Pascouau v. Martin Marietta ( 1999 )


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  •                                                                              F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    JUL 14 1999
    TENTH CIRCUIT
    __________________________                   PATRICK FISHER
    Clerk
    RENEE L. PASCOUAU,
    Plaintiff-Appellant,
    v.                                                              No. 98-1099
    (D. Colo.)
    MARTIN MARIETTA CORPORATION, d/b/a,                         (D.Ct. No. 93-K-471)
    Martin Marietta Aeronautics Group, a Maryland
    Corporation doing business in Colorado,
    Defendant-Appellee.
    ____________________________
    ORDER AND JUDGMENT *
    Before BRORBY, HOLLOWAY, and BRISCOE, Circuit Judges.
    This case involves allegations of hostile work environment sexual
    harassment and retaliation under Title VII of the Civil Rights Act of 1964 ("Title
    VII"), 42 U.S.C. § 2000e     et seq. , and various common-law tort claims brought by
    Appellant Ms. Renee Pascouau against her former employer, Appellee Martin
    Marietta Corporation (Martin Marietta). She challenges the district court’s award
    *
    This order and judgment is not binding precedent except under the doctrines of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.
    of partial summary judgment dismissing her tort claims, the court’s adverse
    decisions on her remaining Title VII claims after a bench trial, and the court’s
    subsequent decision to award attorney’s fees and costs to Martin Marietta. We
    exercise jurisdiction under 
    28 U.S.C. § 1291
    , and affirm in part and reverse in
    part.
    I. Background
    Ms. Pascouau began her employment as a word processor with Martin
    Marietta in November 1982. In 1988, Martin Marietta transfered her to a
    different position in Document Control/Defense Systems (Document Control),
    where she worked until March 1991. During this time in Document Control, Ms.
    Pascouau alleges various Martin Marietta     co-workers and supervisors committed
    acts of sexual harassment against her that created a hostile work environment.
    She claims her male co-workers and supervisors frequently engaged in lewd
    discussions in the workplace about sex and their own sexual experiences. They
    also brought sexually suggestive materials into the office, including pornographic
    magazines and a novelty item called a “condom tree.” In addition, she claims
    they used vulgar language and told dirty jokes in her presence, and called her
    nicknames like “bumper” and “bullets” – names that ostensibly refer to her breast
    size. She also alleges her male co-workers verbally ridiculed and belittled her,
    -2-
    speculated about her sexual preferences, inappropriately commented about the
    physical attributes of other women in her presence, and engaged in “farting
    contests” and other offensive behavior in the office. Ms. Pascouau contends her
    direct supervisors knew about and participated in some of these activities, and did
    nothing to prevent the alleged harassment.
    In addition to this evidence of hostile work environment sexual harassment,
    Ms. Pascouau claims that after she complained about the situation in her
    workplace, Martin Marietta personnel failed to deal with the problem through
    investigation and discipline of the offending employees. Ms. Pascouau also
    alleges that her complaints to supervisors led to retaliation by other Martin
    Marietta employees in the form of verbal reprimands, poor work performance
    appraisals (id. at 26), offloading, 1 and demotion.
    Ms. Pascouau filed suit against Martin Marietta in 1992, bringing claims
    under federal law and Colorado common law. Her final amended complaint
    included allegations of hostile work environment sexual harassment, quid pro quo
    sexual harassment, retaliation, and Equal Pay Act violations under Title VII, as
    1
    “Offloading” is a term used by Martin Marietta to refer to the process of leaving
    a project or assignment.
    -3-
    well as common-law claims for breach of contract, promissory estoppel, extreme
    and outrageous conduct, invasion of privacy, and negligent supervision. The
    district court granted Martin Marietta’s subsequent motion for partial summary
    judgment on the tort claims, finding Title VII preempted her common-law claims
    that were based on the same conduct. The remaining claims were heard at a
    bench trial. Almost three years after the trial was completed, the court issued a
    Memoradum Opinion and Order deciding in favor of Martin Marietta. Following
    its decision, the district court awarded attorneys’ fees and costs to Martin
    Marietta as the prevailing party.
    II. Discussion
    Ms. Pascouau raises numerous issues for our consideration on appeal.
    First, she claims the district court erred in granting partial summary judgment for
    Martin Marietta because Title VII does not preempt or subsume her state law
    remedies. Second, she urges us to reverse the trial judgment because of the
    district court’s unusually long delay in passing judgment, and the fact that it
    based its decision on a review of the trial record which did not contain portions of
    her direct testimony. Third, she claims we should reverse because, without the
    missing portions of her direct testimony, she cannot present a complete record to
    this court for review. Fourth, she challenges the district court’s apparent reliance
    -4-
    on a hostile work environment standard which, when assessing the severity and
    pervasiveness of the alleged hostile work environment, took into account her co-
    workers’ experience and education level. Fifth, she claims the district court erred
    in ruling the conduct of Martin Marietta’s employees did not constitute a hostile
    work environment. Sixth, she alleges the district court incorrectly concluded
    Martin Marietta did not subject her to retaliation for opposing its allegedly
    unlawful employment practices. Seventh, she claims the district court abused its
    discretion when it admitted illegally obtained evidence. Eighth, she asserts the
    district court should not have allowed Martin Marietta to introduce evidence of
    her sexual history. Finally, she contends the district court erred in awarding
    attorneys’ fees to Martin Marietta because it did not find her testimony credible. 2
    We ordinarily would begin by reviewing the district court’s summary judgment
    rulings. However, because the district court’s resolution of the Title VII issues at
    the bench trial has some impact on our analysis of the state tort claims, we leave
    our discussion of the court’s partial summary judgment ruling on those state
    claims until the end.
