint

of sex discrimination.” See Jeffries v. Kansas, 147 F.3d 1220, 1233 (10th Cir.

1998). “[T]he question on which constructive discharge cases turn is simply

whether the employer by its illegal discriminatory acts has made working

conditions so difficult that a reasonable person in the employee's position would

feel compelled to resign.” Derr v. Gulf Oil Corp., 796 F.2d 340, 344 (10th Cir.

1986). However, “[i]f an employee resigns of her own free will, even as a result

of the employer’s actions, that employee will not be held to have been

constructively discharged.” Jeffries, 147 F.3d at 1233. We conclude that none of


                                       - 23 -
the conduct DeFlon seeks to attribute to Danka is sufficient to meet the standard

for finding constructive discharge in this circuit, and we affirm the grant of

summary judgment to Danka on this claim.

      As an initial matter, we conclude that the district court properly granted

summary judgment to Danka on DeFlon’s constructive discharge claim associated

with the hostile work environment theory. DeFlon has not shown that a genuine

issue of material fact exists as to her hostile work environment claim, and the

hostile work environment theory therefore cannot support the constructive

discharge claim.

      In addition, even assuming the district court erred in failing to consider

DeFlon’s constructive discharge claim predicated on retaliation, DeFlon cannot

succeed on this claim because she cannot show retaliatory discrimination. To

make out a prima facie case of retaliation, DeFlon must prove:

      (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.

Sauers v. Salt Lake County, 1 F.3d 1122, 1128 (10th Cir. 1993). Although the

record reflects that DeFlon filed an EEO complaint on May 22, 1997, the

retaliatory conduct about which she complains occurred before she engaged in this




                                         - 24 -
protected activity. 5 Thus, DeFlon cannot show a causal connection between any

protected activity and the alleged retaliation. In addition, DeFlon cannot show that

any of the conduct to which she points was “adverse action.” The shunning and

Terrell’s statements, though certainly unpleasant, cannot be considered adverse

employment action. In addition, the poaching incident was rectified in March

1997–one month before DeFlon quit. Finally, there is no evidence to show that the

color copier position would have been a promotion rather than a lateral transfer.

In conclusion, DeFlon does not allege facts that are sufficient to make out a prima

facie case of retaliation. In total, she has failed to allege sufficient facts to

support a claim of constructive discharge.

II.   Equal Pay Act Claim

      A plaintiff in an EPA claim has the burden of proving the following

elements in order to make out a prima facie case under the statute: “(1) she was

performing work which was substantially equal to that of the male employees

considering the skills, duties, supervision, effort and responsibilities of the jobs;

(2) the conditions where the work was performed were basically the same; (3) the

male employees were paid more under such circumstances.” Tidwell v. Fort




      5
        DeFlon also argues in other portions of her brief that she assisted Ritchie
with the filing of an EEO complaint in March 1997. As noted above, this claim is
not supported by the record.

                                          - 25 -
Howard Corp., 989 F.2d 406, 409 (10th Cir. 1993); see also Sinclair v. Auto. Club

of Oklahoma, 733 F.2d 726, 728 (10th Cir. 1984).

      If a prima facie case is so established under the EPA the defendant
      must undertake the burden of persuading the jury that there existed
      reasons for the wage disparity. . . . These reasons are: (1) a seniority
      system; (2) a merit system; (3) a pay system based on quantity or
      quality of output; (4) a disparity based on any factor other than sex.

Tidwell, 989 F.2d at 409.

      The district court concluded that DeFlon had failed to establish a prima

facie case because there was no evidence to show that DeFlon was actually paid

less than her male counterparts. The district court held that DeFlon had only

established that a guaranteed commission is theoretically preferable to a promise

not to draw back. In addition, the district court held that DeFlon had failed to

show that she was similarly situated to the employees to which she sought to

compare herself.

      The EPA requires a plaintiff to demonstrate that she was paid at a lesser

wage rate than men for “equal work on jobs the performance of which requires

equal skill, effort, and responsibility.” See 29 U.S.C. § 106(d)(1). Although the

men to whom DeFlon seeks to compare herself were referred to as “sales

representatives” and were compensated in a similar manner to DeFlon (i.e., base

pay plus commissions), DeFlon does not demonstrate that they sold fax machines

for government accounts as she did. In addition, there is insufficient evidence in


                                         - 26 -
the record to establish that their jobs required “equal, skill, effort, and

performance” as compared to DeFlon’s position. We therefore conclude that the

district court properly granted summary judgment to Danka on this claim.

III.   Negligent Supervision and Retention Claim

       Under New Mexico law, “[a]n individual or entity may be held liable in tort

for negligent hiring, negligent supervision, or negligent retention of an employee

even though it is not responsible for the wrongful acts of the employee under the

doctrine of respondeat superior,” which makes employers liable only for

intentional wrongful acts committed by their employees. See Los Ranchitos v.

Tierra Grande, Inc., 861 P.2d 263, 269 (N.M. Ct. App. 1993). “The torts of

negligent hiring and negligent retention of an employee are based on the act or

omission of the employer,” with liability in New Mexico premised upon “the

‘knew or should have known’ standard.” See F & T Co. v. Woods, 594 P.2d 745,

747 (N.M. 1979). In sum, in order to survive summary judgment on her negligent

supervision and retention claim, DeFlon must show that a genuine issue of

material fact exists as to whether: (1) a Danka employee engaged in a wrongful act

that injured DeFlon; and (2) that Danka was negligent in supervising or retaining

that employee.

