Burns v. Snow

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 16 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
SYLVIA BURNS,

Plaintiff-Appellant,

v. No. 04-1349
(D. Colo.)
JOHN W. SNOW, Secretary of the (D.Ct. No. 03-Z-690 (BNB))
United States Department of the
Treasury,

Defendant-Appellee.

ORDER AND JUDGMENT *

Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior
Circuit Judges.

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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(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This order and judgment is not binding precedent except under the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.
 Appellant Sylvia Burns appeals the district court’s grant of summary

judgment in favor of Appellee John W. Snow, Secretary of the United States

Department of the Treasury (the Government), regarding her allegations

employees of the United States Mint in Denver, Colorado (the Mint), failed to

accommodate her disability and subjected her to sexual harassment and retaliation

in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

through 2000e-17; and the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-32, 741,

751, 760-65, 771-76, 780-85, 791-96. We exercise jurisdiction under 28 U.S.C.

§ 1291 and affirm.

I. Factual Background

“In setting forth the facts, we view the evidence in the light most favorable

to the non-moving party, as we must when reviewing a grant of summary

judgment.” Baca v. Sklar, 398 F.3d 1210, 1213 (10th Cir. 2005) (quotation marks

and citation omitted). Summary judgment is appropriate “against a party who

fails to make a showing sufficient to establish the existence of an element

essential to that party’s case ....” See Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). Thus, for the purpose of reviewing the district court’s summary judgment

decision, we consider the following facts, which are either undisputed or

uncontested, and/or based on the admissions and testimony of Ms. Burns during

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the course of litigation in support of her claims, and which, even if true, we

determine cannot defeat summary judgment in this case.

A. Production and Attendance

On May 10, 1999, Ms. Burns was hired by the Mint as a probationary

employee in the position of Counting Machine Operator, working the graveyard

shift. The duties of a counting machine operator include using a counting

machine to count and bag a specified number of cents, nickels, dimes and

quarters. At the Mint, probationary employees like Ms. Burns are hired for a one-

year trial period, during which their performance, attendance and compliance with

workplace polices are monitored, and they are required to demonstrate fitness for

permanent hiring. Counting machine operators are required to meet certain

numerical production standards for each type of coin, and performance below

95% of the standard is considered unacceptable. An employee may be terminated

at any time during the probationary period for failure to demonstrate fitness and

qualifications for continued federal employment, and has no right to warnings or

progressive forms of discipline.

During the period of Ms. Burns's probationary employment with the Mint

the demand for new U.S. coins increased. As a result, the Mint operated twenty-

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four hours a day, seven days a week, which resulted in employees generally being

required to work a six-day-per-week schedule. The Mint also gave employees the

option of volunteering to work on the seventh day of each week. Attendance is a

concern for the Mint because employees with unreliable attendance interfere with

its ability to meet demanding production requirements. During Ms. Burns's job

interview, when asked whether she could work overtime, including six days a

week, she said she could. However, according to Ms. Burns, both the individual

who interviewed her and the doctor who performed her pre-employment medical

examination for the Mint told her employees hardly ever worked overtime at the

Mint.

During a period of at least twenty weeks, between June 1999 and March

2000, Ms. Burns volunteered to work overtime on her one scheduled day off. In

addition, for a total of twelve weeks between July 1999 and March 2000, she

voluntarily worked more than forty-eight hours a week. During her probationary

period, Ms. Burns never informed her direct supervisor, Tom Romero, that

working overtime caused any medical problems and never asked him to excuse

her from working scheduled overtime for any reason.

While Ms. Burns volunteered to work overtime, her personnel records are

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replete with performance appraisals evidencing deficiencies in her performance

and attendance. Records show she failed to perform at the 95% required level on

certain coins throughout her probationary period; they also contain entries by Mr.

Romero stating he verbally counseled Ms. Burns about her production

deficiencies, after which, he noted, she continued to perform below the required

level. In addition, due to numerous incidents of tardiness and uses of

unscheduled leave, personnel records show Mr. Romero verbally counseled Ms.

Burns, warning she would be required to bring in medical documentation each

time she called in sick. While Ms. Burns gave sundry reasons for being late and

taking unscheduled leave, one notation shows the reason she gave for missing

work on September 30, 1999, was for a “lupus flare-up.” On December 17, 1999,

Mr. Romero prepared a document which stated Ms. Burns failed to meet

performance standards and had received counseling on her attendance; it also

stated that if she failed to improve her performance, she would be discharged

from her probationary employment for non-production. Ms. Burns signed the

document, indicating it had been discussed with her.