    2
    Although considered by the district court in the proceedings below, Ms.
    Pascouau did not raise any of the following issues on appeal: quid pro quo theory of
    sexual harassment, discriminatory failure to promote based on gender, discriminatory
    unequal pay based on gender, breach of contract, and promissory estoppel. Therefore, we
    consider these issues waived. See State Farm Fire & Cas. Co. v. Mhoon, 
    31 F.3d 979
    ,
    984 n.7 (10th Cir. 1994) (failure to raise an issue in the opening brief waives the issue).
    -5-
    A.    Delay in Rendering Decision and Effect of the Incomplete Record
    Ms. Pascouau claims we must automatically reverse the district court’s
    decision because the court purposely and punitively delayed its decision for
    almost three years after the bench trial, and then decided the case by relying on a
    trial transcript which did not contain a portion of Ms. Pascouau’s direct
    testimony. We disagree. Although the district court apparently requested the trial
    transcripts before issuing its final ruling, that does not mean the court derived all
    of its conclusions, especially those regarding the credibility of witnesses, solely
    from the incomplete record. The judge deciding this case presided over the bench
    trial, and presumably assessed the veracity of the witnesses and the weight of the
    evidence at that time. See Green v. Branson, 
    108 F.3d 1296
    , 1305 (10th Cir.
    1997) (“We assume that the district court performed its review function properly
    in the absence of evidence to the contrary.”) Ms. Pascouau offers no evidence to
    the contrary. Accordingly, we hold the district court did not err in rendering a
    decision without the benefit of having a portion of the transcript of Ms.
    Pascouau’s direct testimony.
    Ms. Pascouau contends the extended period of deliberation reflects the
    judge’s desire to punish her for underestimating the time needed for trial. The
    district court’s order lends some credence to this claim. However, even assuming
    -6-
    the court’s long deliberation in this instance was punitive, Ms. Pascouau has
    produced no evidence showing this delay inherently prejudiced the judge's
    findings. Thus, while we are troubled by the length of time between trial and
    judgment, and encourage more efficient and speedy resolution of judicial matters
    whenever possible, in the absence of some showing of prejudice resulting from
    the delay, we find no reversible error.   See, e.g., Petrilli v. Drechsel   , 
    94 F.3d 325
    ,
    328-29 (7th Cir. 1996) (refusing, in the absence of any affirmative evidence of
    prejudice beyond the fact of a three-year delay, to order a new trial).
    B.     Incomplete Record on Appeal
    Focusing again on the incomplete record, Ms. Pascouau asserts we must
    reverse the district court’s decision because, without the missing portions of her
    direct testimony, we cannot determine whether the district court erred in its
    findings and conclusions. We disagree with her assessment. Ms. Pascouau’s
    argument ignores the clear instruction contained in Fed R. App. P. 10(c) which
    provides “[i]f the transcript of a hearing or trial is unavailable, the appellant may
    prepare a statement of the evidence or proceedings from the best available means,
    including the appellant’s recollection.” Under this rule, Ms. Pascouau could have
    prepared a statement reiterating her direct testimony and submitted it along with
    the Appellee’s objections and proposed amendments to the district court for
    -7-
    settlement and approval. The parties then could have included the statement in
    the record on appeal for our review. However, Ms. Pascouau did not avail
    herself of this remedy or show sufficient cause for her inability or failure to do
    so. 3 Consequently, we proceed based on the record before us, and we decline to
    reverse for a new trial because of the missing testimony.
    C.     Hostile Work Environment
    With regard to the resolution of her Title VII claims at the bench trial, Ms.
    Pascouau asserts the district court erred (1) when it found her co-workers
    conduct did not create a hostile work environment, and (2) when, in reaching this
    decision, the court relied on a standard which took into account the relative
    education and experience level of the perpetrators. We examine these issues
    separately.
    3
    Ms. Pascouau claims she could not reconstruct her missing testimony because
    she did not find out about the lost transcript until over two and a half years had gone by.
    However, we find it difficult to believe the passage of time caused her to completely
    forget the substance of her testimony at trial, and rendered her unable to assist her
    attorney in recapitulating her prior statements. In short, we do not find Ms. Pascouau’s
    claimed loss of memory excuses her failure to utilize the remedy available under Fed. R.
    App. P. 10(c).
    -8-
    1.     Hostile Work Environment Standard
    As for Ms. Pascouau’s dispute over the standard the district court used to
    assess her hostile work environment claim, we agree that if, in fact, the district
    court’s decision hinged solely on consideration of the experience and education
    of her co-workers, the court committed error. The standard applicable to hostile
    work environment claims is well-settled. The plaintiff must show “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."          Harris v. Forklift Systems, Inc   .,
    
    510 U.S. 17
    , 21 (1993) (citations and internal quotation marks omitted);          Penry v.