       The district court granted summary judgment to Danka on DeFlon’s

negligent supervision and retention claim, reasoning that the wrongful act on


                                          - 27 -
which it was predicated was DeFlon’s Title VII hostile work environment claim

that the district court had previously rejected. DeFlon asserts that the underlying

wrongful act was not the Title VII claim, but the common law tort of sexual

harassment. 6 She thus argues that the court should have considered all the alleged

conduct when assessing whether to grant summary judgment on DeFlon’s

negligent supervision and retention claim. We affirm the judgment of the district

court, although based on slightly different reasoning.

       Based on our finding that the district court properly granted summary

judgment for Danka on the Title VII hostile work environment claim, we agree

with the district court’s conclusion that DeFlon’s Title VII sexual harassment

claim does not provide the requisite “wrongful act” for DeFlon to survive

summary judgment on her negligent supervision claim. Further, we agree that



      6
         In her brief on appeal, De Flon argues in the alternative that the
underlying wrongful act supporting her claim of negligent supervision and
retention is the common law tort of intentional infliction of emotional distress.
For the reasons discussed in the next section, DeFlon has not established the facts
necessary to support a claim of intentional infliction of emotional distress because
the actions of which she complains are not “outrageous” as contemplated by New
Mexico common law. We therefore find that DeFlon’s negligent supervision and
retention claim cannot properly be founded upon her claims of intentional
infliction of emotional distress. Accord Phifer v. Herbert, 848 P.2d 5, 9 (N.M.
Ct. App. 1993) (noting that an intentional infliction of emotional distress claim
that is based upon allegations of sexual harassment must be based upon acts that
are “sufficiently outrageous” to be generally intolerable in civilized society),
overruled on other grounds by Spectron Dev. Lab. v. Am. Hollow Boring Co., 936
P.2d 852 (N.M. Ct. App. 1997).

                                        - 28 -
DeFlon’s claim of negligent supervision and retention predicated on common law

sexual harassment is not restricted to conduct occurring within the 300-day

limitations period for Title VII. Nonetheless, we conclude that Danka is entitled

to summary judgment because, even when taking all the allegedly wrongful

conduct into consideration, DeFlon has not demonstrated sufficient evidence of

common law sexual harassment under New Mexico law.

         Relying on Coates v. Wal-Mart Stores, 976 P.2d 999 (N.M. 1999), DeFlon

argues on appeal that New Mexico recognizes a common law tort of sexual

harassment. That may or may not be the case, as a general proposition, but DeFlon

has not established that New Mexico recognizes a tort of common law sexual

harassment based upon the facts she alleges here, which merely set forth a claim of

discrimination based upon gender. Although Coates refers to a “common law

sexual harassment tort” at one point in dicta, see id. at 1002, it is obvious that the

court was contemplating that the tort consisted of sexual groping, sexual assault

and battery or other substantial overt sexual conduct toward a female employee.

See id. at 1003. Here, we do not believe New Mexico would find that the alleged

conduct of which Danka had knowledge or should have had knowledge constitutes

the common law tort of sexual harassment or, for that matter, any other common

law tort under New Mexico law. Thus, we affirm summary judgment on that

claim.


                                         - 29 -
IV.   Intentional Infliction of Emotional Distress Claim

      The district court dismissed DeFlon’s intentional infliction of emotional

distress claim on the ground that Sawyers’ conduct could not be attributable to

Danka, and that for this reason, DeFlon had failed to show extreme and outrageous

conduct. DeFlon argues that the district court erred in dismissing the claim on this

ground. We affirm the grant of summary judgment to Danka, but on the alternate

ground that the conduct about which DeFlon complains was not sufficiently severe

to give rise to a claim of intentional infliction of emotional distress.

      Under New Mexico law, a plaintiff asserting an intentional infliction of

emotional distress claim must demonstrate that the defendant’s conduct was

“extreme and outrageous under the circumstances, that the tortfeasor acted

intentionally or recklessly, and that as a result of the conduct the claimant

experienced severe emotional distress.” Coates, 976 P.2d at 1009. An employer

may be held liable for the intentional infliction of emotional distress inflicted by

an employee. See id.

      Unlike DeFlon’s Title VII claims, there appears to be no issue in this case

concerning the statute of limitations. Thus, the district court properly stated that it

could consider all of Sawyers’ conduct and the other pre-limitations conduct

alleged by DeFlon in connection with this claim. In this case, there is evidence

suggesting that Danka had knowledge of Sawyers’ conduct by virtue of various


                                         - 30 -
complaints made by DeFlon and other women. In addition, DeFlon alleges that a

number of managers at Danka engaged in abusive conduct. Although DeFlon’s

working environment at Danka was certainly unpleasant, and there is evidence that

DeFlon’s supervisors, particularly Sawyers, acted in an inappropriate manner, we

find that the evidence of employee misconduct, even when viewed in the light

most favorable to DeFlon, was not sufficient to establish extreme and outrageous

conduct. Extreme and outrageous conduct is that which “is so outrageous in

character, and so extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly intolerable in a civilized

community.” Stieber v. Journal Pub. Co., 901 P.2d 201, 205 (N.M. 1995) (citation

and quotations omitted). We therefore affirm the grant of summary judgment to

Danka on the intentional infliction of emotional distress claim on this alternate

ground.

                                  CONCLUSION

      We AFFIRM summary judgment for Danka on all of DeFlon’s Title VII

claims (hostile work environment; disparate compensation; failure to promote;

constructive discharge), the EPA claim, and the New Mexico state law tort claims.


                                       ENTERED FOR THE COURT

                                       David M. Ebel
                                       Circuit Judge



                                        - 31 -
