                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         FEB 2 2004
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 JIYAN AN,

          Plaintiff-Appellant,

 v.                                                     No. 01-2223
                                                     (D. New Mexico)
 REGENTS OF THE UNIVERSITY OF                (D.Ct. No. CIV-00-147-JP/WWD)
 CALIFORNIA, doing business as Los
 Alamos National Laboratory;
 MORTON BRADBURY; JOHN
 FOLEY,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before MURPHY, BALDOCK, and O’BRIEN, Circuit Judges.



      Ms. Jiyan An appeals the district court’s grant of summary judgment

dismissing her claims under Title VII of the Civil Rights Act against her former

employer, Regents of the University of California, d/b/a Los Alamos National

Laboratory (“Los Alamos”), and her state law claims against two individual Los


      *
        This order and judgment is not binding precedent except under the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.
Alamos employees, Mr. Morton Bradbury, Life Sciences Division Director, and

Mr. John Foley, Human Resources Case Coordinator. The district court found An

failed to establish a genuine issue of material fact as to Los Alamos’s alleged

vicarious liability or negligence. Therefore, the district court granted summary

judgment to Los Alamos on An’s federal claims and dismissed her remaining state

claims without prejudice. We exercise jurisdiction under 28 U.S.C. § 1291 and

affirm.

                                    Background

      An contracted to work for Los Alamos as a Graduate Research Assistant in

the Life Sciences Division commencing March 17, 1997. Because that job

classification required current enrollment in a graduate program and An was not

so enrolled, she was reclassified in May 1997 as an “Under Graduate Student

Post-Baccalaureate Tech.” (Appellant’s App. Vol. I at 100-01.) This position

required acceptance and enrollment in a graduate program within one year of the

change in appointment. Both job classifications involved a one-year contract with

the possibility of a one-year renewal.

      An was assigned to assist Mr. Robert Cary, a research project supervisor.

An and Cary became friendly, often lunching together. As the friendship

blossomed, Cary discussed his marital problems and sexual experiences with An,

and compared his wife’s physical attributes to An’s. An alleges these


                                         -2-
conversations made her uncomfortable, but she did not complain to Cary or

report the conversations or her concerns to anyone at work.

      An claims Cary forcibly raped her in June 1997, but again, she did not

report the encounter, allegedly due to shame and fear of losing her husband and

job. This event launched a sexual relationship that continued unreported through

March 1998. An asserts Carey forced his attentions on her and promised long-

term employment if she remained silent about their relationship.

      The relationship was briefly interrupted, however, when An’s husband

discovered An and Cary together at the Ans’ apartment in mid-November 1997.

This discovery prompted Mr. An to telephone David Chen, the group leader of the

research project, late that night. Mr. An reported the incident to Chen, stating his

wife was either having an affair or was being subjected to “something like sexual

harassment.” (Chen Dep. at 45; Appellant’s App. Vol. II at 292.) Chen advised

Mr. An to ask his wife to either talk with Chen when he returned from vacation

(scheduled to begin the next morning) or to e-mail him.

      An did not contact Chen. Instead she and her husband went to the human

resources office and reported the apartment incident to Foley. The couple told

Foley about Cary’s inappropriate comments and also complained that Cary shut

his office door when An made her reports to him; she did not reveal the sexual

relationship. After a brief investigation, Foley forwarded the matter to Bradbury,


                                         -3-
the Life Sciences Division Director.

      The Ans then met with Bradbury and his deputy director. After fifteen to

twenty minutes, they were joined by Cary. At that meeting, the Ans reiterated the

complaints made to Foley, but An specifically denied any sexual relationship with

Cary. An requested an apology from Cary and a transfer to a different work

group. Although she received the apology, the managers determined she should

continue working with Cary. However, they required he 1) refrain from

requesting An work after-hours, 2) conduct all meetings with An in the open, and

3) not engage in personal conversations with her. An agreed to this arrangement,

and on at least two occasions after this meeting assured the deputy director that

she was “okay.” (An Dep. at 149; Appellant’s App. Vol. I at 117.)