    Federal Home Loan Bank , 
    155 F.3d 1257
    , 1261 (10th Cir.1998),             cert. denied ,
    
    119 S. Ct. 1334
     (1999). The court must focus on both an objective and
    subjective analysis of the work environment with consideration given to “all the
    circumstances,” Harris 
    510 U.S. at 23
    ; Smith v. Northwest Fin. Acceptance, Inc              .,
    
    129 F.3d 1408
    , 1413 (10th Cir.1997), and “the social context in which particular
    behavior occurs and is experienced by its target.”       Oncale v. Sundowner Offshore
    Serv. Inc ., 
    523 U.S. 75
    , ___, 
    118 S. Ct. 998
    , 1003 (1998).
    The court’s Memoradum Opinion and Order states in part that it found “in
    their totality, the speech, jokes and conduct of the employees in the Document
    -9-
    Unit were consistent with their level of education and experience and, as such,
    constituted a work environment that was not so severe and pervasive as to alter
    Plaintiff’s conditions of employment so as to violate Title VII.” Although Ms.
    Pascouau asserts that the court’s apparent reliance on education and experience
    level is impermissible, we do not believe the district court erroneously rested its
    decision solely on the education and experience level of the perpetrators.
    Instead, a review of the court’s findings shows it merely considered the education
    and experience of the employees in Document Control as two of the many factors
    affecting the social context in which the allegedly offensive behavior occurred.
    Moreover, Ms. Pascouau ignores the fact that in the opening paragraph of its
    findings of fact and again in its conclusions of law, the district court stated the
    proper criteria for assessing a hostile work environment – complete with citations
    to appropriate Supreme Court authority. Given these repeated references to
    accepted legal standards and the court’s overall analysis, we do not believe the
    district court relied on any improper criteria to assess the work environment.
    2.     Hostile Work Environment Findings
    Ms. Pascouau also claims the district court erred in concluding the
    evidence did not show hostile work environment sexual harassment. Because the
    Title VII claims in this case already have been fully tried, we review the district
    -10-
    court’s findings of fact only for clear error.      David v. City & County of Denver   ,
    
    101 F.3d 1344
    , 1359 (10th Cir. 1996),       cert. denied , 
    118 S. Ct. 157
     (1997);
    Fed.R.Civ.P. 52(a). We accept the findings of the district court unless they are
    without support from the record, or unless, after reviewing all of the evidence,
    we are left with the definite and firm conviction that a mistake has been made.
    See Hicks v. Gates Rubber Co.,      
    928 F.2d 966
    , 971 (10th Cir. 1991). Whether
    this court would have made the same decision is not the issue. “We cannot
    reverse simply because we might have decided the case differently.”          
    Id.
    Ms. Pascouau raises several arguments contesting the district court’s
    findings. She initially challenges the court’s reliance on the testimony of other
    women employees to establish that the harassment was not sufficiently severe to
    constitute a hostile work environment. She claims the women’s testimony
    contradicts the court’s findings, and argues the court erred when it stated that one
    of the female witnesses testified that Ms. Pascouau openly joked about her own
    breast size with other employees, when, in fact, the witness only said joking
    occurred in the workplace on a daily basis and she could not specifically
    remember Ms. Pascouau joking about her own breasts. We disagree with Ms.
    Pascouau’s assessment and find the other women’s testimony, taken as a whole,
    supports the district court’s conclusions. The other women co-workers, whose
    -11-
    testimony Ms. Pascouau cites as contradicting the district court’s findings, stated
    they did not find the Document Control working environment sexually harassing
    or offensive, nor did Ms. Pascouau ever express to them any complaints she had
    about sexual harassment. Even though the court may have mistakenly stated the
    substance of a portion of the testimony of one witness to support a point in its
    Memoradum Opinion and Order, that error alone does not merit reversal of a
    decision based on over a week of extensive evidence presented by the parties.
    See Nulf v. International Paper Co.   , 
    656 F.2d 553
    , 561 (10th Cir.1981) (holding
    defects and inconsistencies in individual findings by the trial court that are so
    minor that they could not have been relevant to the outcome do not merit
    reversal).
    Ms. Pascouau further claims the district court did not adequately consider
    the fact that all of the women in Document Control complained about the “farting
    contests” that occurred, and found the conduct offensive. She admits the district
    court correctly decided the conduct is offensive irrespective of gender, but argues
    the court should not have refused to consider it as some evidence of generally
    offensive conduct and divisive behavior along gender lines. We conclude the
    district court properly refused to consider the “farting contests” as evidence of a
    hostile work environment. Although offensive, this conduct is clearly not
    -12-
    harassment on the basis of gender – even when viewed in concert with other
    conduct Ms. Pascouau claims is sexually harassing.    See Stahl v. Sun
    Microsystems, Inc ., 
    19 F.3d 533
    , 538 (10th Cir.1994) ("If the nature of an
    employee's environment, however unpleasant, is not due to her gender, she has
    not been the victim of sex discrimination as a result of that environment.").
