                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           AUG 9 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    PENNY R. OLIVER,

                Plaintiff-Appellant,

    v.                                                   No. 03-8036
                                                     (D.C. No. 02-CV-80-J)
    PETER KIEWIT &                                         (D. Wyo.)
    SONS/GUERNSEY STONE,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before HENRY , MURPHY , and TYMKOVICH , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
      Penny R. Oliver appeals from the district court’s order granting summary

judgment on her Title VII claims for sexual harassment and retaliation to

defendant Peter Kiewit & Sons/Guernsey Stone (“Guernsey Stone”). We affirm.

      The district court presented a detailed account of the facts of this case in its

order granting summary judgment to Guernsey Stone. Aplt. App. at 247-53. We

reiterate only those facts necessary to our decision.

      Guernsey Stone employed Oliver as a haul truck operator, and later as an

operator of a front-end loader, at its stone quarry north of Guernsey, Wyoming.

Oliver contends that she was subjected to sexual harassment at Guernsey Stone

beginning in 1994 and continuing until Guernsey Stone laid her off in September

2000. She alleges that her male co-workers and supervisors used offensive

language and made graphic jokes in her presence, creating a hostile work

environment. She also contends that she was laid off in retaliation for her

complaints about the harassment.

      The district court determined that the conduct Oliver alleged was not

sufficiently severe or pervasive to have created a hostile work environment. It

concluded that Oliver had failed to make a prima facie case of retaliation, and that

she presented no evidence to rebut Guernsey Stone’s legitimate, non-retaliatory

reason for laying her off: that she was laid off, along with several other

employees, due to lack of work.


                                         -2-
      Guernsey Stone asserts that Oliver’s claims are barred by res judicata,

collateral estoppel, or judicial estoppel, because she voluntarily dismissed a prior

state administrative proceeding raising the same claims. The district court found

it unnecessary to consider these assertions, as do we. We turn directly to the

merits of the district court’s grant of summary judgment on Oliver’s claims.

      We review a grant of summary judgment de novo , applying the same
      standard as the district court. We examine the record to determine
      whether any genuine issue of material fact was in dispute; if not, we
      determine whether the substantive law was applied correctly, and in
      so doing we examine the factual record and reasonable inferences
      therefrom in the light most favorable to the party opposing the
      motion. However, where the non moving party will bear the burden
      of proof at trial on a dispositive issue that party must go beyond the
      pleadings and designate specific facts so as to make a showing
      sufficient to establish the existence of an element essential to that
      party’s case in order to survive summary judgment.

Neal v. Roche , 349 F.3d 1246, 1249 (10th Cir. 2003) (quotation omitted).

      1. Sexual harassment claim

      “[C]ourts have consistently recognized two distinct categories of sexual

harassment claims: quid pro quo sexual harassment, and hostile work environment

sexual harassment.”    Hicks v. Gates Rubber Co. , 833 F.2d 1406, 1413 (10th Cir.

1987). Oliver proceeds on a hostile work environment theory. A hostile work

environment is one where “[sexual] conduct has the purpose or effect of

unreasonably interfering with an individual’s work performance or creating an

intimidating, hostile, or offensive working environment.”    Meritor Sav. Bank,


                                           -3-
F.S.B. v. Vinson , 477 U.S. 57, 65 (1986) (quotation omitted). To form the basis

of a claim, the sexual harassment “must be sufficiently severe or pervasive to

alter the conditions of [the victim’s] employment and create an abusive working

environment.”    Id. at 67 (quotation omitted).

       The district court concluded that “the conduct alleged by Oliver does not

create a genuine issue of material fact about whether she was subject to severe or

pervasive harassing behavior.” Aplt. App. at 257. Having reviewed the record           de

novo , we agree. We therefore affirm summary judgment for Guernsey Stone on

Oliver’s sexual harassment claim, for substantially the same reasons stated on

pages 10 through 13 of the district court’s decision of April 7, 2003.   See id. at

256-59.

       2. Retaliation claim

       Oliver’s failure to advance a viable sexual harassment claim does not

necessarily preclude her assertion of a retaliation claim. So long as she had a

reasonable, good-faith belief that the underlying conduct that she opposed

violated Title VII, she may maintain a separate claim for retaliation.    See, e.g.,

Crumpacker v. Kan. Dep’t of Human Res.         , 338 F.3d 1163, 1171 (10th Cir. 2003),

cert. denied , 124 S. Ct. 1416 (2004).




                                             -4-
             a. Background

      Oliver’s retaliation claim is based on the following facts. Shortly before

she was laid off, Oliver reported finding a cucumber placed in a cap in the

lunchroom. The cucumber was arranged in such a way that Oliver believed it had

a sexual (i.e., phallic) connotation. Oliver contends that she was laid off because

she reported the cucumber incident to a supervisor.