Thereafter, records show Ms. Burns was tardy at least one more time, had

at least ten more unscheduled leave occurrences, and her production on nickels

continued to be below the required 95% level. In total, over the course of her

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eleven-month probationary employment, Ms. Burns was tardy for work at least

seven times and took unscheduled leave at least eighteen times. 1 On April 18,

2000, Ms. Burns took another sick leave absence, and on the same day, the Mint

fired Ms. Burns, effective April 19, 2000, based on “unacceptable” or

“unreliable” attendance and “unacceptable” or “substandard” production output.

Three years after her termination, and two years after an unsuccessful

EEOC agency action, Ms. Burns filed the instant action against the Mint,

asserting its employees failed to accommodate her disability relating to lupus and

subjected her to sexual harassment and retaliation in violation of Title VII of the

Civil Rights Act, and the Rehabilitation Act. The record reveals the following

evidence relating to her claims.

B. Disability Claim

In her written application for employment with the Mint, Ms. Burns

represented her prior “job involved using physical strength, standing for long

periods of time, ... walking and so on.” During her job interview, when asked if

1
Other than one entry for a “lupus flare-up,” the other medical reasons
provided by Ms. Burns for unscheduled sick leave included migraines or
headaches, “illness,” “UTI pain,” fevers and/or flu, earache, cut finger, sinus
infection, and urinary tract infection.

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she would have difficulty lifting bags weighing twenty-eight to fifty pounds and

standing for eight hours a shift, she responded, “No. I do it now,” and as

previously mentioned, she indicated she could work overtime, including six days a

week. Ms. Burns claims she told the person interviewing her for the Mint job she

had lupus.

As part of the hiring process, Ms. Burns underwent a physical examination

and filled out an occupational history questionnaire. In response to the question,

“Do you have any problems you would like to discuss with the doctor?” Ms.

Burns wrote, “Kaiser had treated me for lupus for 2 years or so but now I’m

negative. I took quinine pills it helped the rash.” She also completed a “Self-

Identification of Handicap” form on which she indicated she possessed no

disability. Part of her physical examination included an assessment of whether

she could perform the functional requirements of the job, including heavy lifting

and carrying of forty-five pounds or more, and walking and standing for eight

hours. Section A5 of the form asked Ms. Burns whether she had any medical

disorder or physical impairment which could interfere in any way with the full

performance of these functional requirements, to which she answered, “no,” and

signed the form, certifying the information was correct. Following her physical,

the examining physician recommended she be hired with no limitations.

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 Ms. Burns now claims she had difficulty walking and standing on three or

four occasions during her eleven months of employment at the Mint. While she

missed work on April 18, 2000, due to lesions on her feet, which her doctor

described as a painful foot condition, she contends she was terminated due to her

“flare up of lupus” on that same date. Although Ms. Burns brought in doctors'

notes on other medical conditions, she never submitted one diagnosing her with

lupus or indicating a need to accommodate her lupus. In fact, while Ms. Burns

claims she was diagnosed with diskoid lupus in March 1997, none of the three

rheumatologists who examined her on at least four occasions from 1998 to 2002

diagnosed or confirmed she had lupus. Furthermore, Ms. Burns submitted no

medical information confirming she had lupus, and admitted that in January 2000

she told Dave Cruz, her second-line supervisor, and other coworkers at the Mint a

doctor told her she did not have lupus. She also acknowledged a doctor told her

she did not suffer from diskoid lupus, but rather experienced “atopic dermatitis,”

she was unsure if she had lupus, and did not recall if any doctor told her that her

condition would affect her ability to work overtime.

C. Harassment

While at work at the Mint, Ms. Burns stated she was shown at least four or

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five sexually-oriented photographs or cartoons, 2 and in one case, approached a

group of male coworkers in order to see a photo of topless women, which she

found “mildly offensive.” When shown these and other sexual images at work,

Ms. Burns acknowledged she sometimes responded by laughing or chuckling, or

making lewd or crude comments which caused her coworkers to laugh. Ms. Burns

claims she behaved this way because she was afraid she would “offend

somebody” or would experience reprisal.

Ms. Burns testified most of the cartoons and jokes she was shown were of

natural acts or bare-breasted women. While she found two of the pictures

“offensive,” she admitted that after she expressed being offended she was never

shown them again. Ms. Burns also acknowledged she discussed sex at work when

questioned about it, and even volunteered intimate information about her first

husband. Even though the Mint maintained a written sexual harassment policy

and Ms. Burns had experience with the Mint’s Equal Employment Opportunity

Office, having contacted it on another issue, she admitted she never “seriously”

informed those around her that she was offended by any of the sexual materials,

2
Specifically, the items about which Ms. Burns complains included a
cartoon of President Bill Clinton engaged in oral sex with a female; a man
groping a woman on a couch; a photograph of a vagina with something “huge”
inserted in it; a photograph of topless large-breasted women on a river boat; and a
photograph of a walrus with a flipper pointing toward its crotch area.

