Full opinion text
MEMORANDUM OPINION AND ORDER BROWNING, District Judge. THIS MATTER comes before the Court on Defendants’ Frontier Medical Inc. and Frontier Medical Equipment, Inc.’s Motion for Summary Judgment, filed November 29, 2004 (Doc. 18). The Court held a hearing on this motion on February 1, 2005. The Court took the motion under advisement and did not rule at that time. The Court, after reviewing the parties’ briefing and relevant case law, including the United States Court of Appeals for the Tenth Circuit recent decision in Chavez v. New Mexico, 397 F.3d 826 (10th Cir.2005), finds that the Defendants’ Frontier Medical, Inc., and Frontier Medical Equipment, Inc. (“Frontier”) are entitled to summary judgment on their federal claims. Having dismissed all claims on which the Court has original jurisdiction, the Court will dismiss all remaining claims — all of which sound in state law — without prejudice. FACTS The Plaintiff, Corine Velasquez, worked as an office assistant and equipment technician for Frontier Medical, Inc. (“Frontier Medical”), and Frontier Medical Equipment, Inc. (“Frontier Medical Equipment”), from October 2, 2001 to October 25, 2002. See Complaint for Damages and Jury Demand ¶¶ 4, 6, at 2 (filed December 9, 2003)(hereinafter “Complaint”); Affidavit of Michael D. Holt ¶ 3, at 1 (executed November 16, 2004)(hereinafter “Holt Aff.”). From October 25, 2002 to January 14, 2003, Velasquez worked as an equipment technician for Frontier Medical Equipment. See Complaint ¶¶ 4, 6, at 2 (filed December 9, 2003); Holt Aff. ¶ 3, at 1. Velasquez’ supervisors at Frontier Medical and Frontier Medical Equipment were Michael D. Holt, President of Frontier Medical and Frontier Medical Equipment, and Corina Chaves-Sambrano (“Sambra-no”), Vice President and Administrative Assistant for Frontier Medical. Holt Aff. ¶¶ 1-2, at 1. 1. Sexual and Racial Harassment. Velasquez alleges that various incidents by several of Frontier’s employees and supervisors created a hostile work environment in violation of Title VII. Velasquez contends that, while working at Frontier, she was placed in situations that made her feel “intimidated,” “embarrassed,” and “degraded.” Deposition of Corine Velasquez at 164:23 — 165:2 (hereinafter ‘Velasquez Depo.”). In support of this contention, Velasquez offers evidence of comments that two coworkers, Paula Wilkes and Coletta Zamora, made. As part of her job, Velasquez would travel once or twice a week to meet another employee, Tony Godac. See Complaint ¶ 21, at 5. When Velasquez would let either Wilkes or Zamora know of her destination, Wilkes and Zamora would make comments to suggest that Velasquez and Godac were having a sexual relationship, such as: “If you come back with a ponytail, we’ll know what you were doing;” “[Y]ou sure meet Tony a lot. Are you sure nothing is going on?;” and “Are you sure you are exchanging equipment and nothing else?” Id. ¶ 21, at 5; Velasquez Depo. at 156:21 — 157:22. Although it does not appear from the record that Holt made any of these comments to Velasquez, Velasquez testified that he would make comments such as: “I don’t know what’s going on between you and Tony and I don’t really care, just keep it out of the office.” Velasquez Depo. at 160:2-4. Velasquez testified that Wilkes and Zamora did not say anything to any other workers about meeting Godac. See id. at 166:4-6. Velasquez complained to her supervisor, Corina Sambrano, about Wilkes and Zamora’s comments, and Sambrano responded: “Don’t let them get to you.” Id. at 189:16. Sambrano also told Velasquez: “I know they didn’t like you because you are Chicana.” Id. at 189:8-9. Velasquez also testified that Sambrano referred to Wilkes and Zamora as “bitches.” Id. at 189:18. Velasquez also alleges that Zamora showed her a photograph of “a man that had his penis hanging down to his knees and a woman hugging his leg.” Id. at 178:24-25. Velasquez contends that Zamora “thought it was going to blow [Velasquez’] mind” because they knew how Holt’s jokes embarrassed her. See id. at 178:21-23. According to Velasquez, Wilkes and another coworker, Francis Christian, were also present when Zamora showed her this photograph. See id. at 179:15-19. Velasquez testified that Wilkes said, “Oh, man,” and started laughing. Id. at 179:5-7. Velasquez stated that Christian’s reaction suggested that she had maybe seen the photo before, and only stated, “Oh, god.” Id. at 179:21-24. Velasquez complained about this incident to Sambrano. See id. at 179:21 — 180:13. Sambrano allegedly responded