                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JUL 14 1999
                                 TENTH CIRCUIT
                            __________________________                   PATRICK FISHER
                                                                                  Clerk

 RENEE L. PASCOUAU,

          Plaintiff-Appellant,

 v.                                                              No. 98-1099
                                                                  (D. Colo.)
 MARTIN MARIETTA CORPORATION, d/b/a,                         (D.Ct. No. 93-K-471)
 Martin Marietta Aeronautics Group, a Maryland
 Corporation doing business in Colorado,

          Defendant-Appellee.
                        ____________________________

                             ORDER AND JUDGMENT *


Before BRORBY, HOLLOWAY, and BRISCOE, Circuit Judges.



      This case involves allegations of hostile work environment sexual

harassment and retaliation under Title VII of the Civil Rights Act of 1964 ("Title

VII"), 42 U.S.C. § 2000e     et seq. , and various common-law tort claims brought by

Appellant Ms. Renee Pascouau against her former employer, Appellee Martin

Marietta Corporation (Martin Marietta). She challenges the district court’s award


      *
          This order and judgment is not binding precedent except under the doctrines of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.
of partial summary judgment dismissing her tort claims, the court’s adverse

decisions on her remaining Title VII claims after a bench trial, and the court’s

subsequent decision to award attorney’s fees and costs to Martin Marietta. We

exercise jurisdiction under 28 U.S.C. § 1291, and affirm in part and reverse in

part.



                                   I. Background

        Ms. Pascouau began her employment as a word processor with Martin

Marietta in November 1982. In 1988, Martin Marietta transfered her to a

different position in Document Control/Defense Systems (Document Control),

where she worked until March 1991. During this time in Document Control, Ms.

Pascouau alleges various Martin Marietta     co-workers and supervisors committed

acts of sexual harassment against her that created a hostile work environment.

She claims her male co-workers and supervisors frequently engaged in lewd

discussions in the workplace about sex and their own sexual experiences. They

also brought sexually suggestive materials into the office, including pornographic

magazines and a novelty item called a “condom tree.” In addition, she claims

they used vulgar language and told dirty jokes in her presence, and called her

nicknames like “bumper” and “bullets” – names that ostensibly refer to her breast

size. She also alleges her male co-workers verbally ridiculed and belittled her,


                                           -2-
speculated about her sexual preferences, inappropriately commented about the

physical attributes of other women in her presence, and engaged in “farting

contests” and other offensive behavior in the office. Ms. Pascouau contends her

direct supervisors knew about and participated in some of these activities, and did

nothing to prevent the alleged harassment.



       In addition to this evidence of hostile work environment sexual harassment,

Ms. Pascouau claims that after she complained about the situation in her

workplace, Martin Marietta personnel failed to deal with the problem through

investigation and discipline of the offending employees. Ms. Pascouau also

alleges that her complaints to supervisors led to retaliation by other Martin

Marietta employees in the form of verbal reprimands, poor work performance

appraisals (id. at 26), offloading, 1 and demotion.



       Ms. Pascouau filed suit against Martin Marietta in 1992, bringing claims

under federal law and Colorado common law. Her final amended complaint

included allegations of hostile work environment sexual harassment, quid pro quo

sexual harassment, retaliation, and Equal Pay Act violations under Title VII, as


       1
         “Offloading” is a term used by Martin Marietta to refer to the process of leaving
a project or assignment.


                                            -3-
well as common-law claims for breach of contract, promissory estoppel, extreme

and outrageous conduct, invasion of privacy, and negligent supervision. The

district court granted Martin Marietta’s subsequent motion for partial summary

judgment on the tort claims, finding Title VII preempted her common-law claims

that were based on the same conduct. The remaining claims were heard at a

bench trial. Almost three years after the trial was completed, the court issued a

Memoradum Opinion and Order deciding in favor of Martin Marietta. Following

its decision, the district court awarded attorneys’ fees and costs to Martin

Marietta as the prevailing party.



                                    II. Discussion

      Ms. Pascouau raises numerous issues for our consideration on appeal.

First, she claims the district court erred in granting partial summary judgment for

Martin Marietta because Title VII does not preempt or subsume her state law

remedies. Second, she urges us to reverse the trial judgment because of the

district court’s unusually long delay in passing judgment, and the fact that it

based its decision on a review of the trial record which did not contain portions of

her direct testimony. Third, she claims we should reverse because, without the

missing portions of her direct testimony, she cannot present a complete record to

this court for review. Fourth, she challenges the district court’s apparent reliance


                                         -4-
on a hostile work environment standard which, when assessing the severity and

pervasiveness of the alleged hostile work environment, took into account her co-

workers’ experience and education level. Fifth, she claims the district court erred

in ruling the conduct of Martin Marietta’s employees did not constitute a hostile

work environment. Sixth, she alleges the district court incorrectly concluded

Martin Marietta did not subject her to retaliation for opposing its allegedly

unlawful employment practices. Seventh, she claims the district court abused its

discretion when it admitted illegally obtained evidence. Eighth, she asserts the

district court should not have allowed Martin Marietta to introduce evidence of

her sexual history. Finally, she contends the district court erred in awarding

attorneys’ fees to Martin Marietta because it did not find her testimony credible. 2

We ordinarily would begin by reviewing the district court’s summary judgment

rulings. However, because the district court’s resolution of the Title VII issues at

the bench trial has some impact on our analysis of the state tort claims, we leave

our discussion of the court’s partial summary judgment ruling on those state

claims until the end.


