                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 20 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    DIANA ROGERS,

                Plaintiff-Appellant,

    v.                                                   No. 01-6065
                                                   (D.C. No. 99-CV-1574-T)
    CITY-COUNTY HEALTH                                   (W.D. Okla.)
    DEPARTMENT OF OKLAHOMA
    COUNTY; J. DON HARRIS, D.D.S.;
    PAUL DUNGAN,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before MURPHY , McKAY , and BALDOCK , 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      This order and judgment is not binding precedent, except under the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.
      Plaintiff Diana Rogers is appealing the district court’s entry of summary

judgment in favor of defendants City-County Health Department of Oklahoma

County (Health Department), J. Don Harris (Harris), and Paul Dungan (Dungan).

We affirm the district court’s entry of summary judgment on: (1) plaintiff’s claim

of quid pro quo sexual harassment under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-2 (Title VII); (2) plaintiff’s claim of hostile work

environment racial discrimination under Title VII; and (3) plaintiff’s claim of

racial discrimination under 42 U.S.C. § 1983. We reverse the district court’s

entry of summary judgment on: (1) plaintiff’s claim of hostile work environment

sexual harassment under Title VII; (2) plaintiff’s claim of sexual harassment

under § 1983; and (3) plaintiff’s state-law claims against defendant Harris.


                                          I.

      Plaintiff is a Hispanic female who was employed by the Health Department

from 1991 until March 1999. In 1997, plaintiff was placed in an office area with

her African-American supervisor, Carolyn Harris,   1
                                                       and two African-American

co-workers, and she alleges that they harassed her and subjected her to a hostile

work environment based on her race or national origin. Plaintiff alleges that she


1
       It is unclear from the record whether Carolyn Harris was plaintiff’s
supervisor for the entire time that plaintiff claims she was subjected to a hostile
work environment. However, we will assume that this was the case for purposes
of resolving the issues in this appeal.

                                          -2-
complained about the harassment to upper-level supervisors in the Health

Department, including defendant Dungan, the director of the Department, but that

nothing was done to correct the situation.

      Plaintiff further alleges that defendant Harris, the chairman of the Health

Department, sexually harassed her on two separate occasions. The first incident

occurred on February 17, 1999, when plaintiff was meeting with defendant Harris

to discuss her problems with Carolyn Harris. Plaintiff alleges that defendant

Harris told her during the meeting that he would help arrange for her workplace

to be moved to a different building and for her to receive a raise of $1,000.00

per month. Plaintiff alleges that defendant Harris then grabbed her by the neck

and forcibly kissed her, pushing his tongue into her mouth. Plaintiff claims she

pushed defendant Harris away, telling him she was happily married and that what

he was doing was wrong. The second incident occurred during a subsequent

meeting between plaintiff and defendant Harris on March 2, 1999. Plaintiff

secretly tape recorded her conversation with defendant Harris at the second

meeting, and the written transcripts of the tape recording, both plaintiff’s and

defendants’ versions, confirm that defendant Harris began kissing plaintiff at the

conclusion of the meeting and that he continued to kiss her even after she asked

him to stop. The transcripts also confirm that defendant Harris admitted to

having kissed plaintiff at the prior meeting on February 17.


                                         -3-
       Plaintiff did not return to her job at the Health Department after the

incident on March 2. Instead, she submitted a written grievance to the

Department, alleging both sexual harassment and a racially hostile work

environment. The Department never responded to her grievance, and plaintiff

eventually filed suit against defendants in the United States District Court for the

Western District of Oklahoma. In her amended complaint, plaintiff asserted

claims against defendants for sexual harassment and racial discrimination under

Title VII and § 1983, and she also claimed she was constructively discharged

from the Health Department. In addition, plaintiff asserted state-law claims

against defendant Harris for battery and intentional infliction of emotional

distress. The district court entered summary judgment in favor of defendants on

all of plaintiff’s claims, and this appeal followed.


                                            II.

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

applying the same legal standard used by the district court.”       Simms v. Okla.

ex rel. Dep’t of Mental Health & Substance Abuse Servs.         , 165 F.3d 1321, 1326

(10th Cir. 1999). Summary judgment is appropriate “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.”

                                            -4-
Fed. R. Civ. P. 56(c). “When applying this standard, we view the evidence and

draw reasonable inferences therefrom in the light most favorable to the

nonmoving party.”     Simms , 165 F.3d at 1326.

