                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 25 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    SEAN JAMES,

                Plaintiff-Appellant,

    v.                                                   No. 03-1536
                                                (D.C. No. 01-WM-1985 (BNB))
    PLATTE RIVER STEEL COMPANY,                           (D. Colo.)
    INC., a Colorado corporation,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before ANDERSON and BALDOCK , Circuit Judges, and             MARTEN , ** District
Judge.



         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      This order and judgment is not binding precedent, except under the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.
**
      The Honorable J. Thomas Marten, District Judge, United States District
Court for the District of Kansas, sitting by designation.
      Plaintiff-appellant Sean James appeals the district court’s entry of summary

judgment in favor of defendant-appellee Platte River Steel Co., Inc. (Platte River)

on his employment discrimination claims under Title VII of the Civil Rights Act

of 1964, 42 U.S.C. §§ 2000e-2000e-17. James also appeals the district court’s

order denying his motion to alter or amend judgment under Fed. R. Civ. P. 59(e).

Our jurisdiction arises under 28 U.S.C. § 1291. We affirm.

                                          I.

      James claims that he was sexually harassed by John Groth, a fellow

employee, 1 and it is undisputed that Groth’s conduct included “jumping on

[James’] back; sticking his tongue in [James’] ears; grabbing [James’] crotch and

private parts; calling [James] his ‘bitch,’ and making obscene and vulgar

statement[s] with sexual connotations to [James].” Final Pretrial Order at 2 (Aplt.

App., Vol. II at 431). As a result of this alleged same-sex sexual harassment,

James claims that he was subjected to a hostile work environment and

constructively discharged from his employment at Platte River.

      Platte River moved for summary judgment on James’ claims, arguing that

James had insufficient evidence to establish that Groth engaged in conduct that is

prohibited by Title VII. Alternatively, Platte River argued that, even if Groth


1
       Although the parties dispute whether Groth was a coemployee or James’
supervisor, Groth’s status in this regard is immaterial to our analysis of the issues
raised in this appeal. As a result, we do not need to address Groth’s status.

                                         -2-
engaged in prohibited conduct, there was no basis for imposing liability on it.

Relying on the decision of the United States Supreme Court in Oncale v.

Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), the district court agreed

with Platte River on the first issue, finding that James had failed to put forth

sufficient evidence to support an inference that Groth’s conduct was motivated by

James’ gender. The court therefore concluded that Platte River was entitled to

summary judgment on James’ hostile work environment and constructive

discharge claims, and it dismissed the claims with prejudice.

       James filed a timely motion under Fed. R. Civ. P. 59(e) to alter or amend

the district court’s judgment. The district court denied James’ motion, concluding

that James had failed to establish a proper basis for relief under Rule 59(e). This

appeal followed.

                                            II.

       A. Summary Judgment Order.

       “We review the grant of summary judgment de novo applying the same

standard as the district court.”   Adler v. Wal-Mart Stores, Inc.   , 144 F.3d 664, 670

(10th Cir. 1998). Summary judgment is proper if “there is no genuine issue as to

any material fact and . . . the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). “In applying this standard, we view the factual

record and draw all reasonable inferences therefrom most favorably to the


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nonmovant.” Adler , 144 F.3d at 670. Having carefully reviewed the record and

the pertinent legal authorities, we agree with the district court that Platte River

was entitled to summary judgment on James’ hostile work environment and

constructive discharge claims.

      With respect to James’ hostile work environment claim, it is well

established that

      Title VII’s prohibition of employment discrimination based on sex
      encompasses hostile work environment sexual harassment. This
      harassment occurs 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.
      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 672 (quotations and citations omitted). The question presented in this case,

however, is whether a hostile work environment claim can be based on same-sex

sexual harassment.