       2
         Although considered by the district court in the proceedings below, Ms.
Pascouau did not raise any of the following issues on appeal: quid pro quo theory of
sexual harassment, discriminatory failure to promote based on gender, discriminatory
unequal pay based on gender, breach of contract, and promissory estoppel. Therefore, we
consider these issues waived. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979,
984 n.7 (10th Cir. 1994) (failure to raise an issue in the opening brief waives the issue).


                                            -5-
A.    Delay in Rendering Decision and Effect of the Incomplete Record

      Ms. Pascouau claims we must automatically reverse the district court’s

decision because the court purposely and punitively delayed its decision for

almost three years after the bench trial, and then decided the case by relying on a

trial transcript which did not contain a portion of Ms. Pascouau’s direct

testimony. We disagree. Although the district court apparently requested the trial

transcripts before issuing its final ruling, that does not mean the court derived all

of its conclusions, especially those regarding the credibility of witnesses, solely

from the incomplete record. The judge deciding this case presided over the bench

trial, and presumably assessed the veracity of the witnesses and the weight of the

evidence at that time. See Green v. Branson, 108 F.3d 1296, 1305 (10th Cir.

1997) (“We assume that the district court performed its review function properly

in the absence of evidence to the contrary.”) Ms. Pascouau offers no evidence to

the contrary. Accordingly, we hold the district court did not err in rendering a

decision without the benefit of having a portion of the transcript of Ms.

Pascouau’s direct testimony.



      Ms. Pascouau contends the extended period of deliberation reflects the

judge’s desire to punish her for underestimating the time needed for trial. The

district court’s order lends some credence to this claim. However, even assuming


                                          -6-
the court’s long deliberation in this instance was punitive, Ms. Pascouau has

produced no evidence showing this delay inherently prejudiced the judge's

findings. Thus, while we are troubled by the length of time between trial and

judgment, and encourage more efficient and speedy resolution of judicial matters

whenever possible, in the absence of some showing of prejudice resulting from

the delay, we find no reversible error.   See, e.g., Petrilli v. Drechsel   , 94 F.3d 325,

328-29 (7th Cir. 1996) (refusing, in the absence of any affirmative evidence of

prejudice beyond the fact of a three-year delay, to order a new trial).



B.     Incomplete Record on Appeal

       Focusing again on the incomplete record, Ms. Pascouau asserts we must

reverse the district court’s decision because, without the missing portions of her

direct testimony, we cannot determine whether the district court erred in its

findings and conclusions. We disagree with her assessment. Ms. Pascouau’s

argument ignores the clear instruction contained in Fed R. App. P. 10(c) which

provides “[i]f the transcript of a hearing or trial is unavailable, the appellant may

prepare a statement of the evidence or proceedings from the best available means,

including the appellant’s recollection.” Under this rule, Ms. Pascouau could have

prepared a statement reiterating her direct testimony and submitted it along with

the Appellee’s objections and proposed amendments to the district court for


                                           -7-
settlement and approval. The parties then could have included the statement in

the record on appeal for our review. However, Ms. Pascouau did not avail

herself of this remedy or show sufficient cause for her inability or failure to do

so. 3 Consequently, we proceed based on the record before us, and we decline to

reverse for a new trial because of the missing testimony.



C.     Hostile Work Environment

       With regard to the resolution of her Title VII claims at the bench trial, Ms.

Pascouau asserts the district court erred (1) when it found her co-workers

conduct did not create a hostile work environment, and (2) when, in reaching this

decision, the court relied on a standard which took into account the relative

education and experience level of the perpetrators. We examine these issues

separately.




       3
         Ms. Pascouau claims she could not reconstruct her missing testimony because
she did not find out about the lost transcript until over two and a half years had gone by.
However, we find it difficult to believe the passage of time caused her to completely
forget the substance of her testimony at trial, and rendered her unable to assist her
attorney in recapitulating her prior statements. In short, we do not find Ms. Pascouau’s
claimed loss of memory excuses her failure to utilize the remedy available under Fed. R.
App. P. 10(c).


