                                                                     F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                     August 2, 2006
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court



 CON N IE M . C AR RA SC O,

          Plaintiff-Appellant,
                                                       No. 05-3219
 v.                                                (District of K ansas)
                                               (D.C. No. 04-CV-1166-M LB)
 TH E B OEIN G CO M PA N Y ,

          Defendant-Appellee.




                             OR D ER AND JUDGM ENT *


Before M U RPH Y, EBEL, and M cCO NNELL, Circuit Judges.


I.    Introduction

      Appellant Connie Carrasco sued her former employer, The Boeing

Company (“Boeing”), for hostile w ork environment sexual harassment under Title

VII of the Civil Rights Act of 1964. The United States District Court for the

District of Kansas granted summary judgment to Boeing, concluding Carrasco

failed to produce sufficient evidence from which a reasonable jury could conclude




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
the alleged harassment was so severe or pervasive as to create Title VII liability.

Carrasco appeals, alleging the district court failed to properly consider all the

relevant evidence. W e exercise jurisdiction pursuant to 28 U.S.C. § 1291 and

affirm.

II.   Background

      Carrasco worked as an hourly employee for Boeing from 1987 until June

27, 2002. For a portion of this time, Carrasco’s second-level manager was James

Hans. Hans began his employment with Boeing in M ay 1988 and became a

manager in 1990. Carrasco alleges Hans engaged in a pattern of sexual

harassment that began in 1988 and continued until she left Boeing.

      M any of the incidents upon which Carrasco relies to support her claim

occurred prior to June 2001. Carrasco asserts that in 1988 or 1989, Hans made

repeated comments about her feet, indicating he liked the way they looked in a

particular shoe and remarking they were “so tiny that it turns me on.” W hen Hans

moved from an hourly position to a managerial position at Boeing in 1990, he

indicated to Carraso that he would be earning more money and asked her to be his

mistress. According to Carrasco, she responded by laughing at Hans and rejecting

the offer. Notwithstanding the rebuff, Hans told Carrasco in 1992 that he

fantasized about the two of them “being together” and several years later asked

Carrasco to take a vacation day so they could “go get a hotel.” Carrasco also

alleges Hans once told her, “I can tell that you have gained weight because your

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jeans are tight in all the right places.” Carrasco could not recall the date on

which this comment was made although she testified it was some time between

1997 and 2002. In June 2000, while Hans and Carrasco were reviewing a

document in Hans’ office, Hans told Carrasco her perfume smelled good and then

sought the name of the fragrance so he could buy some for his wife.

      Carrasco alleges Hans’ inappropriate behavior continued after June 2001.

Some time in the summer of 2001, Hans approached Carrasco and told her he

thought her shorts w ere shorter than permitted by Boeing’s dress code. Hans told

Carrasco it would be necessary for him to measure her shorts “from the inside of

[her] thigh.” The same summer, Hans asked Carrasco whether she tanned naked

and indicated he w ould like to see for himself whether she had any tan lines. H e

also leaned over the back of her shoulder and whispered that he liked her new

haircut. In the fall of 2001, Hans asked Carrasco several times to show him her

thong underw ear.

      On M ay 8, 2002, Carrasco contacted Boeing’s in-house Equal Employment

Opportunity Department investigator, M ary Avila, about Hans’ behavior toward

her. Avila investigated Carrasco’s complaint but only considered incidents

occurring within the prior twelve-month period. After the investigation was

completed, Carrasco was told her claims could not be substantiated.




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      Approximately one month after contacting Avila, Carrasco received notice

that she was being downgraded from her polisher position to a painter position. 1

As a painter, Carrasco would be assigned to work under H ans’ supervision.

Carrasco declined the painter position and, instead, accepted an accelerated

layoff. 2 Carrasco received a lump-sum layoff benefit and forfeited any right to be

recalled by Boeing.