      In Oncale , the Supreme Court addressed the issue of whether “workplace

harassment can violate Title VII’s prohibition against ‘discrimination . . . because

of . . . sex,’ 42 U.S.C. § 2000e-2(a)(1), when the harasser and the harassed

employee are of the same sex.”    Oncale , 523 U.S. at 76. The Court held that

“same-sex sexual harassment is actionable under Title VII,”    id. at 82, but the

Court was careful to emphasize that the harassment must be tied to gender

discrimination. As the court explained,

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       Title VII does not prohibit all verbal or physical harassment in the
       workplace; it is directed only at “ discriminat[ion] . . . because of . . .
       sex.” We have never held that workplace harassment, even
       harassment between men and women, is automatically discrimination
       because of sex merely because the words used have sexual content or
       connotations. “The critical issue, Title VII’s text indicates, is
       whether members of one sex are exposed to disadvantageous terms or
       conditions of employment to which members of the other sex are not
       exposed.” Harris [v. Forklift Sys., Inc. , 510 U.S. 17, 25 (1993)]
       (GINSBURG, J., concurring).

Id. at 80; accord Riske v. King Soopers,     366 F.3d 1085, 1091 (10th Cir. 2004).

       The Supreme Court also recognized that there are important differences

between same-sex and opposite-sex discrimination cases in terms of the

inferences that can be drawn from a harasser’s conduct. Thus, while “[c]ourts

and juries have found the inference of [gender] discrimination easy to draw in

most male-female sexual harassment situations, because the challenged conduct

typically involves explicit or implicit proposals of sexual activity,”   Oncale , 523

U.S. at 80, the inference is not as easy to draw in a same-sex case. As a result, in

Oncale , the Court articulated three possible evidentiary routes by which a

plaintiff in a same-sex case may prove that “the conduct at issue was not merely

tinged with offensive sexual connotations, but actually constituted

“discrimina[tion] . . . because of sex.”     Id. at 81.

       First, a plaintiff may show that the harasser was homosexual and motivated

by sexual desire.   Id. at 80. Second, a plaintiff may show that the harassment was

framed “in such sex-specific and derogatory terms . . . as to make it clear that the

                                             -5-
harasser [was] motivated by general hostility to the presence” of a particular

gender in the workplace.      Id. Third, a plaintiff may “offer direct comparative

evidence about how the alleged harasser treated members of both sexes in a

mixed-sex workplace.”      Id. at 80-81.

       As other circuits have recognized, we also note that there is “nothing in the

Supreme Court’s decision [in      Oncale ] indicating that the examples it provided

were meant to be exhaustive rather than instructive. The Court’s focus was on

what the plaintiff must ultimately prove rather than the methods of doing so.”

Shepherd v. Slater Steels Corp.     , 168 F.3d 998, 1009 (7th Cir. 1999). The Third

and Ninth Circuits, for example, have held that a plaintiff may be able to establish

actionable same-sex sexual harassment by showing that the harasser’s conduct

was motivated by a belief that the plaintiff did not conform to the stereotypes of

his or her gender.   See Bibby v. Philadelphia Coca Cola Bottling Co.        , 260 F.3d

257, 262-63 (3d Cir. 2001);      Nichols v. Azteca Rest. Enters., Inc.   , 256 F.3d 864,

869, 874-75 (9th Cir. 2001).

       The district court found that James failed to put forth sufficient evidence to

establish that he was harassed by Groth because he is male based on any of the

evidentiary routes outlined in     Oncale , and the court therefore concluded that

Platte River was entitled to summary judgment on James’ hostile work

environment claim.    See Aplt. App., Vol. III at 672-76. We agree with the


                                              -6-
thorough analysis set forth in the district court’s summary judgment order. We

also note that James has made no showing that Groth harassed him due to the fact

that he failed to conform to gender stereotypes. To the contrary, James testified

at his deposition that he had “no clue” why Groth singled him out for harassment.

Id. , Vol. II at 234. James also testified that he was never told by any fellow

employees at Platte River that he dressed or acted like a woman.      Id.

       Because James has failed to show that a genuine issue of material fact

exists as to his hostile work environment claim, we also agree with the district

court that James cannot rely on a hostile work environment theory to support a

constructive discharge claim.    Id. , Vol. III at 677 n.5. The district court therefore

properly entered summary judgment on James’ constructive discharge claim.