                                            -8-
       1.     Hostile Work Environment Standard

       As for Ms. Pascouau’s dispute over the standard the district court used to

assess her hostile work environment claim, we agree that if, in fact, the district

court’s decision hinged solely on consideration of the experience and education

of her co-workers, the court committed error. The standard applicable to hostile

work environment claims is well-settled. The plaintiff must show “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."          Harris v. Forklift Systems, Inc   .,

510 U.S. 17, 21 (1993) (citations and internal quotation marks omitted);          Penry v.

Federal Home Loan Bank , 155 F.3d 1257, 1261 (10th Cir.1998),             cert. denied ,

119 S. Ct. 1334 (1999). The court must focus on both an objective and

subjective analysis of the work environment with consideration given to “all the

circumstances,” Harris 510 U.S. at 23; Smith v. Northwest Fin. Acceptance, Inc              .,

129 F.3d 1408, 1413 (10th Cir.1997), and “the social context in which particular

behavior occurs and is experienced by its target.”       Oncale v. Sundowner Offshore

Serv. Inc ., 523 U.S. 75, ___, 118 S. Ct. 998, 1003 (1998).



       The court’s Memoradum Opinion and Order states in part that it found “in

their totality, the speech, jokes and conduct of the employees in the Document


                                            -9-
Unit were consistent with their level of education and experience and, as such,

constituted a work environment that was not so severe and pervasive as to alter

Plaintiff’s conditions of employment so as to violate Title VII.” Although Ms.

Pascouau asserts that the court’s apparent reliance on education and experience

level is impermissible, we do not believe the district court erroneously rested its

decision solely on the education and experience level of the perpetrators.

Instead, a review of the court’s findings shows it merely considered the education

and experience of the employees in Document Control as two of the many factors

affecting the social context in which the allegedly offensive behavior occurred.

Moreover, Ms. Pascouau ignores the fact that in the opening paragraph of its

findings of fact and again in its conclusions of law, the district court stated the

proper criteria for assessing a hostile work environment – complete with citations

to appropriate Supreme Court authority. Given these repeated references to

accepted legal standards and the court’s overall analysis, we do not believe the

district court relied on any improper criteria to assess the work environment.



      2.     Hostile Work Environment Findings

      Ms. Pascouau also claims the district court erred in concluding the

evidence did not show hostile work environment sexual harassment. Because the

Title VII claims in this case already have been fully tried, we review the district


                                         -10-
court’s findings of fact only for clear error.      David v. City & County of Denver   ,

101 F.3d 1344, 1359 (10th Cir. 1996),       cert. denied , 118 S. Ct. 157 (1997);

Fed.R.Civ.P. 52(a). We accept the findings of the district court unless they are

without support from the record, or unless, after reviewing all of the evidence,

we are left with the definite and firm conviction that a mistake has been made.

See Hicks v. Gates Rubber Co.,      928 F.2d 966, 971 (10th Cir. 1991). Whether

this court would have made the same decision is not the issue. “We cannot

reverse simply because we might have decided the case differently.”          Id.



       Ms. Pascouau raises several arguments contesting the district court’s

findings. She initially challenges the court’s reliance on the testimony of other

women employees to establish that the harassment was not sufficiently severe to

constitute a hostile work environment. She claims the women’s testimony

contradicts the court’s findings, and argues the court erred when it stated that one

of the female witnesses testified that Ms. Pascouau openly joked about her own

breast size with other employees, when, in fact, the witness only said joking

occurred in the workplace on a daily basis and she could not specifically

remember Ms. Pascouau joking about her own breasts. We disagree with Ms.

Pascouau’s assessment and find the other women’s testimony, taken as a whole,

supports the district court’s conclusions. The other women co-workers, whose


                                             -11-
testimony Ms. Pascouau cites as contradicting the district court’s findings, stated

they did not find the Document Control working environment sexually harassing

or offensive, nor did Ms. Pascouau ever express to them any complaints she had

about sexual harassment. Even though the court may have mistakenly stated the

substance of a portion of the testimony of one witness to support a point in its

Memoradum Opinion and Order, that error alone does not merit reversal of a

decision based on over a week of extensive evidence presented by the parties.

See Nulf v. International Paper Co.   , 656 F.2d 553, 561 (10th Cir.1981) (holding

defects and inconsistencies in individual findings by the trial court that are so

minor that they could not have been relevant to the outcome do not merit

reversal).



      Ms. Pascouau further claims the district court did not adequately consider

the fact that all of the women in Document Control complained about the “farting

contests” that occurred, and found the conduct offensive. She admits the district

court correctly decided the conduct is offensive irrespective of gender, but argues

the court should not have refused to consider it as some evidence of generally

offensive conduct and divisive behavior along gender lines. We conclude the

district court properly refused to consider the “farting contests” as evidence of a

hostile work environment. Although offensive, this conduct is clearly not


                                         -12-
harassment on the basis of gender – even when viewed in concert with other

conduct Ms. Pascouau claims is sexually harassing.    See Stahl v. Sun

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



      Ms. Pascouau also claims the district court improperly characterized her

sexual harassment allegation as “secondary” to her equal pay and promotion

complaint, and incorrectly found that she did not complain to the human

resources supervisor about vulgar joking in the office. We agree with Ms.