    Ms. Pascouau also claims the district court improperly characterized her
    sexual harassment allegation as “secondary” to her equal pay and promotion
    complaint, and incorrectly found that she did not complain to the human
    resources supervisor about vulgar joking in the office. We agree with Ms.
    Pascouau that whether her sexual harassment complaint was secondary to other
    complaints is immaterial, and the record evidence appears to support her
    argument that she did make some complaint about the joking occurring in
    Document Control. Nevertheless, these arguments do not affect our evaluation of
    the district court’s treatment of Ms. Pascouau’s hostile work environment claim.
    The record shows the court thoroughly considered her sexual harassment claims
    and plainly acknowledged the fact that some vulgar joking occurred in the
    workplace, but not to a degree sufficient to create a sexually harassing hostile
    work environment. In light of the court’s obvious consideration of her
    harassment claim and the vulgar joking, its characterization of her harassment
    -13-
    claim as “secondary” and its failure to acknowledge that she complained about
    the joking to a supervisor does not render its overall hostile work environment
    decision infirm.
    In another argument, Ms. Pascouau contends the district court made no
    specific findings about whether the lewd talk by the men in Document Control
    alone was sufficiently severe or pervasive to alter the working environment. This
    argument is also unavailing in light of the court’s overall inquiry, which took
    into account “the coarse language, joking, and other inappropriate and immature
    behavior,” in deciding her hostile work environment claim.
    Ms. Pascouau also asserts the district court erred in discounting the
    significance of the presence of pornographic magazines in the workplace,
    because the evidence shows she knew about the magazines and expressed shock
    when she discovered them. Again, we are persuaded the district court fully
    considered this evidence and correctly found that, although inappropriate for the
    workplace, because the magazines were not openly displayed, nor were
    employees involuntarily subjected to viewing them, their presence did not
    contribute to the creation of a hostile work environment.
    -14-
    Finally, Ms. Pascouau faults the district court for concluding that because
    she may have joked with other employees about her breast size and used some
    vulgar language, she invited the use of sexually-suggestive nicknames, vulgar
    language, and derogatory remarks referring to her breast size by her male co-
    workers. We agree that a plaintiff’s participation in some lewd joking and
    isolated use of vulgar language does not mean that others in the workplace may
    then freely engage in what would otherwise constitute sexually harassing
    behavior toward him or her. However, we again emphasize that the district
    court’s analysis of hostile work environment claims does not turn exclusively on
    the nature of certain isolated incidents, but on the totality of the circumstances.
    Harris, 
    510 U.S. at 23
    . The factfinder must assess 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.”    Oncale , 523 U.S. at ___, 
    118 S. Ct. at 1003
    . The analysis requires the exercise of “[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.”   
    Id.
     Under this standard, even though some
    inappropriate comments and conduct occurred, the court could still find these
    -15-
    acts did not create a sexually harassing hostile work environment.      4
    Having reviewed each of Ms. Pascouau’s challenges, we find no
    meaningful instance where the district court’s decision is unsupported in fact or
    merits reversal. The court's findings, although not comprehensive, are adequate
    to inform us of the factual basis for its decision, and we recognize no grounds for
    concluding that the court proceeded under an erroneous view of the law or failed
    to give Ms. Pascouau's evidence proper consideration. Although the behavior
    exhibited in Ms. Pascouau’s workplace was plainly boorish, insensitive, and
    inappropriate, the district court permissibly found the conduct did not rise to the
    level of actionable hostile work environment sexual harassment under Title VII.
    D.     Retaliation
    Ms. Pascouau also claims she suffered retaliation from her department
    supervisor and co-workers following repeated complaints she made to Martin
    4
    Ms. Pascouau also challenges the district court for failing to acknowledge Martin
    Marietta’s negligent mishandling of her hostile work environment complaint, and
    mistakenly construing the company’s offer of another position as a sufficient remedial
    measure. However, in light of the court’s finding that Martin Marietta never subjected
    Ms. Pascouau to actionable hostile work environment sexual harassment, we need not
    reach the subsidiary issues of whether Martin Marietta negligently handled her complaint
    or failed to take adequate remedial steps.
    -16-
    Marietta personnel responsible for Equal Employment Opportunity compliance,
    and the district court improperly decided this claim by ignoring all of the adverse
    actions against her except Martin Marietta’s decision to off-load her from
    Document Control. Again, we emphasize that when a Title VII case has been
    fully tried, we review the district court's ultimate finding of no retaliation for
    clear error. Curtis v. Oklahoma City Pub. Schls. Bd. of Educ      ., 
    147 F.3d 1200
    ,
    1217 (10th Cir. 1998). “If there are two permissible views of the evidence, the
    fact-finder's choice between them cannot be clearly erroneous."      
    Id.
     (internal
    quotation marks and citation omitted). We must give due regard to the district
    court's firsthand opportunity to judge the credibility of the witnesses and weigh
    the evidence presented. Fed. R. Civ. P. 52(a);    Ebert v. Lamar Truck Plaza , 
    878 F.2d 338
    , 338 (10th Cir.1989).
