                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                  February 24, 2009
                            FOR THE TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                     Clerk of Court

    NEKIA ANDERSON,

                Plaintiff-Appellant,

    v.                                                   No. 08-6074
                                                 (D.C. No. 5:07-CV-00468-M)
    WINTCO INC., DBA Sonic Drive-In                     (W.D. Okla.)
    Huntsville Inc.,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, PORFILIO, and O’BRIEN, Circuit Judges.



         Plaintiff Nekia Anderson appeals the district court’s grant of summary

judgment in favor of her former employer, Wintco, Inc., doing business as Sonic

Drive-In-Huntsville, Inc., (Sonic), in her case alleging a sexually hostile work

environment and retaliation in violation of Title VII of the Civil Rights Act of

1964. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.


*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                         I.

      Ms. Anderson worked as a carhop at the Shawnee, Oklahoma, Sonic for a

few months in 2004 and, as relevant here, from June to the end of July 2005. The

store manager and Ms. Anderson’s supervisor was Dave Sharon. Ms. Anderson’s

complaint alleged that during her 2005 employment with Sonic, Mr. Sharon

sexually harassed her, resulting in a hostile work environment in violation of Title

VII. Ms. Anderson alleged that on several occasions throughout her employment,

Mr. Sharon asked her to show him a “boob shot,” which she refused; that he once

rubbed her stomach with ice, and once told her that watching her lick cupcake

frosting off her fingers “turned him on.” Aplt. App. at 353, 355, 357, 364-65.

Ms. Anderson also alleged Mr. Sharon told her he “likes hummers,” id. at 361, a

term both he and she understand to mean oral sex, id. at 361, 427.

      Ms. Anderson alleged that Mr. Sharon retaliated against her for refusing his

requests for a “boob shot,” by cutting and changing her hours and by assigning

her to work at the fountain – where employees do not earn tips – despite

promising her when he hired her that she would not be assigned to work the

fountain. Ms. Anderson quit after she was again assigned to work at the fountain.

She did not report any of the incidents of harassment to any Sonic manager or

employee until after she quit.

      The district court granted Sonic’s motion for summary judgment. It ruled

that the undisputed evidence demonstrated that Sonic had exercised reasonable

                                         -2-
care to prevent and correct any discriminatory harassing behavior by adoption of

an effective anti-harassment policy, and that Ms. Anderson had unreasonably

failed to take advantage of that policy. Thus, it ruled that Sonic had established

an affirmative defense to Ms. Anderson’s claims of hostile work environment.

The court also ruled that Ms. Anderson had not engaged in any protected

opposition related to the discriminatory hostile work environment – because she

never complained of the harassment – and, thus, failed to demonstrate a

prima facie case of retaliation. Ms. Anderson appeals the grant of summary

judgment with respect to each of these rulings.

                                         II.

      “We review a grant of summary judgment de novo[,] . . . consider[ing] the

factual record and reasonable inferences therefrom in the light most favorable to

the party opposing summary judgment.” MacKenzie v. City & County of Denver,

414 F.3d 1266, 1273 (10th Cir. 2005) (quotations omitted). Summary judgment is

appropriate when “the pleadings, the discovery and disclosure materials on file,

and any affidavits show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).




                                         -3-
                                         A.

      The district court assumed arguendo, as do we, that Ms. Anderson

established a prima facie case of a hostile work environment claim based on

sexual harassment. In addition to establishing the hostile work environment

elements, the plaintiff must also identify a basis for holding the employer liable

under Title VII. Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007).

“[A]n employer is not automatically liable for harassment by a supervisor who

creates the requisite degree of discrimination.” Faragher v. City of Boca Raton,

524 U.S. 775, 804 (1998) (quotation omitted). An employer is vicariously liable

if a supervisor takes a tangible employment action against the victimized

employee. Id. at 807-08; Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 760

(1998). If, however, no tangible employment action was taken against the

employee, an employer may assert an affirmative defense to vicarious liability if

it can prove two elements: (1) “the employer exercised reasonable care to prevent

and correct promptly any sexually harassing behavior,” and (2) the plaintiff

“unreasonably failed to take advantage of any preventative or corrective

opportunities provided by the employer or to avoid harm otherwise.” Faragher,

524 U.S. at 807; Ellerth, 524 U.S. at 765. This defense is commonly known as

the Faragher-Ellerth defense.




                                         -4-
                                          1.

      Ms. Anderson first argues on appeal that Sonic is not entitled to the

Faragher-Ellerth defense because a tangible employment action was taken against

her. She testified that her carhop hours were reduced and changed from morning

to afternoon, resulting in less tip income, and she was occasionally assigned to

work the fountain, which did not earn tips. She argues these actions constituted

tangible employment actions against her. Examples of tangible employment

actions include “hiring, firing, failing to promote, reassignment with significantly

different responsibilities, or a decision causing a significant change in benefits.”