      An also had a private meeting with Chen on his return from vacation. She

again denied any sexual relationship with Cary, apologized for her husband’s call,

and requested a change of supervisor because her husband was jealous. Chen

agreed to be her formal supervisor, but they mutually agreed An would continue

to report to Cary.

      No further complaints were brought to management’s attention until An

formally complained to the human resources office on March 26, 1998. At that




                                        -4-
time she disclosed her unwanted sexual relationship. 1 Cary admitted the affair to

Chen, but asserted it was consensual. Cary was immediately placed on

investigatory leave and later placed on unpaid suspension. He was required to

undergo sexual harassment prevention training and was prohibited from

supervising female employees for two years. A letter of reprimand was placed in

his file.

       An’s employment was extended beyond the original one-year contract. At

her request, Bradbury transferred her to another division, the Chemical Sciences

and Technology Division, in July 1998. Her benefits, salary and working

conditions were unchanged. In March 1999, An was notified of her dismissal

from this division because she lacked the expertise for the project. She was

placed in a pool of students for assignment to another project. However, because

she still had not been accepted into a graduate program, as required for her job,

she was terminated in May 1999. An did not seek another position with Los

Alamos, but instead moved to Virginia.

       An filed suit against Los Alamos, Foley, Bradbury, and other defendants,

including Cary. After the claims against the other defendants were settled or

dismissed, Los Alamos, Bradbury, and Foley filed motions for summary judgment


       1
         It is uncontested that An’s disclosure closely followed Mr. Cary’s
announcement that his wife was pregnant and Ms. An’s responding threat to call
his wife and tell her about the affair.

                                         -5-
to resolve An’s claims of vicarious and direct liability for Title VII violations and

the state law claims. Following the district court’s summary judgment order and

dismissal of the remaining state claims without prejudice, An filed this appeal.

                                 Standard of Review

      We review a grant of summary judgment de novo, applying the same legal

standard as that employed by the district court. Bryce v. Episcopal Church in the

Diocese of Colo., 289 F.3d 648, 655 (10th Cir. 2002). It is only suitable to grant

summary judgment when the record “show[s] 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). Los Alamos, Foley and Bradbury have the initial

burden of showing the absence of a genuine issue of material fact. Celotex Corp.

v. Catrett, 477 U.S. 317, 325 (1986). If successful, the burden then shifts to An

to produce evidence substantiating a genuine issue of material fact. Bacchus

Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). When

reviewing summary judgment, “we view the evidence and draw reasonable

inferences therefrom in the light most favorable to the nonmoving party.” Simms

v. Okla., ex rel., Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d

1321, 1326 (10th Cir.), cert. denied, 528 U.S. 815 (1999). Applying this

standard, there are no genuine issues of material fact concerning An’s Title VII

claims and Los Alamos is entitled to judgment as a matter of law.


                                          -6-
                                      Discussion

I.    Vicarious Liability

      An contends the district court erred in finding no material issue of fact as

to Los Alamos’s vicarious liability for the actions of Cary. “An employer is

subject to vicarious liability . . . for an actionable hostile environment created by

a supervisor 2 with immediate (or successively higher) authority over the

employee.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998);

Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). The imposition of

vicarious liability is based on the relationship between the supervisor and the

employer. Although “sexual harassment by a supervisor is not conduct within the

scope of employment,” Burlington, 524 U.S. at 757, it is an intentional tort in

which the supervisor is “aided in accomplishing the tort by the existence of the

agency relation.” Id. at 759 (quoting Restatement (Second) of Agency § 219(2)

(1957)). Thus, the plaintiff need not show the employer was negligent to

establish the employer’s vicarious liability.

