                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                               FEB 3 1998
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 GINA F. MYERS,

          Plaintiff-Appellant,

               v.
                                                           No. 96-7127
 LeFLORE COUNTY BOARD OF                               (D.C. No. 96-CV-188)
 COMMISSIONERS, also known as                              (E.D. Okla.)
 Board of County Commissioners of
 LeFlore County, Oklahoma,

          Defendant-Appellee.




                             ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL, and BRISCOE, Circuit Judges.


      Plaintiff Gina Myers appeals the district court’s grant of summary judgment

in favor of defendant LeFlore County Board of Commissioners on her claims

under Title VII and the Equal Pay Act of 1963 for sexual harassment, sexual

discrimination, retaliation, and unequal pay. We exercise jurisdiction pursuant to

28 U.S.C. § 1291 and affirm.


      *
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      Myers was hired in April 1994 as a truck driver for LeFlore County. Her

immediate supervisor was Leonard “Butch” Steelman, but Freddie Cox, county

commissioner for District 3 in LeFlore County, had ultimate supervisory authority

over all county employees. Myers’ employment was terminated on September 8,

1995, and she filed this action against the Board.

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

applying the same standard used by the district court under Fed. R. Civ. P. 56(c).

V-1 Oil Co. v. Means, 94 F.3d 1420, 1422 (10th Cir. 1996). Summary judgment

is appropriate only “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c).



Sexual harassment

      Myers’ allegations of sexual harassment focus primarily on various acts

committed by Clinton Huckaby, an equipment operator for the county. Huckaby

started to appear uninvited at Myers’ home in July or August 1994, and he visited

her home ten to twelve times during Myers’ tenure with the county. On one

occasion, he allegedly tried to grab and kiss her, but she pushed him away, telling

him he was a married man. Myers did not tell Cox or Steelman about Huckaby’s


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visits to her home. In 1994, Myers found a birthday card on the windshield of her

truck signed “Super Jerk,” with a small drawing of a hand with the middle finger

sticking up on the card. “Super Jerk” was the name Myers regularly called

Huckaby. Sometime in 1994, Myers was working alone with Huckaby in a truck

when he reached over and tried to touch her. On another occasion, sometime

around Christmas 1994, Myers agreed to ride with Huckaby (apparently during

working hours) to look at a piece of land he was considering purchasing. During

the trip, Huckaby stopped the truck and kissed Myers. Myers did not report these

incidents to Cox or to Steelman.

      Myers was sitting with a coworker, Sam Hall, in the break room in

February 1995 when Huckaby walked in and slapped her in the face with his open

palm. Huckaby admitted he slapped Myers, but claimed it was a continuation of

mutual teasing earlier in the day and was in response to Myers “flipping him off”

under the table in the break room when he entered the room. Myers reported this

incident to Cox, who initially suspended Huckaby for one week, but Huckaby

alleges Cox ultimately reduced the suspension to two days. At least two other

incidents of physical touching occurred on the part of Huckaby during Myers’

tenure. On one occasion, Huckaby slapped Myers on the buttocks in the break

room, and on another occasion, he grabbed her by the upper portion of her arm

while they were in the break room. There is no evidence these incidents were


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reported to Steelman or to Cox.

      On or about September 7, 1995, while they were at work, Huckaby told

Myers: “You know, there’s no need for you to be lonely. Any time you want to

get together, you just let me know.” Myers responded: “Well, I wouldn’t hold

my breath.” Appellant’s App. I at 87. Myers spoke to Cox on or about

September 7, 1995, about Huckaby allegedly telling her he wanted the truck she

had been driving (which he had initially driven when it was purchased). In

response Cox said: “Well, it’s a pecking order kind of thing.” Id. at 97-98.

      In granting summary judgment in favor of defendant on Myers’ claim of

sexual harassment, the district court concluded the evidence was insufficient, as a

matter of law, to demonstrate a hostile work environment, that Myers had failed

to present evidence demonstrating defendant knew or should have known of the

harassment, and there was no basis for holding defendant liable for the alleged

acts. Myers asserts an extremely vague argument on appeal--”There is evidence

of discrimination against [Myers] sufficient to submit this action to a jury.”

Appellant’s Br. at 7. In support of her argument, Myers outlines the various

actions she believes constituted sexual harassment (thus appearing to challenge

the court’s conclusion that the alleged harassment was insufficient to be

actionable), but fails to discuss what evidence in the record, if any, would support

liability on the part of defendant. Although she contends many of Huckaby’s


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actions were “brought to management’s attention,” this contention is not

supported by the record. It is uncontroverted that Myers reported Huckaby had

slapped her in the break room. However, there is no concrete evidence that Myers

ever reported any of the other incidents. 1 Moreover, Myers does not discuss any

theories of employer liability she thinks should apply in this case.