Ellerth, 524 U.S. at 761. An employee does not suffer a tangible employment

action when she is reassigned to a more inconvenient job, see id., or when a

supervisor merely “change[s] her work schedule and ask[s] her to perform tasks

which she had not previously been asked to perform.” Watts v. Kroger Co.,

170 F.3d 505, 510 (5th Cir. 1999).

      Sonic presented evidence that it required carhops occasionally to work the

fountain, and Ms. Anderson did not dispute this evidence; indeed, she

acknowledged that “could have” been Sonic’s policy. Aplt. App. at 121. Because

it is undisputed that the job duties of a carhop at Sonic included some fountain

work, requiring Ms. Anderson to work at the fountain on a few occasions was not

a tangible employment action. Ms. Anderson testified that her carhop hours were

cut and changed to times that typically earn less in tips and that employees

                                          -5-
working the fountain did not earn tips. Despite Ms. Anderson’s assertion that she

was assigned to hours and assignments that earned less money, she failed to

present any supporting evidence demonstrating that she did, in fact, earn less

money because of either her occasional fountain assignments or any change in her

hours. See Annett v. Univ. of Kan., 371 F.3d 1233, 1237 (10th Cir. 2004) (stating

that “unsupported conclusory allegations do not create a genuine issue of fact”)

(quotation omitted). We conclude the district court did not err in finding that Ms.

Anderson did not present evidence that would allow a reasonable jury to find that

a tangible employment action was taken against her.

                                         2.

      Ms. Anderson next argues that the district court erred in finding that Sonic

exercised reasonable care to prevent and promptly correct any harassing behavior.

We disagree.

      Sonic has a facially effective anti-harassment policy. It (1) provides a clear

explanation of prohibited conduct; (2) protects employees who report claims of

harassment from any retaliation; (3) offers a flexible reporting process that

provides multiple avenues for complaints to be made, specifically stating that

complaints can be made to supervisors, managers, or two named corporate

executives, giving toll-free phone numbers for the latter; (4) mandates that Sonic

will thoroughly investigate all reports and complaints of harassment; (5) gives

assurance that the confidentiality of the individuals bringing harassment claims

                                         -6-
will be protected to the extent possible; and (6) dictates that Sonic will take

immediate and appropriate corrective or disciplinary action when it determines

that a complaint of harassment is substantiated. See EEOC Enforcement

Guidance: Vicarious Employer Liability for Unlawful Harassment by

Supervisors, § V.C.1, 1999 WL 33305874, at *9 (June 18, 1999) (listing elements

of an effective anti-harassment policy and complaint procedure).

      The anti-harassment policy is included in Sonic’s employee handbook.

Ms. Anderson testified that she knew there was an employee handbook, had

looked at it, and signed a form acknowledging receipt of the employment

handbook. Aplt. App. at 115-17. 1 Most significantly, Ms. Anderson testified that

she was aware at the beginning of her employment with Sonic that it had an anti-

harassment policy. Id. at 116. Further, Ms. Anderson admitted that Sonic had

anti-harassment and anti-discrimination posters at her Sonic workplace.

Id. at 116-17.

      Although having an effective anti-harassment policy is not in itself

dispositive, “distribution of a valid antiharassment policy provides compelling

proof that [an employer] exercised reasonable care in preventing and promptly


1
       Ms. Anderson argues that the district court overlooked her testimony that
her memory is vague as to whether the signed form was intended to acknowledge
receipt of the handbook, but regardless of her memory, she hand-wrote her name
in the blank provided in the following phrase: “I, Nekia Anderson, hereby
acknowledge receipt of the Sonic Employee Handbook,” and she signed the form
at the bottom. Id. at 197.

                                          -7-
correcting sexual harassment.” Weger v. City of Ladue, 500 F.3d 710, 719 (8th

Cir. 2007) (quotation marks and citations omitted). An employer with an

effective written policy is not, however, automatically shielded from vicarious

liability, and may be found liable based on a lack of reasonable care under the

first prong of the Faragher-Ellerth defense if it fails to enforce its policy or fails

to investigate and correct harassment claims. See Hurley v. Atl. City Police

Dep’t, 174 F.3d 95, 118 (3d Cir. 1999) (“Ellerth and Faragher do not . . . focus

mechanically on the formal existence of a sexual harassment policy”; if not

effectively enforced, such a policy is no defense).

      Ms. Anderson contends that Sonic’s policy was not effectively enforced

because it did not provide adequate training about its policy. As evidence, she

points to an affidavit from an assistant supervisor at Sonic, Ms. Coffman, who

stated in her affidavit that she never received any training enabling her to deal

with complaints of harassment in the workplace. This scintilla of evidence from

one assistant supervisor relating to her lack of training is insufficient to create a

genuine issue of fact. Her statement creates no inference that Sonic failed to train

its managers and supervisors because Ms. Coffman was only an assistant

supervisor. Moreover, Ms. Anderson never complained to Ms. Coffman, so

Ms. Coffman’s lack of training never became relevant. Further, regardless of

Ms. Coffman’s lack of training, Sonic did give Ms. Anderson a copy of the anti-

harassment policy and Ms. Anderson knew about Sonic’s anti-harassment policy

                                           -8-
when she began her employment. In short, the relevant, undisputed evidence

demonstrates that Sonic adequately distributed its policy to Ms. Anderson and

made her aware of it.