      Carrasco filed a complaint with the Kansas Human Rights Commission on

August 6, 2002, alleging Boeing retaliated against her for opposing acts and

practices forbidden by the Kansas Act A gainst D iscrimination. See Kan. Stat.

Ann. § 44-1001 to -1044. An amended complaint was filed to include a charge of

sex discrimination. Both complaints contained the following allegation from

Carrasco:

      From June 2001, to June 14, 2002, I was subjected to harassment
      from a male supervisor whom I had filed grievances against
      concerning sexual harassment. The harassment consisted of having
      my work more closely scrutinized, being subjected to an unwarranted
      reprimand, and being subjected to being followed and taunted.
      Although I reported the harassment to upper management, nothing
      was done to effectively stop it.




      1
       Beginning in 2001, Boeing reduced its workforce in W ichita, Kansas by
more than one-third.
      2
       Although Carrasco stated she declined the painter position because she did
not want to be assigned to Hans’ w ork area, she told M ary Avila that, “[e]ven if
management and personnel find a place for me in an area not under Jim Hans, I
will not accept it.”

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After Carrasco received a right to sue letter from the United States Equal

Employment Opportunity Commission, she filed this action in federal district

court pursuant to Title VII of the Civil Rights Act of 1964, 3 alleging hostile work

environment sexual harassment and retaliation. In her complaint, Carrasco

specifically stated she was subjected to sexual harassment “[f]rom June 2001 to

June 14, 2002.” She repeated this statement in the pretrial order. Boeing moved

for summary judgment and the district court granted the motion, ruling, inter alia,

no reasonable jury could conclude Hans’ conduct was severe or pervasive enough

to establish a claim of hostile w ork environment. 4

III.   Discussion

       This court review s a district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court. Bryant v. Farmers

Ins. Exch., 432 F.3d 1114, 1124 (10th Cir. 2005). To affirm the district court, w e

must satisfy ourselves that the pleadings and admissible evidence demonstrate

“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). W e “view the




       3
       Although Carrasco’s complaint contains an allegation that Boeing’s
actions violated the Kansas Act Against Discrimination, the pretrial order
indicates Carrasco dismissed her state statutory claims.
       4
       The district court also concluded Carrasco’s constructive discharge claim
was not properly before the court and that Carrasco had abandoned her retaliation
claim. Carrasco does not challenge either of these rulings in this appeal.

                                         -5-
evidence and draw reasonable inferences therefrom in the light most favorable to

the nonmoving party.” Bryant, 432 F.3d at 1124.

      Pursuant to Title VII of the Civil Rights Act of 1964, it is “an unlawful

employment practice for an employer . . . to discriminate against any individual

with respect to [her] compensation, terms, conditions, or privileges of

employment, because of such individual’s race, color, religion, sex, or national

origin.” 42 U.S.C. § 2000e-2(a)(1). If a plaintiff proves that “discrimination

based on sex has created a hostile or abusive work environment,” she has

established a violation of Title VII. M eritor Sav. Bank, FSB v. Vinson, 477 U.S.

57, 66 (1986); see also Bolden v. PRC Inc., 43 F.3d 545, 550 (10th Cir. 1994).

“To constitute actionable harassment, the conduct must be sufficiently severe or

pervasive to alter the conditions of [the plaintiff’s] employment and create an

abusive working environment.” Bolden, 43 F.3d at 550-51 (quotations omitted).

A plaintiff can show that harrassment is severe or pervasive enough to implicate

Title VII if she satisfies a two-part test. Specifically, she must show (1) the

conduct “create[d] an objectively hostile or abusive work environment–an

environment that a reasonable person would find hostile or abusive” and (2) she

“subjectively perceive[d] the environment to be abusive.” Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 21 (1993). Accordingly, to survive summary judgment,

Carrasco was required to present sufficient evidence from which a reasonable jury

could find that Hans’ conduct created both an objectively and subjectively

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sexually hostile work environment. See Davis v. U.S. Postal Serv., 142 F.3d

1334, 1341 (10th Cir. 1998).