       Finally, we note that James is claiming that his hostile work environment

claim is not subject to   Oncale because he has asserted a “macro” theory of sexual

harassment liability based on Platte River’s alleged long-standing practice of

tolerating male-on-male sexual harassment in the workplace. According to James,

the primary focus of this case should thus be on Platte River’s conduct, not

Groth’s, and he claims that it is “of little or no consequence” whether he can

make one of the evidentiary showings required by      Oncale . See Aplt. Br. at 22.

       James’ arguments are without merit. Regardless of whether Platte River

has a history of employing male employees who sexually harass other male


                                           -7-
employees, James must still establish that he was personally discriminated against

because of his gender. As the district court found, James failed to put forth

sufficient evidence to make such a showing with respect to the conduct of Groth.    2



Moreover, while it certainly appears that the general work atmosphere at Platte

River was awash with childish and boorish behavior, James failed to put forth

sufficient admissible evidence to establish, under    Oncale , that he was unlawfully

discriminated against “because of sex” based on the general work atmosphere at

Platte River. We therefore reject James’ claim that the district court erred by

failing to consider other alleged incidents of male-on-male sexual harassment

involving other Platte River employees.

       B. Order Denying Rule 59(e) Motion.

       In his motion to alter or amend judgment, James argued that he was entitled

to relief under Rule 59(e) because: (1) there was an intervening change in the

controlling case law; (2) one of his attorneys had previously abandoned the case

without any prior warning and left his current attorney, Richard Blundell, to

handle the case by himself; (3) Platte River failed to disclose relevant evidence


2
       In fact, James conceded in his Rule 59(e) motion that “it . . . matters little
whether [Groth] harassed [James] out of sexual desire because he was
homosexual or otherwise, or due to a general hatred of males in the workplace, or
for another reason. Indeed, it seems obvious that such motives did not inspire . . .
the harassment of [James], and James has not argued that they did      .” Aplt. App.,
Vol. III at 696 (emphasis added). Under   Oncale , these admissions are fatal to
James’ claim that Groth discriminated against him because of his gender.

                                            -8-
and made misrepresentations to the district court; (4) Mr. Blundell omitted

references to certain relevant deposition transcripts in the responses that he filed

to Platte River’s summary judgment motion; (5) the district court failed to take

judicial notice of a court file concerning a same-sex sexual harassment lawsuit

that was filed against Platte River in 1995 by another male employee; and (6) the

district court failed to consider other relevant evidence and hold an evidentiary

hearing regarding the motion for summary judgment.

       We review the district court’s denial of James’ Rule 59(e) motion for an

abuse of discretion.   See Phelps v. Hamilton , 122 F.3d 1309, 1324 (10th Cir.

1997). “Under the abuse of discretion standard, a trial court’s decision will not

be disturbed unless the appellate court has a definite and firm conviction that the

lower court made a clear error of judgment or exceeded the bounds of permissible

choice in the circumstances.”     Id. As accurately summarized by the district court,

it is also well established that a party may obtain relief from a judgment under

Rule 59(e) in only a limited set of circumstances.

       A motion to alter or amend a judgment pursuant to Rule 59(e) should
       be granted only to address: (1) an intervening change in the
       controlling law; (2) new evidence previously unavailable; or (3) the
       need to correct clear error or prevent manifest injustice. Servants of
       the Paraclete v. Does , 204 F.3d 1005, 1012 (10th Cir. 2000). Such a
       motion is not an appropriate vehicle to “advance arguments that
       could have been raised in prior briefing.”     Id.

Aplt. App., Vol. III at 789-90.


                                           -9-
       Having carefully reviewed James’ Rule 59(e) motion, the brief James filed

in this appeal, Platte River’s response briefs, and the district court’s order

denying James’ motion, we conclude that the district court did not abuse its

discretion in denying James’ motion. Specifically, we agree with the district

court that: (1) James failed to demonstrate that there was an intervening change in

the controlling case law; (2) James failed to submit any qualifying new evidence;

and (3) James failed to establish a need to correct a clear legal error or prevent

manifest injustice.   Id. at 790-94.

       The judgment of the district court is AFFIRMED.


                                                      Entered for the Court


                                                      Stephen H. Anderson
                                                      Circuit Judge




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