by laughing about it, see id. 180:10, and telling Velasquez that Zamora kept the photograph so she would not “be in such a bad mood,” id. at 180:4-5. In another incident to which Velasquez refers to in support of her claim of sexual discrimination, Velasquez’ husband had sent her flowers at work. Id. at 162:2-5. Velasquez testified that Holt stated: “You must be doing something right for your husband to be sending you roses.” Id. at 162:6-7. In addition, when Godac telephoned the office, Wilkes answered the phone and commented to Godac that the flowers he had sent to Velasquez were beautiful. See id. at 162:8 — 163:2. Velasquez testified that these comments bothered her because it “continued the harassment of ... me and [Godac].” Id. at 163:9-10. Velasquez alleges that Holt also created a hostile environment by telling sexual jokes. According to Velasquez, Holt would “stand in the office and [tell] dirty jokes.” Id. at 166:10-11. Velasquez contends that, because all of the desks were lined up next to each other in the office, she had no choice but to listen to the jokes, although frequently she would walk away. See id. at 166:11-15. Velasquez asserted at her deposition that Holt got “a kick out of’ telling such jokes because he would point out that Velasquez’ face would turn red. See id. at 167:12-15. He would then laugh and continue telling the joke. See id. Although Velasquez does not provide the Court with evidence indicating how frequently such jokes were told, Velasquez testified that none of the conduct of which she complains occurred on a daily basis. See id. at 181:11-14. When asked for an example of the numerous sexual jokes and sexual innuendos, Velasquez recited a joke Holt told at work about a man who, based on a friend’s recommendation on how to attract more women, placed a potato in his swimsuit. See id. 167:18-168:12'. The man, however, placed the potato in the back side of his swimsuit. According to Velasquez, as Holt told this joke, he motioned in front of his genitals to indicate the potato’s bulge. See id. Velasquez testified that the other women present during the joke did not appear to be embarrassed. See id. at 168:19-22. Although she never told Holt that any of his jokes were improper or made her embarrassed, see id. at 169:3-8; id. at 172:25 — 173:3; Holt Aff. ¶ 16, at 5, Velasquez asserts that Holt knew she was uncomfortable based on her “actions.” Velasquez Depo. at 169:8-10. Velasquez concedes, however, that Holt never made any sexual propositions or advances. See id. at 189:20-23; Holt Aff. ¶ 17, at 5. Velasquez also alleges that Holt wore “real short, short skin tight shorts.” Velasquez Depo. at 342:8-9. Velasquez testified that this made her feel uncomfortable because she sat close to him when he stood at the front counter and “he bulged through his shorts.” Id. at 342:21-24. Velasquez conceded, however, that she did not complain to any one about Holt’s alleged inappropriate attire. See id. at 342:14-16. Velasquez also admitted that Holt’s attire did not prevent her from completing her work. See id. at 342:17-19. Another incident occurred when Velasquez answered the phone in the office and the person on the other end asked to speak to his “homosexual lover.” Id. at 170-.5-6. Velasquez testified that she was caught off guard, and was unsure of what to do until Christian explained that it was a doctor, Dr. Siedel, calling for Holt. See id. at 169:20-21; id. at 170:6-7. When Velasquez told Holt what occurred, Holt responded: “Well, haven’t you heard, the girls haven’t told you? That sexual harassment will not be tolerated, it will be graded[.]” Id. at 170:9-15. Velasquez testified that she “couldn’t believe what [she] was hearing out of the boss’[ ] mouth.” Id. at 170:17-18. Velasquez alleges that Holt laughed when she told him about Dr. Siedel’s call. See id. at 172:6-15. Finally, Velasquez testified about a conversation with Sambrano that made her “very uncomfortable.” Id. at 164:22. One day, while at the Ruidoso office with Sam-brano, see id. at 163:23-24, Sambrano allegedly told Velasquez that she lives in the mountains so that she can walk around naked in her house and that she and her daughter wear G-strings, see id. at 164:1-12. Velasquez claims that Sambrano’s comments made her uncomfortable and that Velasquez felt this information was none of her business. See id. at 164:13-15. Velasquez also offers other evidence which, although in isolation appears gender-neutral, the Court should consider when evaluating the totality of the