Pascouau that whether her sexual harassment complaint was secondary to other

complaints is immaterial, and the record evidence appears to support her

argument that she did make some complaint about the joking occurring in

Document Control. Nevertheless, these arguments do not affect our evaluation of

the district court’s treatment of Ms. Pascouau’s hostile work environment claim.

The record shows the court thoroughly considered her sexual harassment claims

and plainly acknowledged the fact that some vulgar joking occurred in the

workplace, but not to a degree sufficient to create a sexually harassing hostile

work environment. In light of the court’s obvious consideration of her

harassment claim and the vulgar joking, its characterization of her harassment


                                         -13-
claim as “secondary” and its failure to acknowledge that she complained about

the joking to a supervisor does not render its overall hostile work environment

decision infirm.



      In another argument, Ms. Pascouau contends the district court made no

specific findings about whether the lewd talk by the men in Document Control

alone was sufficiently severe or pervasive to alter the working environment. This

argument is also unavailing in light of the court’s overall inquiry, which took

into account “the coarse language, joking, and other inappropriate and immature

behavior,” in deciding her hostile work environment claim.



      Ms. Pascouau also asserts the district court erred in discounting the

significance of the presence of pornographic magazines in the workplace,

because the evidence shows she knew about the magazines and expressed shock

when she discovered them. Again, we are persuaded the district court fully

considered this evidence and correctly found that, although inappropriate for the

workplace, because the magazines were not openly displayed, nor were

employees involuntarily subjected to viewing them, their presence did not

contribute to the creation of a hostile work environment.




                                        -14-
       Finally, Ms. Pascouau faults the district court for concluding that because

she may have joked with other employees about her breast size and used some

vulgar language, she invited the use of sexually-suggestive nicknames, vulgar

language, and derogatory remarks referring to her breast size by her male co-

workers. We agree that a plaintiff’s participation in some lewd joking and

isolated use of vulgar language does not mean that others in the workplace may

then freely engage in what would otherwise constitute sexually harassing

behavior toward him or her. However, we again emphasize that the district

court’s analysis of hostile work environment claims does not turn exclusively on

the nature of certain isolated incidents, but on the totality of the circumstances.

Harris, 510 U.S. at 23. The factfinder must assess 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.”    Oncale , 523 U.S. at ___, 118

S. Ct. at 1003. The analysis requires the exercise of “[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.”   Id. Under this standard, even though some

inappropriate comments and conduct occurred, the court could still find these




                                          -15-
acts did not create a sexually harassing hostile work environment.      4




       Having reviewed each of Ms. Pascouau’s challenges, we find no

meaningful instance where the district court’s decision is unsupported in fact or

merits reversal. The court's findings, although not comprehensive, are adequate

to inform us of the factual basis for its decision, and we recognize no grounds for

concluding that the court proceeded under an erroneous view of the law or failed

to give Ms. Pascouau's evidence proper consideration. Although the behavior

exhibited in Ms. Pascouau’s workplace was plainly boorish, insensitive, and

inappropriate, the district court permissibly found the conduct did not rise to the

level of actionable hostile work environment sexual harassment under Title VII.



D.     Retaliation

       Ms. Pascouau also claims she suffered retaliation from her department

supervisor and co-workers following repeated complaints she made to Martin



       4
          Ms. Pascouau also challenges the district court for failing to acknowledge Martin
Marietta’s negligent mishandling of her hostile work environment complaint, and
mistakenly construing the company’s offer of another position as a sufficient remedial
measure. However, in light of the court’s finding that Martin Marietta never subjected
Ms. Pascouau to actionable hostile work environment sexual harassment, we need not
reach the subsidiary issues of whether Martin Marietta negligently handled her complaint
or failed to take adequate remedial steps.


                                           -16-
Marietta personnel responsible for Equal Employment Opportunity compliance,

and the district court improperly decided this claim by ignoring all of the adverse

actions against her except Martin Marietta’s decision to off-load her from

Document Control. Again, we emphasize that when a Title VII case has been

fully tried, we review the district court's ultimate finding of no retaliation for

clear error. Curtis v. Oklahoma City Pub. Schls. Bd. of Educ      ., 147 F.3d 1200,

1217 (10th Cir. 1998). “If there are two permissible views of the evidence, the

fact-finder's choice between them cannot be clearly erroneous."      Id. (internal

quotation marks and citation omitted). We must give due regard to the district

court's firsthand opportunity to judge the credibility of the witnesses and weigh

the evidence presented. Fed. R. Civ. P. 52(a);    Ebert v. Lamar Truck Plaza , 878

F.2d 338, 338 (10th Cir.1989).



      Our review of the record establishes there was evidence supporting the

court's finding of no retaliation. Martin Marietta presented evidence at trial to

support its assertion that the decision to off-load Ms. Pascouau was based on the

business necessity created by overall downsizing and budget cuts, not in

retaliation for her complaints. The evidence also establishes that Martin Marietta

made decisions about which employees to off-load based on non-discriminatory

factors like job performance, unit chemistry, and work history. We find the trial


                                          -17-
court reasonably inferred from the evidence that Martin Marietta’s decision to

off-load Ms. Pascouau was based on non-discriminatory motives, not in

retaliation for complaining to Martin Marietta supervisors.