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stating only that she was “afraid to.”

In support of her harassment claim, Ms. Burns also alleged Mr. Cruz

brought in or observed pornographic materials on the workroom floor; discussed

his and his father’s sex lives; twice commented on the size of his penis; said he

was promoted by sleeping with a female supervisor; purchased Ms. Burns two t-

shirts; 3 asked her out or to move in with him; and commented on her cleavage.

However, Ms. Burns admits this same supervisor also gave t-shirts to male crew

members; bought one of the t-shirts at her request, although he declined payment

for it; and left her alone after she told him “he needed therapy,” and that she

“couldn’t date anybody who was like that.” When Mr. Cruz commented on

sleeping with a female supervisor to get promoted, Ms. Burns asked Mr. Romero

if this was true, in response to which he nodded his head, making her feel like

“they were preying on” her. She believes Mr. Cruz made these comments about

sleeping with his supervisor in response to her requests for training, making her

believe he was seeking sexual favors in return for such training. With respect to

Mr. Cruz’s comments about her cleavage, she said it made her feel like “a piece

of meat.”

3
Ms. Burns points out she wore “biker” t-shirts to work, which Mr. Cruz
inappropriately admired, and that he presented her with a black Harley Davidson
shirt he got on a trip.

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 With regard to her first-level supervisor, Mr. Romero, Ms. Burns claims he

knew another employee brought pornographic material into the workplace

(including one of the pornographic pictures of which Ms. Burns now complains),

and failed to do anything about it until 1999, when he counseled the employee.

She also suggests Mr. Romero “asked her out” twice. According to Ms. Burns,

the first time he asked her out by saying, “we should get together,” when she told

him he was a good-looking man and his wife must be beautiful. The second time,

he allegedly stated “we should get to know each other better,” to which she

responded by pointing out they had just gone through in-house sexual harassment

training and one of them could get in trouble talking about it; stating, “we can’t

go around behaving like a bunch of idiots.” She admitted Mr. Romero's

comments were “just his sense of humor,” and that his and other coworkers’

“vulgar” senses of humor “kind of rubbed off on [her].” She also admitted she

told Mr. Romero he had a “tight butt,” and requested a copy of “raunchy” jokes

from him which contained sexual innuendo, and which she shared with her

teenage son. In fact, during her 2001 EEOC hearing on the matter, Ms. Burns

acknowledged Mr. Romero did not make sexually advancing or sexually harassing

comments to her.

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 D. Retaliation and Failure to Accommodate Claims

In December 1999, Ms. Burns contacted an EEO counselor and filed a

complaint, alleging the Mint had failed to train (or properly train) her on certain

equipment. At the time she met with the EEO counselor, Ms. Burns claims she

told him she was being harassed by both Mr. Cruz and Mr. Romero because she

had moved in with a coworker, Mr. Watts, in late September or early October, and

because she would not give into their “whims.” She now claims she did not

include this on her EEO complaint because she feared retaliation. On January 24,

2000, she unconditionally withdrew her EEO complaint.

Ms. Burns also claims that at her meeting with the EEO counselor she

advised him she had lupus and had applied for a job in the mills because she knew

it would allow her to work “light duty.” In addition, sometime during the first six

months of her job, Ms. Burns says she told her supervisors, Mr. Cruz and Mr.

Romero, her foot hurt, she had lupus, and she had applied for a mill job which she

thought would be easier. Ms. Burns did not get an interview for the mill job;

instead, two other candidates did, including one person who scored higher on a

knowledge and skills assessment, and another who scored higher due to veterans’

preference points. When Ms. Burns found out she was not selected for a position

in the mills, she told a human resources employee she was not feeling well and

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that her lupus was flaring up.

During the period of Ms. Burns's employment, Mr. Cruz dated an employee

at the Mint who had lupus, whose medical condition was accommodated by not

working overtime, and who provided medical documentation in support of her

accommodation. Ms. Burns's other supervisor, Mr. Romero, knew someone with

lupus might require reasonable accommodations at the Mint and an employee

making such a disability claim must provide a doctor’s note, but nevertheless, did

not ask Ms. Burns for any medical documentation. While Ms. Burns told Mr.

