                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         MAR 24 2000
                                  TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 GENEVA COKER,

          Plaintiff-Appellant,


 v.                                                     No. 99-5099
 BALL JANITOR SERVICE, INC., an                   (D.C. No. 98-CV-200-K)
 Oklahoma Corporation d/b/a Ball                        (N.D.Okla.)
 Environmental Maintenance Service,
 Inc.; SHANNON BALL, individually
 and as agent for Ball Janitor Service,
 Inc.,

          Defendants-Appellees.




                             ORDER AND JUDGMENT         *




Before BRISCOE, ANDERSON,           and LUCERO , Circuit Judges .


      Plaintiff Geneva Coker appeals from the district court’s grant of summary

judgment in favor of defendants Ball Janitor Service, Inc. (BJSI) and Shannon

Ball (Ball) on Coker’s Title VII-based claims for sexual harassment. Plaintiff

also appeals from the district court’s denial of her motion to alter or amend


      *
        This order and judgment is not binding precedent, except under the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.
judgment. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                           I.

      BJSI is an Oklahoma corporation doing business within the State of

Oklahoma. Plaintiff Coker began working as a janitor for BJSI on February 11,

1981. From that point until her departure on March 20, 1997, Coker worked the

third shift (11 p.m. to 7 a.m.) for BJSI, performing cleaning services at the Tulsa

International Airport.

      In January 1990, defendant Ball, the son of co-owner Melvin Ball and the

nephew of co-owner Brad Ball, became the third-shift supervisor. At the time,

Ball was approximately twenty-one years old and plaintiff was approximately fifty

years old. Shortly after Ball became the third-shift supervisor, plaintiff asked him

if he could give her a ride home from work. Ball agreed. It is uncontroverted

that plaintiff and Ball engaged in a sexual encounter during that car ride. The

parties differ, however, on the chain of events that precipitated the encounter.

Plaintiff alleges that during the ride she offered to do Ball a favor in return for

giving her a ride. In response, plaintiff alleges, Ball told her he wanted to “trade

out,” and proceeded to unzip his pants and pull out his penis. Plaintiff further

alleges that he asked her to “to play with” his penis, and she complied. Id. at 96-

97. Although plaintiff alleges Ball told her never to tell anyone about the

incident, she admits she never indicated to him that his conduct was unwelcome


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or inappropriate.

      Ball’s memory of the incident varies in several respects. He alleges that

during the ride, plaintiff initiated a long conversation with him concerning sexual

matters. He further alleges that, at some point during the conversation, plaintiff

indicated she would masturbate him. Accordingly, he alleges, he unzipped his

pants, removed his penis, and plaintiff masturbated him. Afterwards, he took

plaintiff home.

      It is uncontroverted that from the time of this initial encounter in January

1990 until plaintiff’s departure from employment with BJSI in March 1997,

plaintiff and Ball engaged in numerous sexual encounters in the workplace and on

the way home after work. In Ball’s estimation, he and plaintiff had more than

forty sexual encounters between 1990 and 1997. Plaintiff, on the other hand,

contends that Ball initiated sexual encounters with her at least once a week, and

sometimes twice a week, during the entire period between 1990 and 1997.

      According to plaintiff, she engaged in the sexual encounters with Ball

because he was her boss and she “was afraid [she] would lose [her] job.” Id. at

106. It is uncontroverted, however, that he never told her she would lose her job

or suffer any other adverse job consequences if she rejected his sexual advances.

It is further uncontroverted that at no time did plaintiff tell Ball that she did not

want to engage in sexual encounters with him, nor did she do anything to let him


                                            3
know that his sexual advances were unwelcome. In fact, plaintiff admitted that

she regularly asked Ball for a ride home from work when her car did not work,

even though she knew he might initiate a sexual encounter with her. Plaintiff

never complained to anyone at BJSI about the situation (she alleges she believed

her complaints would be ignored by BJSI’s human resource manager, as well as

by the co-owners of BJSI, who were Ball’s relatives). Plaintiff never requested a

transfer to another shift, nor did she look for other jobs during the period between

1990 and 1997. Finally, plaintiff gave conflicting statements regarding if and

when she experienced any emotional distress as a result of the alleged harassment.