      Viewed in isolation, we might have difficulty saying that one could

reasonably believe that the “cucumber in a cap” incident was a violation of Title

VII. See Clark County Sch. Dist. v. Breeden    , 532 U.S. 268, 269 (2001) (rejecting

retaliation claim where no reasonable person could believe that underlying Title

VII violation existed). Viewed in context, however, the record shows that this

was not the only incident at Guernsey Stone involving a cucumber with a sexual

connotation. The same week of the “cucumber in a cap” incident, one of Oliver’s

co-employees picked up a cucumber and made an obscene stroking gesture with it

in front of a female co-employee, asking her “how would you like to have this

under the table?” Aplt. App. at 89-90. Oliver observed the incident, but could

not see exactly what the co-employee was doing with the cucumber. While

neither of the cucumber incidents rises to the level of a Title VII violation, we

conclude that Oliver has made a showing sufficient to survive summary judgment

on the question of whether she   reasonably believed   that the cucumber incident


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was an act of sexual harassment. We therefore turn to the merits of her retaliation

claim.

                 b. Prima facie case

         To make out a prima facie case of retaliation, Oliver must show that:

“(1) [she] engaged in protected opposition to discrimination; (2) [she] suffered an

adverse employment action; and (3) there is a causal connection between the

protected activity and the adverse employment action.”      O’Neal v. Ferguson

Constr. Co. , 237 F.3d 1248, 1252 (10th Cir. 2001). As noted, we conclude, for

summary judgment purposes, that the first element of the test was satisfied when

Oliver complained about the cucumber incident. Like the district court, we also

conclude that the second element was satisfied because the layoff was an adverse

employment action.

         We next consider whether, for summary judgment purposes, Oliver met the

third requirement, of showing a causal connection between her complaint about

the cucumber incident and the subsequent layoff. Oliver relies on the close

temporal proximity (eleven days) between the date of her complaint and the date

of the layoff.   1
                     Close temporal proximity between protected conduct and an


1
        Oliver complained about the cucumber incident on September 14, 2000.
Aplt. App. at 102-05. She was laid off on September 29.     Id. at 179. By our
count, this is fifteen days, not eleven. It appears, however, that Oliver may be
referring to eleven working days. See id. at 148-49. This distinction is not
                                                                       (continued...)

                                            -6-
adverse action is sufficient to justify an inference of retaliatory motive, thereby

establishing the third element of a prima facie case of retaliation.   See, e.g.,

Annett v. Univ. of Kan. , 371 F.3d 1233, 1239-40 (10th Cir. 2004). Oliver’s

showing of close temporal proximity satisfies the third element of the prima facie

case for summary judgment purposes.

              c. Legitimate, nondiscriminatory reason

       Since Oliver met her prima facie case, the summary judgment burden

shifted to Guernsey Stone to “articulate a legitimate, nondiscriminatory reason for

the adverse employment action.”       O’Neal , 237 F.3d at 1252. Guernsey Stone

argues that a layoff was necessary because it could not afford to maintain its

current level of staffing, and that it kept the employees it felt were best qualified

to perform the work it had available. It also notes that Oliver was one of seven

employees laid off because of the lack of work. Guernsey Stone thus has

articulated a legitimate, nondiscriminatory reason for the layoff.

              d. Pretext

       Guernsey Stone’s articulation of a legitimate, nondiscriminatory reason

shifted the burden back to Oliver to “respond by demonstrating that [Guernsey

Stone’s] asserted reasons for the adverse action are pretextual.”      Id. Oliver does



1
 (...continued)
significant for summary judgment purposes.

                                             -7-
not contest Guernsey Stone’s contention that a layoff was necessary. She does,

however, contest Guernsey Stone’s reason for laying    her off, based on its

contention that it kept its best qualified employees. Oliver cites the seniority

rules of the collective bargaining agreement between her union and Guernsey

Stone, which require Guernsey Stone to consider seniority as a factor during a

reduction in force or layoff.

      While her EEOC complaint was pending, Oliver pursued a separate

grievance under her union’s collective bargaining agreement with Guernsey

Stone. An arbitrator ultimately ruled in her favor in the union proceeding,

concluding that Guernsey Stone had failed to consider seniority when it laid her

off. The arbitrator rejected her argument that the layoff was retaliatory, however,

for lack of evidence.

      Oliver points to the finding in the arbitration of her union grievance that

Guernsey Stone had failed to give any consideration to seniority when it laid her

off. Oliver claims (and the arbitrator concluded) that she had seniority over some

employees that were retained. She asserts that Guernsey Stone ignored this factor

in the layoff because it wanted to get rid of her.

