                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JUN 27 2000
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

    MELANIE JO ANDERSON,

                Plaintiff-Appellant,

    v.                                                 No. 99-1361
                                                   (D.C. No. 97-S-2509)
    DILLON COMPANIES, INC., a                           (D. Colo.)
    Kansas corporation, doing business in
    Colorado as KING SOOPERS, INC.,

                Defendant-Appellee.


                            ORDER AND JUDGMENT *


Before LUCERO, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
ALLEY, Senior District Judge. **


         Plaintiff Melanie Jo Anderson appeals from a summary judgment entered

against her on claims of sexual harassment and retaliation under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and wrongful discharge

under state law. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
       The Honorable Wayne E. Alley, Senior District Judge, United States
District Court for the Western District of Oklahoma, sitting by designation.
      Plaintiff presents three issues for decision. Two issues challenge the

district court’s conclusions that plaintiff failed to demonstrate a genuine issue of

material fact for trial concerning each of her Title VII claims. The third issue

concerns an evidentiary matter, namely, exclusion of the opinion of plaintiff’s

psychological expert as evidence of the existence of a hostile work environment.

      The standards of appellate review are well settled. We review a summary

judgment decision de novo, applying the same legal standard used by the district

court. Penry v. Federal Home Loan Bank, 155 F.3d 1257, 1261 (10th Cir. 1998),

cert. denied, 526 U.S. 1039 (1999); Sprague v. Thorn Americas, Inc., 129 F.3d

1355, 1360 (10th Cir. 1997). A moving defendant is entitled to summary

judgment if the factual record and inferences favorable to the plaintiff "could not

lead a rational trier of fact to find for the [plaintiff]." Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If the plaintiff (who bears the

burden of proof) lacks sufficient evidence on an essential element of a claim, then

other factual issues concerning the claim are immaterial. Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). We review evidentiary rulings for abuse of

discretion. Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1268 (10th

Cir. 1998). Applying these standards, we find no reversible error.

      First, we have carefully reviewed the appellate record (including the

telephone message that first troubled plaintiff) and find ourselves in complete


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agreement with the district court’s decision to grant summary judgment on the

sexual harassment claim. We cannot add significantly to the district court’s

thorough analysis of facts relevant to whether plaintiff was subjected to a hostile

work environment. Simply stated, no rational juror could find that the incidents

of which plaintiff complains were severe or pervasive enough “to create an

objectively hostile or abusive work environment – an environment that a

reasonable person would find hostile or abusive . . . .” Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 21 (1993). Factual issues argued by plaintiff regarding whether

defendant properly investigated or appropriately responded to her harassment

concerns relate to another element of this claim (employer liability for a hostile

environment, see Baty v. Williamette Indus., Inc., 172 F.3d 1232, 1241-42 (10th

Cir. 1999)) and are irrelevant to the dispositive issue.

      Second, we find no abuse of discretion in the district court’s ruling that the

psychological expert’s opinion was inadmissible to show that a hostile

environment existed in plaintiff’s workplace. In addition to reasons stated by the

district court, with which we have no quarrel, the psychologist’s affidavit and

report are not probative of an objectively hostile work environment. The

psychologist reported how the alleged harassment affected plaintiff and testified

how a reasonable woman would be expected to react to the conduct that plaintiff

had described. (Appellant’s App. at 188-203, 205.) While the latter opinion


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suggests an objective view, it was based on incidents as related by and perceived

by plaintiff. By relying on plaintiff’s perception of things and incidents that

plaintiff only heard about from others, the psychologist’s opinion became skewed

by its limited basis in plaintiff’s subjective thinking, characterized by her own

expert as “bizarre ” (Appellant’s App. at 197), and lost any probative force.

      Finally, we also agree completely with the district court’s analysis of the

retaliation claim. A review of the record facts underlying this claim leads us to

conclude, as did the district court, that no rational juror could find a causal

connection between plaintiff’s harassment complaints and any adverse

employment action. Plaintiff points to purported delays in payment of accrued

vacation and sick leave and disability benefits and a reported statement by her

manager in connection with one of the delays, “Well, Melanie, this is what you

get.” (Appellant’s App. at 211.) Viewed most favorably to plaintiff, this

comment might raise an inference of a retaliatory motive for any adverse action to

which it related. The record contains no indication, however, that the delay in

vacation pay linked to the comment was such an adverse action. No fact is

presented to show that plaintiff was entitled to be paid sooner; the record shows

only that the check was not available on the day plaintiff had been told it would

be.




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      We have reviewed the parties’ summary judgment briefs, the magistrate

judge’s recommendation, plaintiff’s objections to it, the district court’s decision,

the parties’ appellate briefs, and the relevant record. Finding no error, we affirm

for substantially the same reasons stated in the district court’s May 27, 1999

Memorandum Opinion and Order.

      The judgment of the district court is AFFIRMED.

                                                     ENTERED FOR THE COURT


                                                     Wayne E. Alley
                                                     Senior District Judge




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