      Although Ms. Pascouau further claims retaliation based on “all of the other

patently adverse incidents leading up to the off-load, and ... demotion ‘offer,’”

she cites nothing in the record to substantiate her claims. In the absence of

essential record references in Ms. Pascouau’s opening brief, we will not address

her contentions or sift through the record to find support for her arguments.

S.E.C. v. Thomas , 965 F.2d 825, 827 (10th Cir. 1992). Consequently, we affirm

the district court's ruling on Plaintiff's Title VII retaliation claim.



E.    Evidentiary Rulings

      Ms. Pascouau contends the district court made two erroneous evidentiary

rulings during the trial that merit reversal and remand for retrial. First, she

claims the court erroneously permitted Martin Marietta to introduce prejudicial,

illegally-obtained evidence from a confidential Personal Security Questionnaire.

Martin Marietta sought to use the information from the questionnaire in support

of an after-acquired evidence affirmative defense showing Ms. Pascouau

submitted false information about her past use of illicit drugs during the process


                                           -18-
of obtaining security clearance from the government, and therefore would not

have been retained in her position in Martin Marietta’s classified or restricted

access program in any event. Second, Ms. Pascouau contends the trial court

erroneously refused to exclude prejudicial evidence of her past sexual history.



      We review the district court's decision to exclude or admit evidence under

an abuse of discretion standard.   Sanjuan v. IBP, Inc. , 160 F.3d 1291, 1296 (10th

Cir. 1998). The “trial court's decision will not be disturbed unless [we] [have] a

definite and firm conviction that the lower court made a clear error of judgment

or exceeded the bounds of permissible choice in the circumstances."      McEwen v.

City of Norman , 926 F.2d 1539, 1553 (10th Cir. 1991) (internal quotations

omitted). In bench trials "questions raised relative to the admission or exclusion

of evidence ... become relatively unimportant,” because the rules of evidence

relating to admission and exclusion of evidence are “intended primarily for the

purpose of withdrawing from the jury matter which might improperly sway the

verdict.” United States v. Norman T. , 129 F.3d 1099, 1107 (10th Cir. 1997)

(quotation marks and citations omitted),    cert. denied , 118 S. Ct. 1322 (1998). In

fact, we have held that “where a cause was tried before the court without a jury,

it will be presumed on appeal that ... the court considered only competent

evidence and disregarded that which was incompetent.”       Id. (quotation marks and


                                           -19-
citation omitted).



      Both Ms. Pascouau’s arguments pertaining to the admission of evidence

are unavailing. In her first claim, the evidence she alleges the district court

erroneously admitted relates to Martin Marietta’s after-acquired evidence

affirmative defense. Because the district court found Martin Marietta did not

retaliate against Ms. Pascouau or subject her to a hostile work environment, the

trial court did not need to examine the merits of Martin Marietta’s affirmative

defense. Likewise, our decision to affirm the district court’s conclusions on

appeal makes it unnecessary for us to examine affirmative defenses or the court’s

treatment of evidence supporting those defenses.    See Cannon Oil & Gas Well

Serv., Inc. v. Evertson , 836 F.2d 1252, 1257 (10th Cir. 1987) (ruling that in light

of the jury’s finding for the defendant on the merits, and the court’s finding of

sufficient evidence to support the findings, the issue of the trial court’s handling

of the affirmative defenses is moot).



      As for the district court’s decision to admit evidence of Ms. Pascouau’s

sexual history, we assume without deciding the district court erroneously allowed

the introduction of evidence of her sexual history without requiring proper




                                          -20-
compliance with Fed. R. Evid. 412.     5
                                           Nevertheless, we find any error was

harmless. “Evidence admitted in error can only be prejudicial if it can be

reasonably concluded that ... without such evidence, there would have been a

contrary result."   Sanjuan 160 F.3d at 1296 (quotation marks and citations

omitted). Ms. Pascouau points to no particular instances in the record where the

district court admitted prejudicial sexual history testimony over her objection.

An examination of the record and district court findings persuades us that

excluding the evidence Ms. Pascouau challenges would not have changed the

result. Indeed, the district court’s findings reveal no meaningful reliance on any

of the sexual history evidence Martin Marietta presented. The court’s only

reference to Ms. Pascouau’s sexual history is a passing comment in its

recapitulation of expert psychiatric testimony about the effect of her past

unsuccessful intimate relationships. Accordingly, we decline to reverse on this



       5
         Ms. Pascouau correctly notes the court may only admit evidence offered to prove
the sexual behavior or predisposition of any alleged victim of sexual misconduct if its
proponent satisfies the "balancing test" articulated in Fed. R. Evid. 412(b)(2). In addition,
Fed. R. Evid. 412(c) requires the proponent to follow certain procedures in order to
determine the admissibility of evidence proffered under the rule – including filing a
written motion at least fourteen days before trial that specifically describes the evidence
and states the purpose for which it is offered. Fed. R. Evid. 412(c)(1)(A). The trial court
must then conduct an in camera hearing and afford the victim and parties a right to attend
and voice any objections. Fed. R. Evid. 412(c)(2). In this case Martin Marietta
admittedly failed to follow these procedures, yet the court still allowed the presentation of
sexual history evidence.