      Recognizing the potential hardship to employers in the unbounded

application of this rule, the Supreme Court established an affirmative defense in

Burlington and Faragher allowing an employer to avoid vicarious liability in



      2
        We assume without deciding, as did the district court, that Cary was An’s
supervisor.

                                          -7-
certain situations. The ability to raise this defense, however, is predicated on the

absence of a “tangible employment action” at the hands of the harassing

supervisor. Harrison v. Eddy Potash, Inc., 248 F.3d 1014, 1024 (10th Cir.)

(quoting Faragher, 524 U.S. at 807), cert. denied, 534 U.S. 1019 (2001). If no

tangible employment action occurred, the employer can avoid liability if it shows

by a preponderance of the evidence “(a) that the employer exercised reasonable

care to prevent and correct promptly any sexually harassing behavior, and (b) that

the plaintiff employee unreasonably failed to take advantage of any preventive or

corrective opportunities provided by the employer or to avoid harm otherwise.”

Faragher, 524 U.S. at 807.

      A.     Tangible Employment Action

      An claims the district court erred in determining she did not suffer a

tangible employment action in this case. She alleges the following constitute

tangible employment actions: (1) her job insecurity, (2) lack of promotion or

employment term renewal, and (3) undesirable reassignment to the Chemical

Sciences and Technology Division.

      “A tangible employment action constitutes a significant change in

employment status, such as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a significant change

in benefits” and “in most cases inflicts direct economic harm.” Burlington, 524


                                          -8-
U.S. at 761-62. It is “the means by which the supervisor brings the official power

of the enterprise to bear on subordinates,” and is usually “documented in official

company records, and may be subject to review by higher level supervisors.” Id.

at 762. For example, in Mallinson-Montague v. Pocrnick, 224 F.3d 1224 (10th

Cir. 2000), a bank’s loan supervisor promised job applicants he would provide

leads and help them meet goals to qualify for bonuses. Id. at 1227. After they

were hired, he conditioned the promised help upon them granting him sexual

favors. Id. at 1229. When he was refused, he retaliated by withholding leads and

disapproving many of their loans, making it impossible for them to meet their

goals, attain eligibility for bonuses, and access their loan origination fee. Id.

Because of the resulting economic injury, we held the victims had suffered a

tangible employment action as a result of the sexual harassment. Id.

      An contends the district court ignored case law when it found her job

insecurity did not fit the definition of tangible employment action. She relies

primarily on Jeffries v. State of Kan., 147 F.3d 1220 (10th Cir.1998), and Carney

v. City of Shawnee, 38 F.Supp.2d 905 (D. Kan. 1999). In Jeffries, this Court

considered whether there had been adverse employment action taken by the

employer, a necessary element of the plaintiff’s retaliation claim. 147 F.3d at




                                          -9-
1231. 3 "In recognition of the remedial nature of Title VII,” the court held “the

law in this circuit liberally defines adverse employment action." Id. at 1232.

Rather than defining a set rule regarding what constitutes an "adverse employment

action," we reaffirmed our “case-by-case approach to determining whether a given

employment action is 'adverse.'" Id. (citing Corneveaux v. CUNA Mut. Ins.



      3
          In its summary judgment order, the district court did not specifically
address An’s Title VII retaliation claim. However, we conclude there is no
question as to whether the district court’s order is a final decision on all matters
as to all parties and causes of action. See Dodge v. Cotter Corp., 328 F.3d 1212,
1221 (10th Cir.), cert. denied, 124 S. Ct. 533 (2003); G.J.B. & Assoc., Inc. v.
Singleton, 913 F.2d 824, 827-28 (10th Cir. 1990). Count I of An’s complaint,
titled “Sexual Harassment and Retaliation in Violation of Title VII,” included
both her vicarious liability and retaliation allegations, identifying several
allegations of “tangible employment actions” culminating in the adverse
employment action of retaliatory termination. In the motion for summary
judgment and in An’s response, the Title VII claim was presented as one
indistinct claim. Accordingly, the district court did not directly address An’s
termination specifically in the context of retaliation, but included it in the
discussion granting summary judgment, as to the “Title VII claim, based on
vicarious liability and employer negligence . . . .” It concluded An’s appointment
was not renewed (termination) “because the Plaintiff’s ‘background [did] not
meet the programmatic needs of CST’ . . . [and] the Plaintiff had not gained
acceptance into a college graduate program as the . . . appointment required.”
Further, it found no evidence of pretext. See Tran v. Tr. of the State Coll. in
Colo., 2004 WL 119850 at **7-10 (10th Cir. Jan. 27, 2004) (No. 02-1048) (slip
op.) (summary judgment for employer on retaliation claim appropriate when
employer articulated a legitimate, non-retaliatory reason and no evidence
supporting a reasonable inference of pretext). In dismissing An’s Title VII claim,
the district court specifically stated that the “only remaining claims” were the
state claims, which were dismissed without prejudice. Because the district court
found no facts to establish retaliation in the non-renewal of An’s contract, we
conclude that it effectively resolved all causes of action in its order granting
summary judgment.