       A. Plaintiff’s Title VII Claims

              1. Hostile Work Environment Sexual Harassment

       To survive summary judgment on her claim of hostile work environment

sexual harassment, plaintiff must show that “a rational jury could find that the

workplace is permeated with discriminatory intimidation, ridicule, and insult, that

is sufficiently severe or pervasive to alter the conditions of [her] employment and

create an abusive working environment.”        See Penry v. Fed. Home Loan Bank of

Topeka , 155 F.3d 1257, 1261 (10th Cir. 1998) (quotation omitted). In addition,

plaintiff must show that the harassing conduct was “both objectively and

subjectively abusive.”     Turnbull v. Topeka State Hosp.   , 255 F.3d 1238, 1243

(10th Cir.) (quotation omitted),    petition for cert. filed , 70 U.S.L.W. 3361

(U.S. Nov. 8, 2001) (No. 01-692). However, plaintiff “need not demonstrate

psychological harm, nor is she required to show that her work suffered as a result

of the harassment.”      Penry , 155 F.3d at 1261. Instead, the existence of sexual

harassment must be determined “in light of the record as a whole and the totality

of [the] circumstances, such as the nature of the sexual advances and the context

in which the alleged incidents occurred.”      Meritor Sav. Bank v. Vinson , 477 U.S.


                                             -5-
57, 69 (1986) (quotations omitted). Under this standard, “an isolated incident

may suffice if the conduct is severe and threatening.”        Turnbull , 255 F.3d at 1243.

       The district court found that plaintiff failed to establish a    prima facie case

of sexual harassment based on a hostile work environment because the two

kissing incidents involving defendant Harris were the only incidents of alleged

sexual harassment she encountered during the eight years she was employed at the

Health Department. Construing the factual record and all inferences therefrom in

favor of plaintiff, we disagree with the district court’s analysis and we hold that

defendant Harris’s conduct was sufficiently severe and threatening so as to create

a genuine issue of material fact for trial concerning whether plaintiff was

subjected to a hostile work environment.        See Davis v. United States Postal Serv.    ,

142 F.3d 1334, 1337, 1341-42 (10th Cir. 1998) (holding that incidents of

unwelcome hugging and kissing and other physical contact by plaintiff’s

co-worker, one of which could be described as a physical assault, were sufficient

to support a jury finding of a hostile work environment).

       In contrast to Davis , this case does not involve repeated incidents of

unwelcome intimate physical conduct. Nonetheless, this case presents an equally

troubling scenario because the alleged harasser is not simply a co-worker as in

Davis , but is instead the highest ranking official in the Health Department.

Further, defendant Harris physically forced himself on plaintiff in a sexual and


                                              -6-
intimate manner at a time when she was specifically requesting his assistance in

addressing issues related to her work. A jury could conclude that his conduct was

particularly severe and threatening given this context. Accordingly, the district

court erred by entering summary judgment on plaintiff’s claim of hostile work

environment sexual harassment.

      Plaintiff alleges she was constructively discharged from the Health

Department as a result of the sexually hostile work environment. The district

court did not address plaintiff’s constructive discharge claim, and it will need to

determine on remand whether plaintiff has sufficient evidence to support such

a claim. Because it found no actionable sexual harassment, the district court also

did not address whether there is a basis under Title VII for imposing direct or

vicarious liability against the Health Department, and that issue will need to be

addressed on remand as well. In remanding plaintiff’s hostile work environment

claim to the district court, we intend no comment on these issues.

             2. Quid Pro Quo Sexual Harassment

      We agree with the district court that plaintiff failed to establish a   prima

facie case of quid pro quo sexual harassment under Title VII. “The gravamen of

a quid pro quo sexual harassment claim is that tangible job benefits are

conditioned on an employee’s submission to conduct of a sexual nature and that

adverse job consequences result from the employee’s refusal to submit to the


                                             -7-
conduct.” Hicks v. Gates Rubber Co. , 833 F.2d 1406, 1414 (10th Cir. 1987). It is

undisputed that defendant Harris kissed plaintiff at the meetings on February 17

and March 2, 1999, and that he initiated this intimate physical contact after telling

plaintiff he would assist her in obtaining a transfer and salary increase. However,

there is no evidence that defendant Harris subjected plaintiff to any adverse job

consequences because she refused to submit to his sexual advances. In fact,

plaintiff never returned to her job after the second meeting with defendant Harris,

and we have held that a defendant may refute a claim of     quid pro quo sexual

harassment “with proof that no negative employment action was taken by the

employer, i.e., that the employee resigned    .” Smith v. Cashland, Inc. , 193 F.3d

1158, 1160 (10th Cir. 1999) (emphasis added). Accordingly, the district court

properly entered summary judgment on plaintiff’s      quid pro quo claim. 2




2
       Plaintiff claims she was constructively discharged as a result of the hostile
work environment caused by defendant Harris’s sexual harassment and that her
constructive discharge was an adverse job consequence that will support her        quid
pro quo claim. We disagree. By definition, a claim of        quid pro quo sexual
harassment must be supported by a negative employment action that is separate
and distinct from the underlying sexual misconduct (     i.e. , a demotion), and
plaintiff effectively resigned before any such action could be taken against her.
As a result, while plaintiff may assert a constructive discharge claim as part of
her hostile work environment claim if there is sufficient evidence to show that a
reasonable person in her position would have felt compelled to resign,       see Penry ,
155 F.3d at 1264, an issue we leave for the district court to determine on remand,
she cannot survive summary judgment on her        quid pro quo claim based on
a constructive discharge theory.