    Our review of the record establishes there was evidence supporting the
    court's finding of no retaliation. Martin Marietta presented evidence at trial to
    support its assertion that the decision to off-load Ms. Pascouau was based on the
    business necessity created by overall downsizing and budget cuts, not in
    retaliation for her complaints. The evidence also establishes that Martin Marietta
    made decisions about which employees to off-load based on non-discriminatory
    factors like job performance, unit chemistry, and work history. We find the trial
    -17-
    court reasonably inferred from the evidence that Martin Marietta’s decision to
    off-load Ms. Pascouau was based on non-discriminatory motives, not in
    retaliation for complaining to Martin Marietta supervisors.
    Although Ms. Pascouau further claims retaliation based on “all of the other
    patently adverse incidents leading up to the off-load, and ... demotion ‘offer,’”
    she cites nothing in the record to substantiate her claims. In the absence of
    essential record references in Ms. Pascouau’s opening brief, we will not address
    her contentions or sift through the record to find support for her arguments.
    S.E.C. v. Thomas , 
    965 F.2d 825
    , 827 (10th Cir. 1992). Consequently, we affirm
    the district court's ruling on Plaintiff's Title VII retaliation claim.
    E.    Evidentiary Rulings
    Ms. Pascouau contends the district court made two erroneous evidentiary
    rulings during the trial that merit reversal and remand for retrial. First, she
    claims the court erroneously permitted Martin Marietta to introduce prejudicial,
    illegally-obtained evidence from a confidential Personal Security Questionnaire.
    Martin Marietta sought to use the information from the questionnaire in support
    of an after-acquired evidence affirmative defense showing Ms. Pascouau
    submitted false information about her past use of illicit drugs during the process
    -18-
    of obtaining security clearance from the government, and therefore would not
    have been retained in her position in Martin Marietta’s classified or restricted
    access program in any event. Second, Ms. Pascouau contends the trial court
    erroneously refused to exclude prejudicial evidence of her past sexual history.
    We review the district court's decision to exclude or admit evidence under
    an abuse of discretion standard.   Sanjuan v. IBP, Inc. , 
    160 F.3d 1291
    , 1296 (10th
    Cir. 1998). The “trial court's decision will not be disturbed unless [we] [have] 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."      McEwen v.
    City of Norman , 
    926 F.2d 1539
    , 1553 (10th Cir. 1991) (internal quotations
    omitted). In bench trials "questions raised relative to the admission or exclusion
    of evidence ... become relatively unimportant,” because the rules of evidence
    relating to admission and exclusion of evidence are “intended primarily for the
    purpose of withdrawing from the jury matter which might improperly sway the
    verdict.” United States v. Norman T. , 
    129 F.3d 1099
    , 1107 (10th Cir. 1997)
    (quotation marks and citations omitted),    cert. denied , 
    118 S. Ct. 1322
     (1998). In
    fact, we have held that “where a cause was tried before the court without a jury,
    it will be presumed on appeal that ... the court considered only competent
    evidence and disregarded that which was incompetent.”       
    Id.
     (quotation marks and
    -19-
    citation omitted).
    Both Ms. Pascouau’s arguments pertaining to the admission of evidence
    are unavailing. In her first claim, the evidence she alleges the district court
    erroneously admitted relates to Martin Marietta’s after-acquired evidence
    affirmative defense. Because the district court found Martin Marietta did not
    retaliate against Ms. Pascouau or subject her to a hostile work environment, the
    trial court did not need to examine the merits of Martin Marietta’s affirmative
    defense. Likewise, our decision to affirm the district court’s conclusions on
    appeal makes it unnecessary for us to examine affirmative defenses or the court’s
    treatment of evidence supporting those defenses.    See Cannon Oil & Gas Well
    Serv., Inc. v. Evertson , 
    836 F.2d 1252
    , 1257 (10th Cir. 1987) (ruling that in light
    of the jury’s finding for the defendant on the merits, and the court’s finding of
    sufficient evidence to support the findings, the issue of the trial court’s handling
    of the affirmative defenses is moot).
    As for the district court’s decision to admit evidence of Ms. Pascouau’s
    sexual history, we assume without deciding the district court erroneously allowed
    the introduction of evidence of her sexual history without requiring proper
    -20-
    compliance with Fed. R. Evid. 412.     5
    Nevertheless, we find any error was
    harmless. “Evidence admitted in error can only be prejudicial if it can be
    reasonably concluded that ... without such evidence, there would have been a
    contrary result."   Sanjuan 
    160 F.3d at 1296
     (quotation marks and citations
    omitted). Ms. Pascouau points to no particular instances in the record where the
    district court admitted prejudicial sexual history testimony over her objection.
    An examination of the record and district court findings persuades us that
    excluding the evidence Ms. Pascouau challenges would not have changed the
    result. Indeed, the district court’s findings reveal no meaningful reliance on any
    of the sexual history evidence Martin Marietta presented. The court’s only
    reference to Ms. Pascouau’s sexual history is a passing comment in its
    recapitulation of expert psychiatric testimony about the effect of her past
    unsuccessful intimate relationships. Accordingly, we decline to reverse on this
    5
    Ms. Pascouau correctly notes the court may only admit evidence offered to prove
    the sexual behavior or predisposition of any alleged victim of sexual misconduct if its
    proponent satisfies the "balancing test" articulated in Fed. R. Evid. 412(b)(2). In addition,
    Fed. R. Evid. 412(c) requires the proponent to follow certain procedures in order to
    determine the admissibility of evidence proffered under the rule – including filing a
    written motion at least fourteen days before trial that specifically describes the evidence
    and states the purpose for which it is offered. Fed. R. Evid. 412(c)(1)(A). The trial court
    must then conduct an in camera hearing and afford the victim and parties a right to attend
    and voice any objections. Fed. R. Evid. 412(c)(2). In this case Martin Marietta
    admittedly failed to follow these procedures, yet the court still allowed the presentation of
    sexual history evidence.