circumstances of Velasquez’ work environment at Frontier. According to Velasquez, one day — although the date this occurred in relation to the other incidents is unclear— Wilkes and Zamora stopped Velasquez in the office and asked her if she stole popcorn from the back. See id. at 303:18— 306:10. Velasquez contends that she asked “everyone else,” and that she was the only one in the office that Wilkes and Zamora accused of stealing the popcorn. See id. at 237:6-13. Velasquez also mentions that Wilkes and Zamora made her feel like “an outsider,” and never included her in anything. Id. at 153:3-9. Velasquez alleges that, for Holt’s birthday, Wilkes and Zamora passed a birthday card around the office for “everybody” to sign except Velasquez. Id. at 153:10-13. Velasquez also testified that Wilkes and Zamora “were always whispering at [Zamora’s] desk.” Id. at 120:17. Although Velasquez could not hear what they were saying, Velasquez felt they were often talking about her. See id. at 120:19— 121:6. Velasquez also alleges that Christian told her that Velasquez was the Only employee to not receive a Christmas bonus in 2001, although Velasquez admits that she received a bonus in 2002. See id. at 322:10 — 323:19. Finally, Velasquez also contends that one morning Holt passed by her house three times and, when he saw her standing outside, he “headed [toward the main street] as fast as he could.” Id. at 82:8-25. Velasquez alleges that Holt then followed her to work. See id. at 83:1-7. Velasquez testified that she did not talk to Holt about this incident because she felt “intimidated,” id. at 88:5-8, and instead talked to Sambrano about it, explaining that Velasquez'thought it was “odd” that Holt “was passing in front of her house,” id. at 88:9-23. In response, Sambrano “didn’t really say much” and “just kind of laughed about it.” Id. at 89:1-2. ' Velasquez repeatedly testified that she did not quit her job with Frontier because she loved her job. See id. at 134:8; id. at 153:20-21; id. at 160:11-17; id. at 167:16-17; id. at 180:16-19; id. at 338:12-13. Moreover, Velasquez never went to a counselor, a psychologist, or a psychiatrist to seek professional help as a result of the alleged conduct by Frontier’s employees and supervisors. See id. at 194:25— 195:17. 2. Gender and Race Discrimination. Velasquez alleges that she was discriminated against “with regardf ] to the terms, conditions, and privileges of employment because of her gender (female),” that Frontier “did not subject other white male employees to the same adverse treatment for conduct similar or equal to” Velasquez’ adverse treatment, and that Velasquez was “subjected to adverse treatment due to her gender (female).” Complaint ¶¶ 44-46, at 9. Velasquez alleges that she was discriminated against by not being offered health insurance, see id.; Plaintiffs Response to Defendant’s Motion for Summary Judgment ¶ 10, at 3, filed December 27, 2004 (Doc. 29), to which she claimed she was entitled for part — if not all — of her employment, see Velasquez Depo. at 142:24— 143:10. When Velasquez worked for both Frontier Medical and Frontier Medical Equipment, from October, 2001, to October, 2002, Velasquez received two checks, one from Frontier Medical and one from Frontier Medical Equipment. See Holt Aff. ¶ 3 at 1-2; Velasquez Depo. at 90:4— 91:3. Velasquez contends, however, that although she worked only for Frontier Medical Equipment after October, 2002 until she was fired in January, 2003, she was required to do the same duties as she was before the change. See Velasquez Depo. at 91:3-20. Velasquez received health insurance through her husband’s policy until he was laid off from his job in January, 2002. See id. at 77:1-14. According to Velasquez, she was never informed that Frontier might provide health insurance, and did not ask whether it was available until she heard several coworkers discussing health insurance in August, 2002. See id. at 76:19-21; 80:1-23. According to Frontier, health insurance was only available to full-time Frontier Medical employees and that no Frontier Medical Equipment employee, whether full or part-time, received health insurance. See Holt Aff. ¶ 6, at 2. The difference between these two companies, according to Holt, is that Frontier Medical Equipment is a smaller business and cannot afford health insurance for its employees. See id. Velasquez, however, contends that Linda Robinson, an Anglo female, worked part-time for Frontier Medical and received health insurance. See Velasquez Depo. at 92:18 — 93:5. In