      “[D]etermining whether an actionable hostile w ork environment claim

exists” requires an examination of “all the circumstances, including the frequency

of the discriminatory conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it unreasonably interferes

with an employee’s work performance.” Nat’l R.R. Passenger Corp. v. M organ,

536 U.S. 101, 116 (2002) (quotations omitted). W hen evaluating Carrasco’s

claim, the district court refused to give consideration to incidents that occurred

before June 2001.   Boeing asserts the district court properly refused to consider

those incidents because Carrasco’s complaint and the pretrial order confine

Carrasco’s hostile work environment claim to the period between June 2001 and

June 14, 2002. Although Carrasco’s appellate argument relies, in part, on

encounters that occurred prior to June 2001, she makes no argument under

M organ that the district court’s ruling limiting her evidence to the period between

June 2001 and June 14, 2002 was erroneous. Accordingly, this court, too, will

consider only evidence of incidents occurring from June 2001 to June 14, 2002.

      The pretrial order contains Carrasco’s contention that Hans made four

harassing statements to her between June 2001 and June 14, 2002. During the

summer of 2001, Hans asked Carrasco if he could measure her shorts from the

inside of her thigh, asked her if she tanned naked, and whispered in her ear that

                                         -7-
he liked her haircut. In the fall of 2001, Hans asked Carrasco several times if he

could see her thong underw ear. Carrasco argues on appeal that the district court

erroneously refused to consider evidence of other incidents that occurred between

June 2001 and June 14, 2002. This evidence consists of the deposition testimony

of Carrasco’s coworker, Dana Norris. Carrasco, however, made only broad

references to Norris’ testimony in her memorandum opposing Boeing’s motion for

summary judgment. Nevertheless, she attempts to fault the district court for

failing to consider the specific incidents about which Norris testified. W e reject

any suggestion the district court was responsible for sifting though the record,

specifically the deposition testimony of Norris, to marshal Carrasco’s evidence

for her.

       In any event, the portion of M s. Norris’ deposition testimony which

Carrasco has included in the appellate record concerns Norris’ employment at

Boeing from October 1999 to November 2001. This testimony is not specific as

to time or date and Norris stated she could not remember all the dates on which

she and Carrasco worked the same shift. The record indicates that Hans and

Carrasco worked together on the first shift from July 9, 2001 to June 20, 2002.

Immediately prior to July 9, 2001, Carrasco worked the second shift and Hans

worked the first shift. Norris testified that she was working the second shift at

the time she left Boeing in November 2001. Carrasco does not argue or present

any evidence that she, Norris, and Hans worked the same shift from June 2001 to

                                         -8-
November 2001. Thus, although Norris testified that “everywhere you looked,

[Hans] was standing right there beside [Carrasco]” and that Hans followed

Carrasco “everywhere,” it is impossible to determine from the record before us

whether any of Norris’ testimony relates to incidents occurring between Carrasco

and Hans within the relevant time period of June 2001 to June 14, 2002.

      Having concluded the district court did not err in considering only the four

specific statements Hans made to Carrasco in the summer of 2001 and fall of

2002, we also conclude the district court did not err when it granted summary

judgment in favor of Boeing. Based on our de novo review of the parties’ briefs

and contentions, the district court’s order, and the entire record on appeal, we are

convinced no reasonable jury could find from the relevant evidence that

Carrasco’s workplace was “permeated with discriminatory intimidation, ridicule,

and insult . . . sufficiently severe or pervasive to alter the conditions of [her]

employment.” Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257, 1261

(10th Cir. 1998). Accordingly, this court affirms the entry of summary judgment

in favor of Boeing on Carrasco’s hostile w ork environment claim for substantially

the same reasons stated by the district court in its order dated M ay 9, 2005.




                                           -9-
IV.   Conclusion

      The judgment of the United States District Court for the District of Kansas

is affirmed.

                                     ENTERED FOR THE COURT



                                     M ichael R. M urphy
                                     Circuit Judge




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