                                             -8-
             3. Hostile Work Environment Racial Discrimination

      The district court found that “[t]here is evidence that [Carolyn] Harris

yelled or cursed at co-workers, including plaintiff, bumped into employees in the

hall, hit plaintiff while they were standing near the coffee pot, [and] threw papers

and pencils at plaintiff and other employees.” Aplt. App. at 452. Plaintiff also

alleges that the other two African-American employees in her work area engaged

in similar conduct. Plaintiff has failed to demonstrate, however, that Ms. Harris

or the other two employees singled her out for abuse because of her race.

We therefore agree with the district court that plaintiff failed to establish a

prima facie case of racial discrimination based on a hostile work environment.

      While the record indicates that two other employees of the Health

Department had also complained that Ms. Harris treated them in an abusive

manner, see Aplt. App. at 301-26, plaintiff has likewise made no showing that

Ms. Harris singled out these employees for abuse because of their race. In fact,

one of the employees testified that she believed Ms. Harris was only being

“inconsiderate,” see id. at 305, while the other employee testified about three

occasions when Ms. Harris acted in an unprofessional manner, but gave no

indication that her conduct was motivated by any sort of racial animus,    see id.




                                           -9-
at 310-26.   3
                 Thus, the entry of summary judgment was proper on plaintiff’s claim

of hostile work environment racial discrimination, including any related

constructive discharge claim.       See Bolden v. PRC Inc. , 43 F.3d 545, 551-52

(10th Cir. 1994) (affirming summary judgment on hostile work environment and

constructive discharge claims where plaintiff failed to establish that he and other

employees were singled out for abuse by their co-workers because of their race).

      B. Plaintiff’s § 1983 Claims

                 1. Sexual Harassment

      The district court entered summary judgment on plaintiff’s claim that her

civil rights were violated as a result of defendant Harris’s alleged sexual

harassment, finding that her § 1983 claim is based on the same evidence as her

Title VII claim. In light of our determination that plaintiff has sufficient evidence

to support a claim of hostile work environment sexual harassment under Title VII,

we reverse the entry of summary judgment on the sexual harassment aspect of

plaintiff’s § 1983 claim and remand the claim to the district court for

reconsideration.      See, e.g., Starrett v. Wadley   , 876 F.2d 808, 814 (10th Cir. 1989)


3
       In opposition to defendants’ motion for summary judgment, plaintiff also
submitted evidence showing that three other employees of the Health Department
had complained that another African-American supervisor had discriminated
against them based on their race.    See Aplt. App. at 289-99. However, the alleged
discrimination did not begin until March 1, 1999,   see id. at 298, and plaintiff has
failed to demonstrate the relevance of this evidence to her hostile environment
claim.

                                               -10-
(holding that sexual harassment is actionable under the Equal Protection Clause of

the Fourteenth Amendment).

             2. Racial Discrimination

      Plaintiff alleges that the Health Department and defendants Dungan and

Harris are liable under § 1983 because she put them on notice of the alleged racial

discrimination she was experiencing, but they failed to correct the situation and

thereby violated her right to equal protection of the laws under the Fourteenth

Amendment. This claim is without merit because there is no underlying

unconstitutional racial discrimination to support either municipal or supervisory

liability in this case. We therefore affirm the entry of summary judgment on the

racial discrimination aspect of plaintiff’s § 1983 claim.

      C. Plaintiff’s State-Law Claims

      Although the district court did not specifically address the state-law claims

which plaintiff has asserted against defendant Harris, the district court granted

summary judgment against plaintiff “on all claims asserted.” Aplt. App. at 453.

In light of our decision to reverse the district court’s dismissal of part of

plaintiff’s Title VII claims, we reverse the entry of summary judgment on

plaintiff’s state-law claims and remand the claims to the district court for further

proceedings consistent with 28 U.S.C. § 1367.




                                          -11-
      The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

for further proceedings consistent with this order and judgment.


                                                   Entered for the Court


                                                   Monroe G. McKay
                                                   Circuit Judge




                                       -12-