Romero she had lupus, she never asked for an accommodation, never brought in

medical documentation confirming her medical condition, and told Mr. Cruz that

a doctor said she did not have lupus.

In January 2000 Ms. Burns contacted someone from the EEO office at the

Mint and told her she was having problems and needed help; a month later, she

was informed she needed to fill out a form. In late March, Ms. Burns received a

form from the EEO office, which required a doctor identify her disease and

restrictions; however, she did not submit the form prior to her termination. In late

April 2000, following her termination, she filed an EEO complaint involving

claims of disability, failure to accommodate, sexual harassment, and retaliation.

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 II. Procedural Background

An EEOC hearing was held in November 2001 on Ms. Burns's EEO

complaint. Unsuccessful in her action, Ms. Burns filed her First Amended

Complaint in federal court July 2, 2003, claiming Mint employees failed to

accommodate her disability relating to lupus and subjected her to sexual

harassment and retaliation in violation of Title VII of the Civil Rights Act, and

the Rehabilitation Act. Following discovery, the district court held a hearing on

the Government’s motion for summary judgment, at which time it issued a bench

ruling determining Ms. Burns failed to: 1) provide any medical documentation

she was disabled, or rebut the Mint’s expert’s medical opinion and assessment

that she did not have lupus, for the purpose of showing she is a qualified person

within the meaning of the Rehabilitation Act as having a disability which

substantially impairs a major life activity or prevents her from performing a wide

range of jobs; 2) establish conduct at the Mint was sufficiently severe or

pervasive enough to support a quid pro quo sexual harassment claim, or otherwise

show conduct that altered the condition of her employment and created an abusive

working environment, or that any impermissible conduct was related to her

gender; or 3) show a sufficient causal link between her complaints and her

termination to support a retaliation claim.

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 In addition, the district court held the Mint provided legitimate,

nondiscriminatory, non-retaliatory reasons for terminating Ms. Burns, who was a

probationary employee with unreliable attendance, tardiness and unacceptable

production levels. With respect to the Mint’s reasons not to transfer Ms. Burns to

a mill job, the district court relied on Ms. Burns’s work deficiencies and the fact

the two other people who received interviews for the mill job were more

qualified, to reject her accommodation and retaliation claims. Based on this and

other reasoning, the district court determined Ms. Burns failed to provide a

sufficient showing of triable issues of fact to overcome summary judgment,

granted the Government’s motion for summary judgment, dismissed her amended

complaint with prejudice, and entered judgment in favor of the Government.

III. Discussion

A. Standard of Review

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

same standards applied by the district court.” Baca, 398 F.3d at 1216. “We view

the evidence and reasonable inferences drawn from the evidence in the light most

favorable to the nonmoving party,” and “grant summary judgment only where ‘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

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

law.’” Id. (quoting Fed. R. Civ. P. 56(c)). As previously noted, summary

judgment is appropriate “against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party’s case ....” Celotex,

477 U.S. at 322. Summary judgment is appropriate “[i]f a reasonable trier of fact

could not return a verdict for the nonmoving party ....” White v. York Int’l Corp.,

45 F.3d 357, 360 (10th Cir. 1995). “We may affirm the district court for any

reason supported by the record.” Baca, 398 F.3d at 1216 (quotation marks and

citation omitted).

B. Disability and Failure to Accommodate

On appeal, Ms. Burns asserts the district court erred in granting summary

judgment based solely on her failure to provide a conclusive medical opinion on

her disability; she contends she was only required to advise her employer of her

medically-required restrictions and possible ways to accommodate them. Ms.

Burns claims she sufficiently raised the issue of having lupus and the need for a

reasonable accommodation when she gave “lupus flare-up” as a reason for

missing one day of work; told various other employees, including her two

supervisors, she had lupus; and reported to an EEO counselor she had lupus and

hoped to get a job in the mills. In general, Ms. Burns complains her lupus limited

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her in her ability to stand and walk with respect to the overtime hours required for

her position.

The Americans with Disabilities Act of 1990 (ADA) provides that “[n]o

covered entity shall discriminate against a qualified individual with a disability

because of the disability of such individual in regard to job application

procedures, the hiring, advancement, or discharge of employees, employee

compensation, job training, and other terms, conditions, and privileges of

employment.” 42 U.S.C. § 12112(a). “Merely having an impairment does not

make one disabled for purposes of the ADA.” Toyota Motor Mfg., Ky., Inc. v.