                                            -21-
basis.



F.       Attorneys’ Fees

         Ms. Pascouau asserts the district court improperly awarded attorneys’ and

expert witness fees to Martin Marietta as the prevailing party.     See 42 U.S.C.

§ 2000e-5(k). We ordinarily review the court’s decision regarding attorneys’ fees

for an abuse of discretion.   Mares v. Credit Bureau of Raton     , 801 F.2d 1197,

1201 (10th Cir.1986). In this case, however, our review is somewhat

complicated by the fact the district court granted Martin Marietta’s motion for

attorneys’ and expert witness fees, and its motion to amend the order granting the

fees, without expressing reasons for its decision. We are left to presume the

court agreed with and based its decision on the arguments set forth in Martin

Marietta’s original motion.



         The Supreme Court instructs that “a district court may in its discretion

award attorney’s fees to a prevailing defendant in a Title VII case upon a finding

that the plaintiff’s action was frivolous, unreasonable, or without foundation,

even though not brought in subjective bad faith.”      Christiansburg Garment Co. v.

Equal Employment Opportunity Comm’n,          434 U.S. 412, 421 (1978);   see also,

Jane L. v. Bangerter , 61 F.3d 1505, 1513 (10th Cir. 1995). Martin Marietta’s


                                           -22-
primary contention in the original motion requesting attorneys’ and expert

witness fees was that because the court did not find Ms. Pascouau’s testimony

credible, the court should consider her claim frivolous. We do not agree. A

review of the record persuades us that Ms. Pascouau’s lawsuit was not frivolous,

unreasonable or without foundation. Although the district court ultimately

rejected her claims and discredited her testimony, such findings alone do not

mean her lawsuit was devoid of any legitimacy. On the contrary, the issues and

evidence presented in this case called for careful consideration of several

questions at trial, especially with regard to the severity and pervasiveness of the

alleged sexually-harassing conduct in the workplace. Consequently, we find the

court abused its discretion in awarding attorney’s and expert witness fees to

Martin Marietta and revrse the award.    6




G.     Partial Summary Judgment on State Law Claims

       We review de novo the district court’s decision to award partial summary

judgment, employing the same legal standard as the district court and construing

the factual record and the reasonable inferences therefrom in the light most

favorable to the party opposing summary judgment.          See Kaul v. Stephan , 83 F.3d


       6
         Having decided to reverse the district court’s award of attorney’s fees on other
grounds, we need not reach the issue raised by Ms. Pascouau regarding the retroactive
application of the expert witness fees provision of 42 U.S.C. § 2000e-5(k).

                                             -23-
1208, 1212 (10th Cir. 1996). Summary judgment is appropriate if the record

shows “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). An issue of

material fact is genuine only if a party presents facts sufficient to show that a

reasonable jury could find in favor of the nonmovant.    Anderson v. Liberty

Lobby, Inc. , 477 U.S. 242, 248 (1986).



      In its order granting partial summary judgment for Martin Marietta on Ms.

Pascouau’s claims of outrageous conduct, negligent supervision, and invasion of

privacy, the district court ruled that the federal statutory scheme under Title VII

preempted these state tort law actions. The court reasoned that because the state

claims were based on the same conduct as the alleged employment

discrimination, permitting Ms. Pascouau to proceed on those claims would allow

her to circumvent the “administrative and remedy restrictions of Title VII.”



      We disagree with the district court’s preemption analysis. Section 708 of

Title VII, 42 U.S.C. § 2000e-7, makes it plain Title VII does not “exempt or

relieve” defendants from any “liability” or “duty” of state law unless such law

requires or permits “the doing of any act which would be an unlawful

employment practice” under Title VII. Accordingly, the test for determining if


                                          -24-
Title VII preempts state law is whether the state law permits employment

practices that violate or contradict Title VII.      See California Fed. Sav. & Loan

Ass’n v. Guerra, 479 U.S. 272, 290-91 (1987). Federal law generally preempts

state law only in cases where "compliance with both federal and state regulations

is a physical impossibility,"   Florida Lime & Avocado Growers, Inc. v. Paul       , 373

U.S. 132, 142-43 (1963), or the state law “stands as an obstacle to the

accomplishment and execution of the full purposes and objectives of Congress."