      Ms. Anderson also argues that Sonic failed to investigate claims of

harassment, again pointing to Ms. Coffman’s affidavit. Ms. Coffman stated that

Sonic’s area manager, Mr. Klaus, investigated a rumor that she and Mr. Sharon

were having an affair by conducting the investigation in both her and

Mr. Sharon’s presence. She states she did not feel comfortable telling Mr. Klaus

that Mr. Sharon had sexually harassed her with him present. The only inference

that can be drawn from Ms. Coffman’s (and Mr. Klaus’s) affidavits on this point,

however, is that Mr. Klaus was investigating a complaint about a possible

consensual affair, not a harassment claim.

      Ms. Coffman also stated that female employees complained to her about

how Mr. Sharon rubbed their backs or put ice down their shirts. She does not

state, however, that these employees complained to her of harassment; that they

complained of harassment to a Sonic manager, supervisor or the executives named

in the anti-harassment policy; or that she reported these concerns to anyone at

Sonic other than Mr. Sharon. This evidence, therefore, is insufficient to

demonstrate that Sonic knew or should have known of any harassment complaints.

This evidence does not demonstrate that Sonic or Ms. Klaus failed to investigate

claims of harassment or failed to enforce Sonic’s anti-harassment policy.

                                         -9-
Ms. Coffman also made the non-specific, conclusory and unsupported allegation

that Mr. Klaus was aware of Mr. Sharon’s constant and inappropriate behavior

towards the girls working at Sonic. Again, “unsupported conclusory allegations

do not create a genuine issue of fact.” Annett, 371 F.3d at 1237 (quotation

omitted).

      We conclude that Ms. Anderson did not present evidence that would allow

a reasonable jury to find that Sonic knew or should have known about harassing

conduct, failed to investigate claims of harassment or otherwise failed to enforce

its anti-harassment policy. Accordingly, the district court did not err in ruling

that Sonic exercised reasonable care in preventing and correcting harassing

behavior, thereby establishing the first element of the Faragher-Ellerth

affirmative defense.

                                          3.

      Ms. Anderson next argues the district court erred in finding she

unreasonably failed to take advantage of the preventative or corrective

opportunities provided by Sonic’s anti-harassment policy. Based on

Ms. Coffman’s affidavit, she argues that it would have been futile for her to

complain. Evidence suggesting how Mr. Sharon or Mr. Klaus might have reacted

had she complained to them is insufficient to create a genuine issue of fact.

The anti-harassment policy named two corporate Sonic executives to whom

harassment or discrimination complaints could be made and listed both a

                                         -10-
long-distance and toll-free phone number to contact these individuals. We agree

with the district court that it was not reasonable of Ms. Anderson to fail to contact

these outside managerial resources or to otherwise avail herself of the

preventative and corrective opportunities provided to her by Sonic. Accordingly,

the district court correctly ruled that Sonic established the second element of the

Faragher-Ellerth affirmative defense.

                                          B.

      Ms. Anderson next argues the district court erred in dismissing her

retaliation claim. It ruled that Ms. Anderson never complained of any alleged

harassment and, thus, never engaged in any protected opposition to

discrimination, the first element of a retaliation claim. See Kendrick v. Penske

Transp. Servs., Inc., 220 F.3d 1220, 1234 (10th Cir. 2000) (describing elements of

retaliation claim). Ms. Anderson argues her denials of Mr. Sharon’s requests for

“boob shots” were sufficient to constitute protected opposition. We disagree. As

the district court stated, “[p]rotected opposition can range from filing formal

charges to voicing informal complaints to superiors,” Hertz v. Luzenac Am., Inc.,

370 F.3d 1014, 1015 (10th Cir. 2004). “Although no magic words are required, to

qualify as protected opposition, the employee must convey to the employer his or

her concern that the employer has engaged in [an unlawful] practice.” Hinds v.

Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008). It is undisputed

that during her employment, Ms. Anderson never conveyed to Sonic, formally or

                                         -11-
informally, her concerns or belief that Mr. Sharon was harassing her.

Ms. Anderson does not even direct this court to any evidence that she ever

expressed to Mr. Sharon that his conduct was offensive or unwelcome.

Accordingly, the district court properly dismissed her retaliation claim.

      Accordingly, we AFFIRM the district court’s grant of summary judgment

in Sonic’s favor on Ms. Anderson’s claims of hostile work environment and

retaliation under Title VII.


                                                    Entered for the Court



                                                    John C. Porfilio
                                                    Circuit Judge




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