                                        -10-
Group, 76 F.3d 1498, 1507 (10th Cir. 1996), and Berry v. Stevinson Chevrolet, 74

F.3d 980, 986-87 (10th Cir.1996)).

      In Carney, following Jeffries, the district court concluded the plaintiffs

sufficiently alleged harassment that “did affect a term, condition, or privilege of

plaintiffs' employment . . . .” 38 F.Supp.2d at 908. They showed that

noncompliance with their supervisor’s sexual requests resulted in a threat of

transfer from the detective unit to the patrol unit, a reassignment with

significantly different responsibilities and benefits. Further, the Carney plaintiffs

demonstrated transfers had been used in the past as a form of discipline. Id.

      An’s reliance on these cases is unavailing. We need not decide here

whether a tangible employment action, precluding an affirmative defense, is

equivalent to an adverse employment action, establishing a plaintiff’s prima facie

retaliation claim, because An’s allegations do not meet even the most liberal

definition of either of these terms. Her claim of job insecurity, unlike economic

harm, is intangible and difficult to assess. See Leopold v. Baccarat, Inc., 239

F.3d 243, 244-45 (2d Cir. 2001) (holding supervisor’s threats of discharge created

an actionable hostile work environment, but not a tangible employment action).

She claims “[w]hen she would not submit to [Mr. Cary’s] demands, he appeared

angry and criticized her work . . . .” (Appellant’s Br. at 20.) Such allegations do

not implicate the “official power of the enterprise,” as intended in Burlington.


                                         -11-
524 U.S. at 762. Cary’s behavior would not be found in the official records of the

company and certainly did not cause An economic harm. Id. at 761-62. Thus,

An’s subjective job insecurity does not rise to the level of tangible employment

action.

      Neither does her claim of a denial of promotion and job extension find

support in the record. As to a promotion, she never applied for one, so a denial is

unfeasible. As to the length of her tenure, An’s one-year employment contract

was extended beyond a second year and she was dismissed only for failing to gain

acceptance into a graduate program, a known condition of her employment.

Clearly, the termination of her employment was the consequence of her choice to

forego graduate studies.

      Finally, An argues, without supporting facts, that her reassignment to a

division where her education was not beneficial was the prelude to her

termination. However, it was she who requested a transfer; Bradbury simply

acceded to her request. Her salary and benefits did not change, and her

contractual employment term—one year with a possible one-year extension—was

not shortened. Id. at 761. Consequently, all of An’s claims of tangible

employment action fail. Accordingly, we next consider the first prong of the

Burlington/Faragher affirmative defense.