      In light of the deficiencies in Myers’ appellate brief, we seriously question

whether she has challenged the district court’s conclusion that there is no basis

for employer liability. Even assuming, arguendo, that Myers has adequately

challenged this aspect of the court’s decision, a review of the record indicates the

court’s conclusion on this point is correct. Because all of the alleged harassment

was committed by one of Myers’ coworkers, the only viable basis for employer

liability is the negligence standard set out in Restatement (Second) of Agency §

219(2)(b). To trigger liability under this standard, Myers must come forward with

evidence indicating defendant knew or should have known of the alleged

harassment. See Harrison v. Eddy Potash, Inc., 112 F.3d 1437, 1444 (10th Cir.

1997). The evidence presented by Myers indicates only that Cox was aware of the

slapping incident and he acted immediately by sanctioning Huckaby for the

incident. The record simply does not indicate Cox or Steelman knew or should



      1
        In her deposition, Myers testified she thought she reported other harassment to
Cox, but she could not remember when she did so or what she may have reported.

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have known about any of the other incidents between Myers and Huckaby. 2 See

Pfau v. Reed, 125 F.3d 927, 939 (5th Cir. 1997) (hostile environment sexual

harassment was not so open and obvious that employer should be charged with

constructive notice because a substantial portion of harassment took place outside

the presence of other employees, including some incidents away from the

workplace). Because defendant did not have knowledge of the other acts of

harassment on the part of Huckaby, it could not have been negligent in failing to

remedy the situation.

      Myers argues a “rape” comment made by Steelman, her immediate

supervisor, should also be construed as an incident of sexual harassment.

However, Myers “may only rely on evidence relating to harassment of which she

was aware during the time that she was allegedly subject to a hostile work

environment.” Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 782

(10th Cir. 1995). In her initial charge of discrimination, Myers specifically stated

she “was sexually harassed by Clinton Huckaby.” Appellant’s App. I at 67.

During her subsequent deposition, she made no mention of hearing Steelman’s

comment. Accordingly, we will not consider Steelman’s comment in determining

whether Myers has presented an actionable case of sexual harassment.


      2
         Although some incidents were witnessed by other coworkers, most occurred
either when Myers and Huckaby were alone at work or occurred after work at Myers’
home.

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      Because we conclude Myers has failed to present sufficient evidence to

create a triable issue of fact concerning defendant’s liability for the alleged

harassment, we find it unnecessary to address the district court’s alternate basis

for granting summary judgment, i.e., the evidence of harassment was not so

severe as to create a hostile or abusive work environment.



Sexual discrimination

      Myers alleges discrimination on the basis of her gender in her termination

from employment. In dismissing this claim, the district court concluded she had

failed to demonstrate defendant treated her less favorably then her male

counterparts and she had failed to establish a prima facie case of sexual

discrimination. The court further concluded even if she could establish a prima

facie case, she had failed to come forward with evidence establishing any of the

legitimate reasons offered by defendant for termination were pretextual.

      To establish a prima facie case of disparate treatment gender

discrimination, Myers must show (1) she belonged to the protected class; (2) she

was qualified for the position; (3) despite her qualifications, she was discharged;

and (4) she was treated less favorably than her male counterparts. See Lowe v.

Angelo’s Italian Foods, Inc., 87 F.3d 1170, 1174-75 (10th Cir. 1996). If she can

establish a prima facie case of discrimination, the employer must then offer a


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facially nondiscriminatory reason for its employment action. McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973); Marx v. Schnuck Markets, Inc., 76

F.3d 324, 327 (10th Cir.) (age discrimination), cert. denied, 116 S. Ct. 2552

(1996); Murray v. City of Sapulpa, 45 F.3d 1417, 1420-21 (10th Cir. 1995) (sex

discrimination and retaliation). If the employer offers nondiscriminatory reasons

for its employment action, Myers has the burden to produce “evidence upon which

a factfinder could conclude that the defendant’s alleged nondiscriminatory

reasons for the employment decision[] are pretextual.” Ingels v. Thiokol Corp.,

42 F.3d 616, 622 (10th Cir. 1994); see also Randle v. City of Aurora, 69 F.3d

441, 451 (10th Cir. 1995) (“At the summary judgment stage, it then becomes the

plaintiff’s burden to show that there is a genuine dispute of material fact as to

whether the employer’s proffered reason for the challenged action is pretextual--

i.e., unworthy of belief.”).

      Assuming Myers can establish a prima facie case of discrimination, it is

evident defendant has come forward with facially nondiscriminatory reasons for

her discharge. As outlined in Cox’s deposition, he discharged Myers because (1)

county operations were not running smoothly; (2) Myers was a difficult employee

to deal with because she was often moody and angry; (3) Myers was reprimanded

more than any other county employee (for unexcused absences, sleeping on the

job, etc.); and (4) Myers had little seniority among county workers. The critical


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question is whether Myers has produced sufficient evidence to demonstrate a

genuine issue of material fact concerning whether Cox’s proffered reasons for her

discharge are unworthy of belief. At best, evidence produced by Myers

sufficiently challenges only the seniority factor. Notably, she has not

controverted the fact that she left work without notifying anyone, was caught

sleeping on the job, and was confrontational with her coworkers. We conclude

the district court properly granted summary judgment in favor of defendant on

Myers’ claim for sexual discrimination.