    -21-
    basis.
    F.       Attorneys’ Fees
    Ms. Pascouau asserts the district court improperly awarded attorneys’ and
    expert witness fees to Martin Marietta as the prevailing party.     See 42 U.S.C.
    § 2000e-5(k). We ordinarily review the court’s decision regarding attorneys’ fees
    for an abuse of discretion.   Mares v. Credit Bureau of Raton     , 
    801 F.2d 1197
    ,
    1201 (10th Cir.1986). In this case, however, our review is somewhat
    complicated by the fact the district court granted Martin Marietta’s motion for
    attorneys’ and expert witness fees, and its motion to amend the order granting the
    fees, without expressing reasons for its decision. We are left to presume the
    court agreed with and based its decision on the arguments set forth in Martin
    Marietta’s original motion.
    The Supreme Court instructs that “a district court may in its discretion
    award attorney’s fees to a prevailing defendant in a Title VII case upon a finding
    that the plaintiff’s action was frivolous, unreasonable, or without foundation,
    even though not brought in subjective bad faith.”      Christiansburg Garment Co. v.
    Equal Employment Opportunity Comm’n,          
    434 U.S. 412
    , 421 (1978);   see also,
    Jane L. v. Bangerter , 
    61 F.3d 1505
    , 1513 (10th Cir. 1995). Martin Marietta’s
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    primary contention in the original motion requesting attorneys’ and expert
    witness fees was that because the court did not find Ms. Pascouau’s testimony
    credible, the court should consider her claim frivolous. We do not agree. A
    review of the record persuades us that Ms. Pascouau’s lawsuit was not frivolous,
    unreasonable or without foundation. Although the district court ultimately
    rejected her claims and discredited her testimony, such findings alone do not
    mean her lawsuit was devoid of any legitimacy. On the contrary, the issues and
    evidence presented in this case called for careful consideration of several
    questions at trial, especially with regard to the severity and pervasiveness of the
    alleged sexually-harassing conduct in the workplace. Consequently, we find the
    court abused its discretion in awarding attorney’s and expert witness fees to
    Martin Marietta and revrse the award.    6
    G.     Partial Summary Judgment on State Law Claims
    We review de novo the district court’s decision to award partial summary
    judgment, employing the same legal standard as the district court and construing
    the factual record and the reasonable inferences therefrom in the light most
    favorable to the party opposing summary judgment.          See Kaul v. Stephan , 
    83 F.3d 6
    Having decided to reverse the district court’s award of attorney’s fees on other
    grounds, we need not reach the issue raised by Ms. Pascouau regarding the retroactive
    application of the expert witness fees provision of 42 U.S.C. § 2000e-5(k).
    -23-
    1208, 1212 (10th Cir. 1996). Summary judgment is appropriate if the record
    shows “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.” Fed. R. Civ. P. 56(c). An issue of
    material fact is genuine only if a party presents facts sufficient to show that a
    reasonable jury could find in favor of the nonmovant.    Anderson v. Liberty
    Lobby, Inc. , 
    477 U.S. 242
    , 248 (1986).
    In its order granting partial summary judgment for Martin Marietta on Ms.
    Pascouau’s claims of outrageous conduct, negligent supervision, and invasion of
    privacy, the district court ruled that the federal statutory scheme under Title VII
    preempted these state tort law actions. The court reasoned that because the state
    claims were based on the same conduct as the alleged employment
    discrimination, permitting Ms. Pascouau to proceed on those claims would allow
    her to circumvent the “administrative and remedy restrictions of Title VII.”
    We disagree with the district court’s preemption analysis. Section 708 of
    Title VII, 42 U.S.C. § 2000e-7, makes it plain Title VII does not “exempt or
    relieve” defendants from any “liability” or “duty” of state law unless such law
    requires or permits “the doing of any act which would be an unlawful
    employment practice” under Title VII. Accordingly, the test for determining if
    -24-
    Title VII preempts state law is whether the state law permits employment
    practices that violate or contradict Title VII.      See California Fed. Sav. & Loan
    Ass’n v. Guerra, 
    479 U.S. 272
    , 290-91 (1987). Federal law generally preempts
    state law only in cases where "compliance with both federal and state regulations
    is a physical impossibility,"   Florida Lime & Avocado Growers, Inc. v. Paul       , 
    373 U.S. 132
    , 142-43 (1963), or the state law “stands as an obstacle to the
    accomplishment and execution of the full purposes and objectives of Congress."