Williams, 534 U.S. 184, 195 (2002). To prevail under the ADA, an employee

must establish: “(1) she is a disabled person as defined by the ADA; (2) she is

qualified, with or without reasonable accommodation, to perform the essential

functions of the job held or desired; and (3) the employer discriminated against

her because of her disability.” Doyal v. Okla. Heart, Inc., 213 F.3d 492, 495

(10th Cir. 2000).

“To establish a prima facie case of discrimination under the ADA, Plaintiff

must first establish that [she] is ‘disabled’ within the meaning of the statute.”

Lusk v. Ryder Integrated Logistics, 238 F.3d 1237, 1239 (10th Cir. 2001).

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“Disability” is statutorily defined or established by showing: “(A) a physical or

mental impairment that substantially limits one or more of the major life activities

of [an] individual; (B) a record of such impairment; or (C) being regarded as

having such an impairment.” Id. (relying on 42 U.S.C. § 12102(2)) (alteration in

original). A “major life activity” is a “basic activity that the average person in

the general population can perform with little or no difficulty,” and includes

walking, standing, sitting, lifting and working. Doyal, 213 F.3d at 495-96

(quotation marks and citation omitted). In order for the impairment to be

substantially limiting, the individual must be:

(1) [u]nable to perform a major life activity that the average person
in the general population can perform; or (2) [s]ignificantly restricted
as to the condition, manner or duration under which an individual can
perform a particular major life activity as compared to the condition,
manner, or duration under which the average person in the general
population can perform that same major life activity.

Id. at 496 (quoting 29 C.F.R. § 1630.2(j)(1)). Moderate restrictions on the ability

to walk and stand have been determined not to amount to a substantial limitation, 4

and we have held comparative evidence must be produced on the issue of lifting

to show such an activity is substantially limited, unless the impairment appears

4
See Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1025 (5th Cir. 1999)
(walking); Penny v. United Parcel Serv., 128 F.3d 408, 415 (6th Cir. 1997)
(same); Kelly v. Drexel Univ., 94 F.3d 102, 106 (3rd Cir. 1996) (same); 29 C.F.R.
Pt. 1630, App. 1630.2(j) (same). See also Taylor v. Pathmark Stores, Inc., 177
F.3d 180, 186-87 (3rd Cir. 1999) (standing); Gallimore v. Newman Mach. Co.,
301 F.Supp.2d 431, 445-46 (M.D.N.C. 2004) (same).

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substantially limiting on its face. See Lusk, 238 F.3d at 1240-41. To aid in

assessing whether a major life activity is substantially limited, the evaluator must

consider the type and severity of the impairment, the length of time the

impairment has lasted or is expected to last, and the expected permanent and/or

long-term impact of the impairment, 29 C.F.R. § 1630.2(j)(2), as well as any

mitigating or corrective measures. See Pack v. Kmart Corp., 166 F.3d 1300,

1305-06 (10th Cir. 1999).

In this case, Ms. Burns has failed to show she has a disability, either

through evidence of a physical or mental impairment that substantially limits one

or more of the major life activities; a record of such an impairment; or being

regarded as having such an impairment. Doyal, 213 F.3d at 495. With respect to

a major life activity, Ms. Burns has failed to show any inability or restriction in

lifting, standing, or walking. In fact, during her interview and physical, she

indicated her ability to perform such major life activities at work, and in fact, did

so on numerous occasions while voluntarily performing overtime at the Mint.

Even though she now complains she had difficulty walking and standing on three

or four occasions during her eleven months of employment at the Mint, this is

clearly insufficient to show she cannot perform these activities in the condition,

manner or duration of the average person. Doyal, 213 F.3d at 496. Moreover,

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nothing in the record shows her walking, standing and lifting problems, if any,

were severe, long-term or had a permanent impact.

Second, no record of an impairment exists to show Ms. Burns suffers from

the disability she claims, other than her own self-serving, contradictory,

conversational declarations to other employees she had lupus, and one excuse she

gave for missing work due to a “lupus flare-up.” These representations are

insufficient to create a record of disability sufficient to overcome summary

judgment, especially when considered together with: 1) her statement on the Self-

Identification of Handicap form that she had no disability; 2) an entry on her

physical examination form in which she indicated she no longer suffered from

lupus; 3) her statements to a supervisor and other employees at the Mint she was

not sure she had lupus and that a doctor told her she did not have lupus; 4) her

failure to provide medical documentation she suffered from such a condition,

especially given Mr. Romero told her any future sick leave must be supported by

a doctor’s note; 5) her lack of such a diagnosis by the three rheumatologists who

examined her on at least four occasions from 1998 to 2002; 6) her representations

when applying for the position that she could perform the functions of standing

and walking for eight hours and lifting twenty-eight to fifty pounds; and 7) her

actual performance of those functions, together with her frequent ability to work

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overtime over the course of her eleven-month probationary period. In addition, as

the district court pointed out, Ms. Burns failed to provide medical or other

evidence to counter the Mint’s expert's opinion she did not suffer from lupus,

which is only one more factor in this case which we considered in determining

Ms. Burns fails to show she is a qualified individual with a disability under the

ADA. Thus, contrary to Ms. Burns's contentions, her failure to survive summary

judgment is not based solely on the fact she failed to provide formal medical

documentation of her disability.