                                        -12-
      B.      Employer’s Reasonable Prevention and Correction of Harassing
              Behavior

      An maintains she established genuine issues of material fact regarding an

institutional failure to exercise “reasonable care to prevent and correct promptly

any sexually harassing behavior . . . .” Faragher, 524 U.S. at 807. In evaluating

this claim, we are encouraged to consider the employer’s sexual harassment

policy dissemination and enforcement. Id. Los Alamos’s policy defined sexual

harassment, gave examples of inappropriate conduct, and encouraged victims to

report unacceptable incidents to supervisors or directly to the human resources

department. The policy was printed in administrative manuals, a sexual

harassment booklet, and was included as part of all Los Alamos employees’

training. At the end of training, new employees were required to pass a test that

often contained questions about sexual harassment. In addition, an e-mail memo

about the policy was sent to all employees shortly after An was hired. She does

not challenge these facts. Thus, we conclude the sexual harassment policy and its

dissemination generally evidence appropriate efforts to prevent sexual

harassment.

      Even so, An contends Los Alamos’s specific actions were unreasonable

because it failed to: (1) discuss her concerns in private, outside of her husband’s

presence; (2) neutrally counsel her regarding the filing of a formal complaint; and

(3) follow its own policies. She points to Los Alamos’s practice when sexual

                                        -13-
harassment complaints are filed to typically pair female employees with a female

human resources representative. However, in this case, Foley met with An and

her husband when they arrived together, without an appointment, and at a time

when the majority of employees were out of the office. The Ans’ unannounced

arrival provided no opportunity to arrange an appointment with a female

employee. Moreover, An did speak outside the presence of her husband when she

met privately with Chen, and when management followed up with her on at least

two separate occasions. Despite these opportunities, not only did she fail to

reveal her sexual relationship with Cary, she expressly denied it. Finally, An

contends Foley questioned the propriety of filing a formal sexual harassment

complaint against Cary during their initial meeting. However, Foley’s single

question is insufficient, on its own, to establish Los Alamos failed to enforce its

sexual harassment policy. 4

      Similarly, Chen did not violate policy when he did not report Mr. An’s

telephone call or the apartment incident to the human resources department or to



      4
          An further complains that her allegations should have been investigated
by human resources personnel instead of Bradbury, who had little sexual
harassment training. Again, this argument is unsupported by the facts. Foley
conducted the initial investigation and compiled the facts as reported by
individuals on both sides of the complaint. Pursuant to policy, he then forwarded
his findings to Bradbury. As a result, An’s complaint was investigated by human
resources personnel, and a prompt and appropriate resolution was agreed upon by
all parties.

                                        -14-
his superiors. When Chen returned from vacation, he learned An and her husband

had already reported the incident and reached an agreement with Los Alamos as

to appropriate remedial action. Chen also spoke privately with An. She

expressed no personal concerns, but indicated further action was necessary only

because her husband was jealous. Given these unchallenged facts, there was no

logical reason for Chen to mount a more rigorous response to An’s complaint. 5

      Finally, An argues Los Alamos did not promptly respond to her initial

complaint. Again, the facts contradict this claim. The apartment incident took

place around November 19, 1997. An’s husband spoke with Chen that night, the

couple met with Foley the next week and with Bradbury and his assistant the

following Wednesday, November 26. Thus, within ten working days from the

time of the incident, all affected parties had agreed to remedial measures. This

response was prompt, reasonable and proportionate to the information provided.




      5
        An also alleges Chen should have known of the sexual harassment and
taken action because a co-worker, Paige Pardington, told Chen she thought
“something was going on” when two married individuals went to lunch together
on several occasions. (Pardington Dep. at 46-47; Appellant’s App. Vol. II at
289.) An’s conclusion that this vague comment somehow triggered notice of
sexual harassment is specious. Clairvoyance is not expected, and Los Alamos’s
sexual harassment policy quite reasonably does not require that every comment or
suspicion be reported. Brown v. Perry, 184 F.3d 388, 396 (4th Cir. 1999); see
also Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 674 (10th Cir. 1998) (“Vague,
conclusory statements do not suffice to create a genuine issue of material fact.”).

                                        -15-
        C. Employee’s Unreasonable Failure to Use Available Procedure

        Los Alamos contends, and the district court agreed, that An failed to rebut

 the inference that her nine-month delay in reporting Cary’s conduct was

 unreasonable. “[U]nreasonable failure to use any complaint procedure provided

 by the employer . . . will normally suffice to satisfy the employer’s burden under

 the second element of the defense.” Faragher, 524 U.S. at 807-08.