Retaliation

      Myers contends her employment was terminated in retaliation for reporting

incidents of sexual harassment. In granting summary judgment in favor of

defendant on this claim, the district court concluded Myers had failed to establish

a prima facie case of retaliation and, in particular, there was insufficient evidence

to demonstrate a causal connection between Myers’ report of the slapping incident

(the only incident of harassment actually reported) and her subsequent termination

six months later.

      To establish a prima facie case of retaliation under Title VII, Myers must

demonstrate “(1) protected opposition to Title VII discrimination or participation

in a Title VII proceeding; (2) adverse action by the employer subsequent to or


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contemporaneous with such employee activity; and (3) a causal connection

between such activity and the employer’s adverse action.” Berry v. Stevinson

Chevrolet, 74 F.3d 980, 985 (10th Cir. 1996). “The causal connection may be

demonstrated by evidence of circumstances that justify an inference of retaliatory

motive, such as protected conduct closely followed by adverse action.” Burrus v.

United Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10th Cir. 1982). An inference

of retaliatory motive can be made only if there is a close temporal proximity

between the bringing of charges and the adverse action. See Candelaria v. EG&G

Energy Measurements, Inc., 33 F.3d 1259, 1262 (10th Cir. 1994).

      Our review of the record on appeal reveals no evidence of a causal

connection between Myers’ protected activity and her subsequent termination. At

most, she has demonstrated only that she reported the slapping incident to Cox in

February 1995 and she was discharged in September 1995. Under recent circuit

precedent, it is clear the gap of six to seven months between the occurrences is

not sufficient to justify an inference of causation. See Conner v. Schnuck

Markets, Inc., 121 F.3d 1390, 1395 (10th Cir. 1997) (four-month time lag

between participation in protected activity and termination not sufficient to justify

inference of causation). Even assuming Myers was able to establish a prima facie

case of retaliation, the record indicates defendant, through Cox, had ample

reasons to terminate Myers’ employment. In light of this evidence, the burden


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was on Myers to produce evidence that her discharge was in retaliation for her

protected activity. We conclude Myers has failed to meet this burden.



Equal pay claim

         Myers alleged defendant violated the Equal Pay Act (EPA) by paying her a

truck driver’s salary even though she performed the same duties as higher-paid

male equipment operators, and by denying her the same opportunity to work

overtime as her male coworkers. To establish a prima facie case under the EPA,

Myers has the burden of proving (1) she was performing work substantially equal

to that of male employees, considering the skills, duties, supervision, effort, and

responsibilities of the jobs; (2) the conditions where the work was performed

were basically the same; and (3) the male employees were paid more under such

circumstances. Tidwell v. Fort Howard Corp., 989 F.2d 406, 409 (10th Cir.

1993).

         We have reviewed the record on appeal and conclude Myers has failed to

present sufficient evidence to establish a prima facie case. The uncontroverted

evidence indicates she was hired by defendant as a truck driver and was paid the

same monthly salary as male truck drivers. Although she alleged she essentially

worked as an equipment operator, the record does not support this allegation.

Even assuming she did operate equipment on a regular basis to load and unload


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her truck, the district court correctly concluded she “did not undertake these

activities with the same frequency, skill, effort, or responsibility as possessed by

seasoned equipment operators.” Appellant’s App. II at 721. Although there is

limited evidence indicating some of the male equipment operators were lazy, this

evidence does not demonstrate Myers was paid less because of her sex. To the

contrary, all employees classified as truck drivers received the same pay.

Whether the county’s compensation system was fair or should have been merit-

based is not at issue. As for Myers’ assertion that she was denied the opportunity

to work overtime, she has failed to come forward with sufficient evidence to

support this claim. The only evidence cited by Myers is the deposition testimony

of Horace Eaton, a truck driver who testified Myers did not receive overtime

opportunities. However, Eaton’s testimony on this point is confusing and

suggests male coworkers were denied overtime opportunities as well. Ultimately,

Eaton’s testimony does not create a genuine issue of fact concerning Myers’ claim

that she was denied overtime on the basis of gender. We conclude the district

court properly granted summary judgment for defendant on Myers’ equal pay

claims.




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      The judgment of the district court is AFFIRMED. Defendant’s motion to

dismiss this appeal for Myers’ failure to file a timely appellate brief is DENIED.



                                               Entered for the Court

                                               Mary Beck Briscoe
                                               Circuit Judge




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