Nonetheless, Ms. Burns claims she gave the Mint sufficient notice of her

disability by telling other employees she had lupus; and in support, relies on our

decision in Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999).

However, in that case, this court discussed the interactive process which occurs

after an employee provides notice of the following: 1) the disability; 2) the

resulting limitations of that disability; and 3) the desire for reassignment if no

accommodation is possible in the employee’s existing job. Id. at 1171-72. We

pointed out a plaintiff could only survive summary judgment by showing he or

she is a disabled person within the meaning of the ADA and made her or his

limitations and requests for accommodation known to the employer. Id. at 1179.

In this case, Ms. Burns has failed, as previously discussed, to show she is disabled

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under the ADA, or that she sufficiently notified the Mint of any limitations

resulting from a disability, or requested an accommodation. Specifically, Ms.

Burns's request for “light duty” on the mills, based solely on her self-serving,

contradictory verbal declarations as to her lupus condition, without more, was

insufficient to place the Mint on notice of a disability, any limitations resulting

therefrom, or a request for accommodation. In addition, the record shows the two

individuals who were considered over Ms. Burns for the mill position were

considered more qualified based on certain legitimate scoring methods, and that

the woman who was accommodated for lupus had presented the Mint with

medical documentation confirming her disability.

Finally, nothing in the record shows Ms. Burns was ever regarded as having

lupus. For these reasons, the district court did not err in finding Ms. Burns had

not shown she suffered from a disability for the purposes of bringing a Title VII

claim.

C. Sexual Harassment

In asserting the district court erred in rejecting her sexual harassment

claim, Ms. Burns suggests the totality of the circumstances shows a sufficiently

severe or pervasive environment existed to make her case unsuited for summary

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judgment. In support, she reiterates every fact or allegation which in any way

lends support to her contentions, claiming together they show an environment

replete with sexual innuendo, where her supervisors, Mr. Cruz and Mr. Romero,

made it “clear to [her] that tangible job benefits would be rewarded for those who

dated men in management.”

For a hostile environment claim to survive a summary judgment
motion, a 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 the victim’s employment and create an abusive working
environment.

O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1097 (10th Cir. 1999)

(quotation marks, alteration, and citations omitted). This requirement is “crucial

... to ensure that courts and juries do not mistake ordinary socializing in the

workplace—such as ... horseplay or ... flirtation—for discriminatory ‘conditions

of employment.’” Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 81

(1998). “Whether an environment is ‘hostile’ or ‘abusive’ can be determined only

by looking at all the circumstances ..., includ[ing] 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.” O'Shea at 1098 (quotation marks and

citations omitted).

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 “The severity and pervasiveness of the conduct must be judged from both

an objective and a subjective perspective,” and “[t]he objective severity of

harassment should be judged from the perspective of a reasonable person in the

plaintiff’s position, considering ‘all the circumstances.’” Id. at 1097-98

(quotation marks and citation omitted). This may include “the social context in

which the particular behavior occurs and is experienced by its target,” and

requires “[c]ommon sense, and an appropriate sensitivity to social context ... to

distinguish between simple teasing ... and conduct which a reasonable person in

the plaintiff’s position would find severely hostile or abusive.” Oncale, 523 U.S.

at 81-82. Thus, our inquiry requires an assessment of the “real social impact of

workplace behavior [based] on a constellation of surrounding circumstances,

expectations, and relationships which are not fully captured by a simple recitation

of the words used or the physical acts performed.” Id. at 82.

With regard to quid pro quo sexual harassment, we have said that “[w]hen a

plaintiff proves that a tangible employment action resulted from a refusal to

submit to a supervisor’s sexual demands, he or she establishes that the

employment decision itself constitutes a change in the terms and conditions of

employment that is actionable under Title VII.” See Smith v. Cashland, Inc., 193

F.3d 1158, 1160 (10th Cir. 1999). An employer may refute a quid pro quo

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harassment claim by either proving no negative employment action took place or

establishing it made the termination decision for legitimate business reasons and

not because the employee refused to submit to sexual demands. Id.