      An counters that her ten-month delay in divulging the sexual relationship

does not conclusively establish her actions were unreasonable. She cites to

Burlington, 524 U.S. at 748-49, where plaintiff did not report the offending

conduct for a year, and Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 60 (1986),

upholding a four-year delay as reasonable. We agree time alone is not dispositive,

but distinguish these cases from An’s circumstances. Unlike An, the employees in

Burlington and Meritor did not deliberately mislead management by reporting

lesser instances of sexual harassment and acquiesce in a resolution. See Adler, 144

F.3d at 675 (repeatedly assuring management that “everything [is] fine” will not

support an inference of knowledge of sexual harassment). Her alleged fear that

disclosure of the relationship would forfeit her family and her job is not sufficient

to overcome these facts. “A generalized fear of retaliation does not excuse a

failure to report sexual harassment.” Harrison, 248 F.3d at 1026 (quotation marks

and citation omitted). Even more so when the feared retaliation is not from the


                                          -16-
employer, but from a third party such as An’s husband. The district court correctly

concluded An failed to raise a material issue of fact as to whether she took

“reasonable care to avoid harm.” Faragher, 524 U.S. at 807.

      In sum, An has failed to present genuine issues as to any material fact

concerning vicarious liability for sexual harassment or retaliation under Title VII.

Accordingly, we affirm the grant of summary judgment on this issue.

II.   Direct Liability – Negligence

      An also asserts Los Alamos is liable for sexual harassment under a theory of

negligence. An employer can be liable for Title VII sexual harassment engaged in

by its supervisor if its negligence caused the harassment. Employer negligence is

“failing to remedy or prevent a hostile or offensive work environment of which

management-level employees knew, or in the exercise of reasonable care should

have known.” Hirschfeld v. New Mexico Corrections Dep’t, 916 F.2d 572, 577

(10th Cir. 1990) (quotation marks and citation omitted). We need spend little time

on this claim, as it requires a showing that after Los Alamos knew or should have

known of Cary’s sexual harassment, it “failed to take prompt, adequate and

effective remedial action.” Jeffries, 147 F.3d at 1229 (quotation marks and citation

omitted); Adler, 144 F.3d at 673. Los Alamos’s response was prompt, as we

previously explained. It was also adequate and effective.

      An employer will not be liable for information an employee purposefully


                                         -17-
withholds from it. Adler, 144 F.3d at 675; Faragher, 524 U.S. at 806-07. As

discussed above, An’s initial complaint was limited to Cary’s actions that made her

feel uncomfortable. The mutually agreed-upon resolution included requirements

that Cary apologize to An and her husband, that he cease inappropriate

conversation, cease his closed-door practice, and cease scheduling overtime for An.

Because An made no further complaint until March 1998, and in fact assured

management that things were “okay” (An Dep. at 149; Appellant’s App. Vol. I at

117), Los Alamos reasonably believed the remedial measures were adequate and

effective. Similarly, the response to An’s March 1998 complaint was also swift

and final. Cary was immediately placed on unpaid leave pending the investigation,

a written reprimand was placed in his personnel file, he was required to undergo

sexual harassment training, and he was prohibited from supervising female

employees for two years. There is no claim that any harassment continued after

this date. Thus, Los Alamos’s response to both complaints was prompt, adequate

and effective. Because there are no genuine issues of material fact regarding An’s

negligence claim, we affirm the grant of summary judgment on this issue.

                                    Conclusion

      The district court’s grant of summary judgment on An’s federal claims is

AFFIRMED. The dismissal of the state law claims was also appropriate. Bateman




                                        -18-
v. City of W. Bountiful, 89 F.3d 704, 709 n.5 (10th Cir. 1996).

                                       Entered by the Court:

                                       TERRENCE L. O’BRIEN
                                       United States Circuit Judge




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