    Hines v. Davidowitz , 
    312 U.S. 52
    , 67 (1941).         Guerra makes it plain that Title
    VII does not manifest Congress’ intent to “‘occupy the field’ of employment
    discrimination law,” 
    479 U.S. at 281
    , especially in cases like this, where the state
    tort claims Ms. Pascouau made merely augment her federal claims and do not
    conflict with the provisions of Title VII or prevent the accomplishment of its
    purposes. See Hirase-Doi v. U.S. West Communications, Inc           . 
    61 F.3d 777
     (10th
    Cir. 1995) (implicitly deciding Title VII does not preempt state tort claims by
    considering without objection both an employee’s state tort and Title VII claims
    against her employer). Consequently, we hold the district court should not have
    granted summary judgment on this basis.           See, e.g., Alexander v. Gardner-Denver
    Co. , 
    415 U.S. 36
    , 48-49 (1974) (“[T]he legislative history of Title VII manifests
    a congressional intent to allow an individual to pursue independently his rights
    under both Title VII and other applicable state and federal statutes.”).
    -25-
    However, this conclusion does not end our analysis. “We are free to affirm
    a district court decision on any grounds for which there is a record sufficient to
    permit conclusions of law, even grounds not relied upon by the district court.”
    United States v. Sandoval , 
    29 F.3d 537
    , 542 n.6 (10th Cir. 1994). In this
    instance, then, we may look beyond the preemptive effect of Title VII and
    examine the sufficiency of Ms. Pascouau’s state tort claims in light of relevant
    findings and conclusions from the bench trial. Our analysis of the state tort
    claims may go beyond a de novo review of the record before the district court at
    the time it considered the motion for summary judgment and examine the
    potentially dispositive effects of the district court’s ultimate Title VII factual
    findings on the previously dismissed state claims, because the state tort actions
    dismissed on summary judgment rely on essentially the same conduct as the
    federal Title VII claims adjudicated at the subsequent trial.   7
    1.     Outrageous Conduct / Intentional Infliction of Emotional Distress
    Colorado law sets a high standard for outrageous conduct claims. In order
    to prove outrageous conduct or intentional infliction of emotional distress, the
    behavior must be “so    extreme in degree, as to go beyond all possible bounds of
    7
    Ms. Pascouau expressly admits she relies on the same evidence to support both
    her Title VII and state common-law claims.
    -26-
    decency, and ... be regarded as atrocious, and    utterly intolerable in a civilized
    community." Coors Brewing Co. v. Floyd , 
    1999 WL 9769
     *4 (Colo. Jan. 11,
    1999) (en banc) (quotation marks and citation omitted & emphasis added). The
    "defendant's conduct must be more than unreasonable, unkind or unfair; it must
    truly offend community notions of acceptable conduct."       Grandchamp v. United
    Air Lines, Inc. , 
    854 F.2d 381
    , 383 (10th Cir. 1988) (applying Colorado law),      cert.
    denied , 
    489 U.S. 1080
     (1989). Simply stated, "liability ... does not extend to
    mere insults, indignities, threats, annoyances, petty oppressions, or other
    trivialities." Restatement (Second) of Torts § 46, cmt. d (1965).
    Thus, as a threshold matter, we examine all the evidence before the district
    court in the light most favorable to Ms. Pascouau and determine whether any
    reasonable juror could find the conduct she complains of meets the high standard
    set forth in Coors . We conclude the comments made toward her and the conduct
    of her co-workers, although sexually explicit, immature, and rude, were not
    “egregious” enough for any reasonable juror to find they constitute outrageous
    conduct. Coors , 
    1999 WL 9769
     *3. For this reason, we affirm summary
    judgment on Ms. Pascouau’s outrageous conduct claim.
    2.     Negligent Supervision
    -27-
    Colorado law recognizes the tort of negligent supervision, holding “[a]n
    employer may ... be subject to liability for negligent supervision if he knows or
    should have known that an employee's conduct would subject third parties to an
    unreasonable risk of harm."    Moses v. Diocese of Colo. , 
    863 P.2d 310
    , 329 (Colo.
    1993) (quotation marks and citation omitted).,   cert. denied , 
    511 U.S. 1137
    (1994).
    In support of her negligent-supervision claim, Ms. Pascouau argues that
    Martin Marietta has a duty under Title VII, Equal Employment Opportunity
    Commission rules, and its own internal policies and procedures to properly
    supervise its agents and investigate, remediate, and discipline instances of sexual
    harassment and retaliation. She contends Martin Marietta breached its duty by
    allowing her co-workers and various supervisors to engage in continuing acts of
    harassment and retaliation against her.
    We find these allegations insufficient to support a negligent-supervision
    claim in light of the district court’s findings in this case. After having the
    opportunity to prove her Title VII claims at trial, Ms. Pascouau was unable to
    establish that Martin Marietta employees sexually harassed her, subjected her to a
    hostile work environment, or caused her harm or injury as a result of their
    -28-
    conduct. Because an element of Ms. Pascouau’s negligent supervision claim –
    having been subjected to an unreasonable risk of harm – was dependent on the
    proof of the same conduct and injury as she alleged in support of her Title VII
    claim, the failure of her Title VII claim renders her negligent supervision claim
    legally deficient as well. We therefore affirm summary judgment on this claim.