We begin with Ms. Burns's claim on appeal that she experienced quid pro

quo sexual harassment because her supervisors made it “clear to [her] that

tangible job benefits would be rewarded for those who dated men in

management.” While we cannot condone any sexually-oriented or coarse

comments Mint supervisors may have made to Ms. Burns, the totality of the

circumstances does not show, as Ms. Burns now contends, that either of her

supervisors made demands which, if she either accepted or refused, would result

in a certain outcome. In other words, she has not shown she was promised

tangible job benefits if she dated them or experienced reprisal when she refused

to have a relationship with them. In fact, while Mr. Cruz and Mr. Romero made

comments Ms. Burns believed meant they were asking her out, she admitted they

left her alone when she made it clear she was not interested in dating them. She

has also acknowledged Mr. Romero did not make sexually advancing or sexually

harassing comments to her.

Moreover, nothing about the t-shirts Mr. Cruz gave Ms. Burns is suggestive

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of any sexually-related expectation, especially given he also gave other crew

members t-shirts. However, the alleged comments he made about sleeping with a

supervisor to get his job when Ms. Burns asked about receiving more training on

certain machines is of concern and, as Ms. Burns contends, could be construed as

quid pro quo sexual harassment. However, in this case, it appears Ms. Burns did

get the training she sought without dating Mr. Cruz, as evidenced by her

withdrawal of her EEO complaint requesting training. In addition, the Mint has

provided substantial evidence Ms. Burns was discharged for performance and

attendance deficiencies, and not for anything involving Mr. Cruz’s behavior,

thereby providing legitimate and nondiscriminatory reasons for her termination.

While she complains she could have performed her job better if she had timely

received the training she requested, she still has not overcome the deficiencies in

her attendance at a facility where attendance was critical in order to meet national

production standards.

We also view Ms. Burns's supervisors’ behavior in view of her more

general sexual harassment claim in determining whether the circumstances

presented in this case caused Ms. Burns to experience a severely hostile or

abusive work environment. See Oncale, 523 U.S. at 81-82. The record on appeal

shows Ms. Burns participated, albeit sometimes less than enthusiastically, in the

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sexual banter and innuendo which she now complains detrimentally affected her,

but which she has not shown affected her performance at work. In so doing, Ms.

Burns admits the “vulgar” sense of humor of her co-workers “kind of rubbed off

on [her].” While she complains Mr. Cruz’s comment about her cleavage made her

feel like “a piece of meat,” she similarly told her other supervisor he had a “tight

butt,” evidencing her participation in the same type of sexual banter as her

supervisors. While she complains Mr. Cruz discussed his sex life with her, Ms.

Burns admits she also volunteered information about her own sex life, including

information about her ex-husband. Equally indicative of her acquiescence in such

behavior is her admission she asked Mr. Romero for a copy of raunchy jokes and

then, astonishingly, passed them on to her teenage son. Viewing Ms. Burns's

supervisors’ conduct, together with her own behavior and the entire social context

in which such conduct occurred, we believe the circumstances presented in this

case did not cause Ms. Burns to experience a severely hostile or abusive work

environment. See id. at 81-82.

Similarly, while we do not condone the viewing of pornographic materials

at a government facility, we do not find the circumstances described by Ms. Burns

established an environment “permeated with discriminatory intimidation, ridicule,

and insult that [was] sufficiently severe or pervasive to alter the conditions of

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[her] employment and create an abusive working environment.” O’Shea, 185 F.3d

at 1097 (quotation marks and citations omitted). While Ms. Burns complains

about the pornographic materials she saw, she actually approached a group of men

to see one of the pictures; admits some of the pictures were not offensive to her;

and acknowledges she participated in their viewing, at times laughing and

chuckling or making lewd and crude comments. Thus, we find Ms. Burns's own

behavior indicative in defining the social context in which the particular

complained-of behavior occurred, and cannot say, with respect to the viewing of

the pornographic photographs, that she has shown she experienced a severely

hostile or abusive work environment, given her own participation in it. See

Oncale, 523 U.S. at 81-82.