      The parties agree that plaintiff’s last day of employment with BJSI was

March 20, 1997, but they disagree on the details of her departure. According to

defendants, plaintiff had been spreading rumors in the workplace about Ball

having a sexual relationship with another BJSI employee. In response, Ball

allegedly told plaintiff that, unless she ceased doing so, she would need to move

to another shift or find another job. Plaintiff allegedly became upset in response

to Ball’s statements. Ball then took plaintiff’s security badge (which was

necessary for entry into the airport) and asked her to leave and speak with him

when she calmed down. Plaintiff allegedly refused to leave until her shift had

ended. Upon completion of her shift, plaintiff met with Ball and BJSI co-owner

Melvin Ball. During the meeting, Melvin Ball allegedly offered to move plaintiff


                                          4
to another shift. After leaving the meeting, plaintiff encountered co-owner Brad

Ball, who allegedly admonished her for spreading rumors and told her she should

move to another shift or a different work area so that she and Ball would not have

to work together anymore. According to defendants, plaintiff never returned to

work for BJSI after March 20, 1997. Defendants further point out that in her

EEOC charge, plaintiff alleged that she quit her job with BJSI. App. at 133 (“I

resigned on March 20, 1997.”).

      In contrast to defendants’ version, plaintiff alleges that on the morning of

March 20, 1997, Ball approached her at work and told her she needed to

accompany him to the office (it is unclear from her deposition to what specific

office she was referring). Plaintiff allegedly refused to accompany him, and, in

response, he allegedly grabbed her arms and attempted to pull her to the office.

Ultimately, plaintiff alleges, he took her security badge from her and informed her

she was fired. Plaintiff acknowledges, however, that she continued to work until

the end of her shift. Plaintiff further acknowledges that she had a conversation

with Ball and Melvin Ball after the end of her shift.

      After filing a charge of discrimination with the EEOC, plaintiff filed this

action alleging claims of quid pro quo harassment and hostile work environment

harassment under Title VII, as well as state law claims for intentional interference

with a business relationship, intentional infliction of emotional distress, assault


                                          5
and battery, and negligent supervision and retention. Pursuant to defendants’

motion, the district court granted summary judgment in favor of defendants with

respect to plaintiff’s Title VII claims, and dismissed the remaining state law

claims without prejudice. Plaintiff’s motion to alter or amend judgment was

denied by the district court.

                                         II.

      On appeal, plaintiff contends the district court erred in granting defendants’

motion for summary judgment, and in denying her subsequent motion to alter or

amend judgment. We review de novo the district court’s grant of summary

judgment, applying the same standard as the district court under Fed. R. Civ. P.

56(c). See Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance

Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 120 S. Ct. 53 (1999).

Summary judgment is appropriate where no genuine issues of material fact exist

and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c). When reviewing a grant of summary judgment, we view the evidence and

draw reasonable inferences therefrom in the light most favorable to the

nonmoving party. Simms, 165 F.3d at 1326. As for the district court’s denial of

plaintiff’s motion to alter or amend judgment, we apply an abuse of discretion

standard. See Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997).

                                         III.


                                          6
        Plaintiff’s complaint, which was filed prior to the Supreme Court’s decision

in Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998), asserted distinct

claims of quid pro quo and hostile work environment sexual harassment.

Presumably, plaintiff did so because, at the time her complaint was filed, “[t]he

standard of employer responsibility turned on which type of harassment

occurred.” Id. at 2264. If a plaintiff was able to establish a claim of quid pro quo

harassment, the federal courts generally held “the employer was subject to

vicarious liability.” Id. Not surprisingly, this “rule encouraged Title VII

plaintiffs to state their claims as quid pro quo claims, which in turn put expansive

pressure on the definition” of what constituted quid pro quo harassment. Id. at

2265.

        In Ellerth, the Court downplayed the distinctions between these two court-

created categories of harassment. In particular, the Court rejected the notion that

“the categories quid pro quo and hostile work environment” are “controlling on

the issue of [an employer’s] vicarious liability.” Id. Instead, the Court indicated,

these categories are helpful only for purposes of determining whether a plaintiff

can prove she was subjected to discrimination:

        To the extent they illustrate the distinction between cases involving a
        threat which is carried out and offensive conduct in general, the
        terms [quid pro quo and hostile work environment] are relevant when
        there is a threshold question whether a plaintiff can prove
        discrimination in violation of Title VII. When a plaintiff proves that
        a tangible employment action resulted from a refusal to submit to a

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      supervisor’s sexual demands, he or she establishes that the
      employment decision itself constitutes a change in the terms and
      conditions of employment that is actionable under Title VII. For any
      sexual harassment preceding the employment decision to be
      actionable, however, the conduct must be severe or pervasive.

Id.

      Acknowledging the Court’s decision in Ellerth, we review plaintiff’s quid

pro quo and hostile work environment claims separately for purposes of

determining whether plaintiff presented sufficient evidence to survive summary

judgment on her Title VII claims.