Hines v. Davidowitz , 312 U.S. 52, 67 (1941).         Guerra makes it plain that Title

VII does not manifest Congress’ intent to “‘occupy the field’ of employment

discrimination law,” 479 U.S. at 281, especially in cases like this, where the state

tort claims Ms. Pascouau made merely augment her federal claims and do not

conflict with the provisions of Title VII or prevent the accomplishment of its

purposes. See Hirase-Doi v. U.S. West Communications, Inc           . 61 F.3d 777 (10th

Cir. 1995) (implicitly deciding Title VII does not preempt state tort claims by

considering without objection both an employee’s state tort and Title VII claims

against her employer). Consequently, we hold the district court should not have

granted summary judgment on this basis.           See, e.g., Alexander v. Gardner-Denver

Co. , 415 U.S. 36, 48-49 (1974) (“[T]he legislative history of Title VII manifests

a congressional intent to allow an individual to pursue independently his rights

under both Title VII and other applicable state and federal statutes.”).


                                             -25-
       However, this conclusion does not end our analysis. “We are free to affirm

a district court decision on any grounds for which there is a record sufficient to

permit conclusions of law, even grounds not relied upon by the district court.”

United States v. Sandoval , 29 F.3d 537, 542 n.6 (10th Cir. 1994). In this

instance, then, we may look beyond the preemptive effect of Title VII and

examine the sufficiency of Ms. Pascouau’s state tort claims in light of relevant

findings and conclusions from the bench trial. Our analysis of the state tort

claims may go beyond a de novo review of the record before the district court at

the time it considered the motion for summary judgment and examine the

potentially dispositive effects of the district court’s ultimate Title VII factual

findings on the previously dismissed state claims, because the state tort actions

dismissed on summary judgment rely on essentially the same conduct as the

federal Title VII claims adjudicated at the subsequent trial.   7




       1.     Outrageous Conduct / Intentional Infliction of Emotional Distress

       Colorado law sets a high standard for outrageous conduct claims. In order

to prove outrageous conduct or intentional infliction of emotional distress, the

behavior must be “so    extreme in degree, as to go beyond all possible bounds of


       7
          Ms. Pascouau expressly admits she relies on the same evidence to support both
her Title VII and state common-law claims.


                                            -26-
decency, and ... be regarded as atrocious, and    utterly intolerable in a civilized

community." Coors Brewing Co. v. Floyd , 1999 WL 9769 *4 (Colo. Jan. 11,

1999) (en banc) (quotation marks and citation omitted & emphasis added). The

"defendant's conduct must be more than unreasonable, unkind or unfair; it must

truly offend community notions of acceptable conduct."       Grandchamp v. United

Air Lines, Inc. , 854 F.2d 381, 383 (10th Cir. 1988) (applying Colorado law),      cert.

denied , 489 U.S. 1080 (1989). Simply stated, "liability ... does not extend to

mere insults, indignities, threats, annoyances, petty oppressions, or other

trivialities." Restatement (Second) of Torts § 46, cmt. d (1965).



       Thus, as a threshold matter, we examine all the evidence before the district

court in the light most favorable to Ms. Pascouau and determine whether any

reasonable juror could find the conduct she complains of meets the high standard

set forth in Coors . We conclude the comments made toward her and the conduct

of her co-workers, although sexually explicit, immature, and rude, were not

“egregious” enough for any reasonable juror to find they constitute outrageous

conduct. Coors , 1999 WL 9769 *3. For this reason, we affirm summary

judgment on Ms. Pascouau’s outrageous conduct claim.



       2.     Negligent Supervision


                                           -27-
      Colorado law recognizes the tort of negligent supervision, holding “[a]n

employer may ... be subject to liability for negligent supervision if he knows or

should have known that an employee's conduct would subject third parties to an

unreasonable risk of harm."    Moses v. Diocese of Colo. , 863 P.2d 310, 329 (Colo.

1993) (quotation marks and citation omitted).,   cert. denied , 511 U.S. 1137

(1994).



      In support of her negligent-supervision claim, Ms. Pascouau argues that

Martin Marietta has a duty under Title VII, Equal Employment Opportunity

Commission rules, and its own internal policies and procedures to properly

supervise its agents and investigate, remediate, and discipline instances of sexual

harassment and retaliation. She contends Martin Marietta breached its duty by

allowing her co-workers and various supervisors to engage in continuing acts of

harassment and retaliation against her.



      We find these allegations insufficient to support a negligent-supervision

claim in light of the district court’s findings in this case. After having the

opportunity to prove her Title VII claims at trial, Ms. Pascouau was unable to

establish that Martin Marietta employees sexually harassed her, subjected her to a

hostile work environment, or caused her harm or injury as a result of their


                                          -28-
conduct. Because an element of Ms. Pascouau’s negligent supervision claim –

having been subjected to an unreasonable risk of harm – was dependent on the

proof of the same conduct and injury as she alleged in support of her Title VII

claim, the failure of her Title VII claim renders her negligent supervision claim

legally deficient as well. We therefore affirm summary judgment on this claim.