      The district court refused to credit the arbitrator’s finding that the layoff

violated the collective bargaining agreement because, it reasoned, if it did so it

would have to “give equal consideration to the Arbitrator’s finding that plaintiff’s


                                          -8-
arguments regarding Guernsey Stone’s allegedly retaliatory behavior were not

persuasive because she did not present convincing evidence in support of those

assertions.” Aplt. App. at 271. Notwithstanding this protestation of even-

handedness, the district court proceeded, on the next page of its decision, to use

the arbitrator’s finding against Oliver.    Id. at 272 (“Oliver has not offered any

evidence or information to refute Guernsey Stone’s legitimate non-discriminatory

reason or to refute the Arbitrator’s rejection of her claim of retaliation.   ”)

(emphasis added). Thus, the district court did exactly what it said it would not

do: it applied the arbitration results in a one-sided manner against Oliver.

       This error was particularly significant because the portion of the

arbitrator’s decision rejecting Oliver’s retaliation claim was not entitled to great

weight in this case. The primary issue to be resolved in arbitration was whether

Guernsey Stone had violated the Collective Bargaining Agreement, not whether

she was retaliated against within the meaning of Title VII.        Id. at 183. Although

the union raised the retaliation issue in the arbitration proceedings, it did so

belatedly, failing to mention it until the actual arbitral hearing.

       The district court was entitled to consider the arbitrator’s decision as

evidence in this Title VII proceeding, giving it “such weight as the court deems

appropriate.” Alexander v. Gardner-Denver Co.         , 415 U.S. 36, 60 (1974). An

important factor to be considered when assigning weight to such a decision,


                                             -9-
however, is the “adequacy of the record with respect to the issue of

discrimination.”   Id. at 60 n.21. Here, the record was plainly inadequate on the

retaliation issue, which the arbitrator found was raised at the last minute and not

an important part of Oliver’s grievance; it was precisely this inadequacy that led

the arbitrator to reject the claim. There was no full and fair hearing on Oliver’s

Title VII retaliation claim resulting in the “equivalent [of] judicial factfinding.”

Id. at 57. The district court therefore was not required to give      any weight to the

arbitrator’s rejection of the retaliation claim, and it erred in concluding that it was

required to do so if it considered other portions of the arbitrator’s decision.

              e. Alternative ground for affirmance

       That said, affirmance is proper in this case, for another reason.     2
                                                                                 The

collective bargaining agreement allowed Guernsey Stone “to select the Employees

best skilled for the particular work to be performed” but required it to consider

seniority in cases of reduction of force. Aplt. App. at 170. While the arbitrator

found that Guernsey Stone had departed from the collective bargaining agreement

by failing to consider seniority, there is no evidence in the record that it failed to

do so evenhandedly. The facts on which the arbitrator relied indicate not only



2
       We may, of course, affirm the district court on any grounds for which an
adequate record exists even, as here, where neither the district court nor the
parties recognized the issue. United States v. Sandoval , 29 F.3d 537, 542 n.6
(10th Cir. 1994).

                                            -10-
that Guernsey Stone failed to take      Oliver’s seniority into account, but that it did

not take anyone’s seniority into account during the layoff.       See Aplt. App. at 189

(“Thus, Anderson could not testify that      any employee’s years of service was

discussed”; “Again, nothing was said about considering         an employee’s

seniority.”) (emphasis added). This decision to ignore seniority did not merely

affect Oliver; the arbitrator found that one of the other employees laid off had

seniority over Oliver.    Id. at 182.

       The fact that an employer departed uniformly, and not individually, from

contractual criteria when conducting a reduction in force or layoff is not, by

itself, evidence of pretext.   See generally Beaird v. Seagate Tech., Inc. , 145 F.3d

1159, 1173-74 (10th Cir. 1998);      Jones v. Unisys Corp. , 54 F.3d 624, 632-33 (10th

Cir. 1995). The evidence in this case shows that Guernsey Stone uniformly

disregarded seniority in the layoff. Guernsey Stone’s failure to consider seniority,

while perhaps stating a claim cognizable in union arbitration under the collective

bargaining agreement by the particular employees affected, fails to demonstrate

pretext for purposes of summary judgment in this Title VII case. This being the

case, the district court properly granted summary judgment for Guernsey Stone,




                                             -11-
based on its unrebutted showing of a legitimate, non-discriminatory reason for the

layoff.

      The judgment of the district court is AFFIRMED.



                                                   Entered for the Court



                                                   Robert H. Henry
                                                   Circuit Judge




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