Plaintiff’s quid pro quo claim

      As previously noted, a plaintiff can demonstrate she was subjected to

actionable discrimination under Title VII by demonstrating “that a tangible

employment action resulted from [her] refusal to submit to a supervisor’s sexual

demands.” Ellerth, 118 S. Ct. at 2265. “A defendant-employer may refute such a

claim of quid pro quo harassment in either of two ways: with proof that no

negative employment action was taken, i.e., that the employee resigned, for

example; or by establishing that the decision to terminate was made for legitimate

business reasons and not because the employee refused to submit to sexual

demands.” Smith v. Cashland, Inc., 193 F.3d 1158, 1160 (10th Cir. 1999).

      Relying exclusively on pre-Ellerth definitions of quid pro quo harassment,


                                         8
plaintiff suggests it is unnecessary for her to demonstrate either that she refused

to submit to her supervisor’s alleged sexual demands, or that a tangible

employment action resulted from any such refusal. Instead, plaintiff suggests, she

need demonstrate only that the terms of her employment were conditioned upon

her submitting to her supervisor’s sexual demands. Although plaintiff is correct

to the extent that submission to unwelcome sexual demands does not preclude a

plaintiff from prevailing under Title VII, it is clear, under Ellerth, that quid pro

quo harassment will be found to have occurred only when a tangible employment

action is taken in response to a victim’s refusal to submit to her supervisor’s

sexual advances. 118 S. Ct. at 2265. Otherwise, a plaintiff must demonstrate she

was subjected to a hostile working environment which constructively altered the

terms or conditions of her employment. See id.; see also Curry v. District of

Columbia, 195 F.3d 654, 659 (D.C. Cir. 1999) (noting that quid pro quo

harassment constitutes an explicit alteration of the terms or conditions of

employment, whereas a hostile working environment constitutes a constructive

alteration of the term or conditions of employment); Rubidoux v. Colorado

Mental Health Inst., 173 F.3d 1291, 1295 (10th Cir. 1999) (noting the terms quid

pro quo and hostile environment “serve only to distinguish between explicit or

constructive alterations to the terms or conditions of employment”).

      In passing, plaintiff alleges a tangible employment action occurred in that


                                           9
she was terminated from her employment with BJSI. There are two significant

problems with this allegation. First, the great weight of the evidence in the record

on appeal suggests plaintiff was not terminated, but instead voluntarily resigned

from her employment with BJSI. In particular, plaintiff’s account of the alleged

termination is nearly incomprehensible, and she admitted in her EEOC charge that

she resigned. Thus, we are not persuaded a rational jury could conclude, based

upon the evidence contained in the record, that she was terminated. Second, even

assuming plaintiff has presented sufficient evidence to demonstrate that her

employment was terminated, she has failed to present any evidence demonstrating

that the termination was the result of her failure to submit to Ball’s sexual

advances. Indeed, the evidence demonstrates that plaintiff submitted to most or

all of Ball’s sexual advances, and there is no evidence that the alleged termination

was precipitated by a spurned sexual advance. 1

      For these reasons, we conclude the district court properly granted summary

judgment in favor of defendants with respect to plaintiff’s quid pro quo theory of

sexual harassment.



      1
         Although plaintiff could perhaps argue that one could infer Ball was
intending to make a sexual advance when he asked her to accompany him to his
office on March 20, 1997, there is no indication in the record that plaintiff
personally believed this to be the case. Nor is there any evidence that plaintiff
refused to accompany him to the office because she did not want to engage in any
sexual conduct with him.

                                          10
Plaintiff’s hostile work environment claim

      Plaintiff can establish actionable sexual harassment under Title VII if she

demonstrates she was subjected to a hostile work environment so severe or

pervasive that it constructively altered the terms or conditions of her employment.

See Ellerth, 118 S. Ct. at 2265; Harris v. Forklift Systems, Inc., 510 U.S. 17, 20

(1993); Curry, 195 F.3d at 659. In order to survive summary judgment, plaintiff

must produce sufficient evidence to allow a rational jury to find that (1) the

alleged harassing conduct was severe or pervasive enough to create an objectively

hostile or abusive work environment, and (2) plaintiff subjectively perceived the

environment to be abusive. See Harris, 510 U.S. at 21; Smith v. Northwest Fin.

Acceptance, Inc., 129 F.3d 1408, 1412 (10th Cir. 1997).