       3.         Invasion of Privacy

       The final pre-trial order sets out Ms. Pascouau’s claims for invasion of

privacy, including: (1) “false light” based on Martin Marietta employees’ alleged

false statements about her mental stability and sexuality, and the retributive

removal of her security access and clearance in a way that falsely indicated to

others that she committed a security breach; and (2) “intrusion into seclusion”

based on the same factual allegations of sexual harassment supporting her Title

VII claims.   8
                  We examine these claims in turn.


       8
         In a later Motion for Reconsideration – in which Ms. Pascouau requested the
court’s permission to amend her complaint – she attempted to bolster her invasion of
privacy claim and separate it from the facts underlying her discrimination claims by
asserting Martin Marietta collected and possessed inherently private information about
her and other employees without their consent. The district court denied this motion for
reconsideration and the request to amend. Thus, our consideration of those additional
allegations on appeal is limited to a review of the district court’s decision to deny the
motion. Although Ms. Pascouau raised the issue of the court’s refusal to grant her leave
to amend in her Notice of Appeal, she waived the argument by not presenting or
developing it in her opening brief. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d
979, 984 n.7 (10th Cir. 1994).

                                           -29-
       In order for Ms. Pascouau to prevail under Colorado law for false light

invasion of privacy, she must show she “was         placed before the public   in a

‘false-light’ and that it was done with knowledge of its falsity or in reckless

disregard of the truth.”   McCammon & Assoc., Inc. v. McGraw-Hill Broadcasting

Co. , 716 P.2d 490, 492 (Colo. Ct. App. 1986) (emphasis added);          see Restatement

(Second) of Torts § 652E (1977)). The element of publicity is critical to this

cause of action.   See Restatement (Second) of Torts § 652E cmt. a. Restatement

(Second) of Torts § 652D cmt. a, defines publicity as making a matter public “by

communicating it to the public at large, or to so many persons that the matter

must be regarded as substantially certain to become one of public knowledge.”



       We hold as a matter of law Ms. Pascouau’s allegations and supporting

evidence presented to the district court prior to summary judgment do not fulfill

this essential “publicity” element of false light invasion of privacy. Even if we

assume Martin Marietta employees called her sexually suggestive names,

ridiculed her, and implied Ms. Pascouau posed a security risk, she made no

allegation and presented no evidence to show that Martin Marietta or its agents

engaged in such conduct or disseminated private information that placed her in a

false light before a public audience more extensive than her relatively small

circle of co-workers in Document Control.          See also Ozer v. Borquez , 940 P.2d


                                            -30-
371, 377 (Colo. 1997) (en banc) (publicity “requires communication to the public

in general or to a large number of persons, as distinguished from one individual

or a few”). Without some evidence showing the requisite publicity, her claim of

false light invasion of privacy is deficient. Accordingly, we affirm summary

judgment on this claim.



       As for Ms. Pascouau’s “intrusion into seclusion” invasion of privacy claim,

Colorado law requires her to show that another person “has intentionally

intruded, physically or otherwise, upon [her] seclusion or solitude,” and that a

reasonable person would consider such intrusion offensive.       Doe v. High-Tech

Inst., Inc ., 972 P.2d 1060, 1065 (Colo. Ct. App. 1998) (citing Restatement

(Second) of Torts § 652B (1981)). In the usual case, intrusion into seclusion

involves physical intrusion into a place where a plaintiff has secluded herself –

such as a defendant forcing his way into the plaintiff’s home.    See Restatement

(Second) of Torts § 652B cmt. b. However, intrusion into seclusion may also

occur by the use of the physical senses to oversee or eavesdrop on the plaintiff's

private affairs.   Id.



       In the present case, Ms. Pascouau alleges no independent facts supporting

her intrusion into seclusion claim. Instead, she merely includes by reference the


                                           -31-
conduct underlying her Title VII claims. A review of the allegations and

evidence Ms. Pascouau proffers does not show Martin Marietta and its employees

pried or intruded without consent into her private life and seclusion either

physically or by other means. Even if we assume, as Ms. Pascouau argues, that

her co-workers bothered her with inappropriate, prying questions about her sex

life and sexual preferences, such conduct alone does not support a claim for

intrusion into seclusion. The sexually suggestive questions were only requests

for information. The tort of intrusion into seclusion requires more than a mere

inquiry that reveals nothing; liability attaches only to an   unconsented invasion

through physical or other means that actually gleans private information.      See

High-Tech Inst. , 972 P.2d at 1065 (“intrusion upon seclusion focuses on the

manner in which information that a person has kept private has been obtained”).

For these reasons, Ms. Pascouau fails to support an action for intrusion into

seclusion invasion of privacy. Thus, we affirm summary judgment on this claim.



                                             III.

       For the foregoing reasons, we      AFFIRM the district court’s ruling in part.

We REVERSE and REMAND with directions to vacate the order awarding

attorney and expert witness fees to Martin Marietta.

                                           Entered by the Court:


                                             -32-
WADE BRORBY
United States Circuit Judge




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