    3.         Invasion of Privacy
    The final pre-trial order sets out Ms. Pascouau’s claims for invasion of
    privacy, including: (1) “false light” based on Martin Marietta employees’ alleged
    false statements about her mental stability and sexuality, and the retributive
    removal of her security access and clearance in a way that falsely indicated to
    others that she committed a security breach; and (2) “intrusion into seclusion”
    based on the same factual allegations of sexual harassment supporting her Title
    VII claims.   8
    We examine these claims in turn.
    8
    In a later Motion for Reconsideration – in which Ms. Pascouau requested the
    court’s permission to amend her complaint – she attempted to bolster her invasion of
    privacy claim and separate it from the facts underlying her discrimination claims by
    asserting Martin Marietta collected and possessed inherently private information about
    her and other employees without their consent. The district court denied this motion for
    reconsideration and the request to amend. Thus, our consideration of those additional
    allegations on appeal is limited to a review of the district court’s decision to deny the
    motion. Although Ms. Pascouau raised the issue of the court’s refusal to grant her leave
    to amend in her Notice of Appeal, she waived the argument by not presenting or
    developing it in her opening brief. See State Farm Fire & Cas. Co. v. Mhoon, 
    31 F.3d 979
    , 984 n.7 (10th Cir. 1994).
    -29-
    In order for Ms. Pascouau to prevail under Colorado law for false light
    invasion of privacy, she must show she “was         placed before the public   in a
    ‘false-light’ and that it was done with knowledge of its falsity or in reckless
    disregard of the truth.”   McCammon & Assoc., Inc. v. McGraw-Hill Broadcasting
    Co. , 
    716 P.2d 490
    , 492 (Colo. Ct. App. 1986) (emphasis added);          see Restatement
    (Second) of Torts § 652E (1977)). The element of publicity is critical to this
    cause of action.   See Restatement (Second) of Torts § 652E cmt. a. Restatement
    (Second) of Torts § 652D cmt. a, defines publicity as making a matter public “by
    communicating it to the public at large, or to so many persons that the matter
    must be regarded as substantially certain to become one of public knowledge.”
    We hold as a matter of law Ms. Pascouau’s allegations and supporting
    evidence presented to the district court prior to summary judgment do not fulfill
    this essential “publicity” element of false light invasion of privacy. Even if we
    assume Martin Marietta employees called her sexually suggestive names,
    ridiculed her, and implied Ms. Pascouau posed a security risk, she made no
    allegation and presented no evidence to show that Martin Marietta or its agents
    engaged in such conduct or disseminated private information that placed her in a
    false light before a public audience more extensive than her relatively small
    circle of co-workers in Document Control.          See also Ozer v. Borquez , 940 P.2d
    -30-
    371, 377 (Colo. 1997) (en banc) (publicity “requires communication to the public
    in general or to a large number of persons, as distinguished from one individual
    or a few”). Without some evidence showing the requisite publicity, her claim of
    false light invasion of privacy is deficient. Accordingly, we affirm summary
    judgment on this claim.
    As for Ms. Pascouau’s “intrusion into seclusion” invasion of privacy claim,
    Colorado law requires her to show that another person “has intentionally
    intruded, physically or otherwise, upon [her] seclusion or solitude,” and that a
    reasonable person would consider such intrusion offensive.       Doe v. High-Tech
    Inst., Inc ., 
    972 P.2d 1060
    , 1065 (Colo. Ct. App. 1998) (citing Restatement
    (Second) of Torts § 652B (1981)). In the usual case, intrusion into seclusion
    involves physical intrusion into a place where a plaintiff has secluded herself –
    such as a defendant forcing his way into the plaintiff’s home.    See Restatement
    (Second) of Torts § 652B cmt. b. However, intrusion into seclusion may also
    occur by the use of the physical senses to oversee or eavesdrop on the plaintiff's
    private affairs.   Id.
    In the present case, Ms. Pascouau alleges no independent facts supporting
    her intrusion into seclusion claim. Instead, she merely includes by reference the
    -31-
    conduct underlying her Title VII claims. A review of the allegations and
    evidence Ms. Pascouau proffers does not show Martin Marietta and its employees
    pried or intruded without consent into her private life and seclusion either
    physically or by other means. Even if we assume, as Ms. Pascouau argues, that
    her co-workers bothered her with inappropriate, prying questions about her sex
    life and sexual preferences, such conduct alone does not support a claim for
    intrusion into seclusion. The sexually suggestive questions were only requests
    for information. The tort of intrusion into seclusion requires more than a mere
    inquiry that reveals nothing; liability attaches only to an   unconsented invasion
    through physical or other means that actually gleans private information.      See
    High-Tech Inst. , 
    972 P.2d at 1065
     (“intrusion upon seclusion focuses on the
    manner in which information that a person has kept private has been obtained”).
    For these reasons, Ms. Pascouau fails to support an action for intrusion into
    seclusion invasion of privacy. Thus, we affirm summary judgment on this claim.
    III.
    For the foregoing reasons, we      AFFIRM the district court’s ruling in part.
    We REVERSE and REMAND with directions to vacate the order awarding
    attorney and expert witness fees to Martin Marietta.
    Entered by the Court:
    -32-
    WADE BRORBY
    United States Circuit Judge
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