In addition, with respect to two of the pictures Ms. Burns found offensive,

she acknowledges she was never shown them again once she complained about

them. Even though the Mint maintained a written sexual harassment policy and

Ms. Burns had experience with the Mint’s Equal Employment Opportunity Office,

she admitted she never “seriously” informed anyone she was offended by any of

the sexual materials. Finally, while she complains Mr. Romero was aware another

employee brought pornographic material into the workplace prior to and during

1999, when Ms. Burns was employed at the Mint, Mr. Romero did verbally

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counsel that employee in 1999 about his behavior, including discussion about

bringing in one of the photos about which Ms. Burns now complains. Thus, under

the totality of the circumstances presented in this case, we agree with the district

court’s assessment that insufficient evidence exists to establish conduct

sufficiently severe or pervasive to alter the condition of Ms. Burns's employment

and create an abusive working environment.

D. Retaliation

Weakest of all is Ms. Burns's claim Mint employees took adverse actions

against her in retaliation for her moving in with a co-employee, and her comments

to the EEO counselor that she believed she was being sexually harassed because

she would not give in to Mr. Cruz's or Mr. Romero's “whims,” and instead moved

in with Mr. Watts. Specifically, Ms. Burns claims the Mint’s retaliation against

her began around October, after she moved in with Mr. Watts, as evidenced by

Mr. Romero’s counseling of her in November about her leave issues. After she

went to the EEO counselor in early December, she points out the retaliation

continued because Mr. Romero met with her on December 17, 2000, to place her

on a performance improvement plan, and thereafter, told her she had to bring in

medical documentation for her sick leave. Ultimately, the retaliatory, adverse

action of which she complains is her termination, and she contends the Mint’s

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reasons for discharging her are merely a pretext for discriminatory reasons. She

also complains, however, that she was terminated based on her last sick leave

absence, which was related to lupus, thereby also implicating a retaliation claim

based on her disability.

To establish a prima facie case of retaliation under Title VII of the Civil

Rights Act the employee must demonstrate: 1) she engaged in a protected

employee action; 2) the employer took an adverse action either after or

contemporaneous with the employee’s protected action; and 3) a causal

connection existed between the employee’s action and the employer’s adverse

action. See Dick v. Phone Directories Co., 397 F.3d 1256, 1267 (10th Cir. 2005)

(considering retaliation claim based, in part, on hostile environment claim);

Morgan v. Hilti, Inc., 108 F.3d 1319, 1324 (10th Cir. 1997) (considering

retaliation claim based on disability claim). “[The employee] may maintain an

action for retaliation even though the conduct forming the basis of her underlying

complaint was not adjudged to have violated Title VII.” Dick, 397 F.3d at 1267.

If the plaintiff establishes a prima facie case of ADA discrimination,
the burden shifts to the employer to offer a legitimate,
nondiscriminatory reason for the challenged action. ... If the
defendant articulates such a reason, then the plaintiff may prove that
it is merely a pretext for unlawful discrimination on the basis of her
disability.

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Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1259 (10th Cir. 2001). “When

assessing a contention of pretext, we examine the facts ‘as they appear to the

person making the decision to terminate [the] plaintiff,’” and “[w]e may not

second guess the business judgment of the employer.” Id. at 1261 (citations

omitted).

In this case, assuming Ms. Burns engaged in a protected employee action,

the record contains substantial evidence she was discharged for performance and

attendance deficiencies at a facility where performance and attendance are critical

in order to meet national production standards, thereby providing a legitimate and

nondiscriminatory reason for her termination. Her attempts to show these reasons

were merely a pretext for unlawful termination are unavailing. While Ms. Burns

complains she was discharged based on her last sick leave absence, which was

related to lupus, the doctor’s note for that absence states it was for lesions on her

feet, and does not mention lupus. Moreover, prior to this absence, Ms. Burns had

already taken unscheduled leave eighteen times, and had failed to meet the 95%

required production level on various coins at different times, thereby setting in

motion the legitimate, nondiscriminatory reasons for her discharge.

The same is true of the disciplinary or counseling actions taken by Mr.

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Romero. While they may have incidently coincided with her moving in with a co-

worker and her comments to the EEO counselor about her supervisors’ behavior,

it is clear that prior to these events, Ms. Burns had already accumulated many

instances of unscheduled leave, been tardy, and consistently failed to meet

production standards. Moreover, she has not shown Mr. Romero was aware of

her comments to the EEO counselor prior to the actions he took.

Consequently, Ms. Burns fails to show a causal link between her comments

to the EEO counselor and the Mint disciplining her, or that her alleged disability

was related to her termination. Under these circumstances, it is clear the Mint’s

articulated reasons for her termination were legitimate, and not mere pretext.

Accordingly, the district court did not err in rejecting Ms. Burns's retaliation

claim.

IV. Conclusion

For the foregoing reasons, we AFFIRM the district court’s grant of

summary judgment to the Government.

Entered by the Court:

WADE BRORBY
United States Circuit Judge

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