      Analyzing these requirements in reverse order, we focus first on the

evidence pertaining to plaintiff’s subjective perception of her working

environment. Plaintiff alleges that Ball made sexual advances toward her on a

weekly or twice-weekly basis from January 1990 through March 1997. Plaintiff

admits that she acquiesced most, if not all, of the time, and did not do or say

anything to Ball to let him know his advances were unwelcome. Further, plaintiff

admitted that, during the seven-year course of this alleged conduct, she routinely

asked Ball to give her rides home from work, knowing that he might make a

sexual advance toward her. Lastly, plaintiff admitted that she told no one about


                                          11
the alleged harassment, did not ask to be moved to a different shift, and made no

attempt to look for another job. Taken together, this evidence strongly suggests

plaintiff did not subjectively perceive her working environment to be abusive.

      The only evidence indicating that plaintiff subjectively perceived Ball’s

conduct to be harassing and abusive comes from her deposition and subsequently

prepared affidavit. During her deposition, plaintiff was asked by defense counsel

“what [her] feelings [we]re about Shannon Ball and the relationship [she] had

with him.” App. at 103. In response, plaintiff said, “Well, I don’t have feelings

about that.” Id. Defense counsel followed up by asking, “Are you claiming that

you have suffered emotional distress as a result of your relationship with Shannon

Ball?” Id. Plaintiff responded “No.” Id. Later in the deposition, the following

colloquy occurred between defense counsel and plaintiff:

      Q. How would you describe your state of mind right now? I mean,
      how are you getting along?

      A. I guess emotionally distressed right now.

      Q. Well, ma’am, I thought you told me earlier in the deposition that
      you were not claiming emotional distress?

      A. I didn’t quite get your –

      Q. You have a better understanding of what emotional distress
      means now?

      A. Yes.

      Q. What does emotional distress mean to you?

                                         12
      A. I just get upset every time I have to talk about this.

      Q. Well, when did you first start getting upset about it?

      A. The morning that Shannon [Ball] told me I was fired.

Id. at 116-17. Later in the deposition, plaintiff indicated that she was, in fact,

claiming emotional distress as a result of Ball’s alleged conduct. Id. at 200. In

particular, plaintiff indicated that she had experienced “[e]mbarrassment,” “hurt,”

and “pain.” Id. When asked by defense counsel when she first began to

experience these emotions, plaintiff again responded: “The morning that Shannon

[Ball] fired me.” Id. Finally, upon subsequent questioning by defense counsel,

plaintiff stated that she began experiencing anger and worry about losing her job

in January of 1990. Id. at 203. After her deposition was transcribed, plaintiff

submitted written corrections indicating she meant to say that she began

experiencing emotional distress “The day Shannon began sexually harassing me,”

rather than “The morning that Shannon fired me.” Id. at 201. Four months after

her deposition was taken, plaintiff signed an affidavit stating: “The sexual

demands placed on me by Shannon Ball were both unwelcome and offensive.” Id.

at 254.

      Viewing this latter evidence in the light most favorable to the plaintiff, we

are unable to conclude that a rational jury could reasonably find in favor of

plaintiff on the subjective perception issue. To the contrary, we conclude a


                                          13
rational jury could find only that plaintiff engaged in a consensual sexual

relationship with Ball.

      Even assuming, arguendo, that plaintiff’s deposition testimony and

affidavit are sufficient to create a genuine issue of material fact concerning

whether she subjectively perceived the working environment to be abusive, she

has failed to present sufficient evidence to demonstrate that her working

environment was objectively hostile. Although a supervisor making 350-700

sexual advances over a seven-year period would clearly be considered objectively

hostile if the subordinate at some point took some type of action to indicate the

advances were unwelcome (e.g., refusing to engage in the proposed sexual

conduct), it is uncontroverted in this case that plaintiff literally did and said

nothing to indicate to Ball that his advances were unwelcome. To the contrary,

plaintiff admits that she engaged in sexual relations with Ball upon each request.

Because Ball’s sexual advances met with approval on each occasion, we are not

persuaded that a jury could conclude plaintiff’s working environment was

objectively hostile.

      For these reasons, we conclude the district court properly granted summary

judgment in favor of defendants with respect to plaintiff’s hostile work

environment claim.




                                           14
Denial of motion to alter or amend judgment

      Because plaintiff failed to produce sufficient evidence to survive summary

judgment on her Title VII claims, we find no basis for concluding the district

court abused its discretion in denying plaintiff’s motion to alter or amend

judgment. Indeed, plaintiff’s motion to alter or amend judgment was little more

than a rehash of her response to the defendants’ summary judgment motion.

                                         IV.

      The judgment of the district court is AFFIRMED.

                                               Entered for the Court

                                               Mary Beck Briscoe
                                               Circuit Judge




                                         15