addition, Velasquez alleges that Sambrano worked full-time for Frontier Medical Equipment and received health insurance. See id. at 93:15 — 94:2. In response, Holt alleges that Robson received health insurance because she was a full-time, as opposed to part-time, employee of Frontier Medical. See Holt Supp. Aff. ¶ 2(C), at 2. Moreover, Holt contends that Sambrano received health insurance because she worked for Frontier Medical, in addition to Frontier Medical Equipment. See id. ¶2(B) at 1-2. Velasquez also alleges a disparity in pay between herself and white male employees. See Complaint ¶ 45, at 9; Velasquez Depo. at 122:3-13. In her deposition, however, Velasquez testifies that Godac was the only person who made more money than her who should not have. See Velasquez Depo. at 125:4-20. Velasquez testified that Godac was an “Equipment Tech.” Id. at 124:10-11. Although Velasquez admitted she did not know how much Godac made and that she had never seen his paycheck, see id. at 122:18-19; id. at 123:7, Godac allegedly told Velasquez that he made “[a]bout a hundred dollars more than [she did],” id. at 123:1-4. Holt acknowledges that Godac earned more money than Velasquez, but claims this disparity was because Godac had worked at Frontier for a longer period. See Holt Supp. Aff. ¶2(0) at 2. Velasquez agrees that Godac had been working for Frontier longer than she had. See Velasquez Depo at 123:14-24. Velasquez alleges, however, the Godac had less job duties than she did, see id. at 122:10-13, and that she should have earned at least as much as Godac, see id. at 124:17-21. Holt alleges that Velasquez and Godac had the same job duties. See Holt Supp. Aff. ¶ 2(D) at 2. On January 14, 2003, Holt fired Velasquez because of her “poor work performance, negative attitude, [and] insubordination .... ” Holt Aff. ¶ 26, at 7. The Notice of Disciplinary Action states that Velasquez was terminated because of a negative attitude towards supervisors and other employees. See Notice of Disciplinary Action at 1 (January 14, 2003). In the discharge notice, Holt explained that she exhibited a negative attitude in their conversation, and that Holt and Sambrano had repeatedly warned her about that attitude. See id. at 2. To support its contention, Frontier also offers four additional Notice of Disciplinary Action forms, dated September 6, 2002, October 4, 2002, October 21, 2002, and December 24, 2002. The September 6, 2002 form indicates Velasquez was orally reprimanded for tardiness, negative attitude, late/incomplete work, and use of her work cellular phone to make personal calls. See . Notice of Disciplinary Action at 1 ( dated September 6, 2002). The October 4, 2002 notice states that she was orally reprimanded for her negative attitude. See Notice of Disciplinary Action at 1 (dated October 4, 2002).- The October 21, 2002 notice states: “REPRIMAND AND WARNING THAT ADDITIONAL INFRACTION WILL LEAD TO FURTHER DISCIPLINARY . ACTION WHICH MAY INCLUDE SUSPENSION OR DISCHARGE.” Notice of Disciplinary Action at 1 (dated October 21, 2002). This notice also states that the reason for the disciplinary action was a negative attitude. See id. On the bottom of the form, Sambrano wrote: “Negative attitude towards new Respiratory Therapist that was hired to help Corine with workload. I advised Corine that she would be fired if her attitude toward coworkers did not improve.” Id.; Velasquez Depo. at 212:13-18; id. at 215:21-24. Lastly, the Notice of Disciplinary Action dated December 24, 2002 states that Velasquez received an oral and written reprimand for unsatisfactory work performance and negative attitude. See Notice of Disciplinary Action at 1 (dated December 24, 2002). Velasquez concedes that she was “written up” by Sambrano for being “rude.” See Velasquez Depo. at 148:25 — 147:20; id. at 214:11-19. Velasquez denies being rude and contends that Sambrano never sought her side of the story. See id. at 149:16-23. Velasquez also alleges that Sambrano forced her to sign that reprimand. See id. at 152:14-25. Velasquez testified that she was never orally reprimanded, see id. at 2Í6:23 — 217:17, and that she never saw or received a copy of the reprimands attached to Frontier’s motion for summary judgment, see id. at 218:14 -221:22. Furthermore, Velasquez testified that she was “getting [her] work done to the best of [her] ability,” Id. at 340:21-22. According to the “Personnel Disciplinary Action” that Velasquez provided, the first disciplinary offense is usually an oral reprimand, which is written up on the disciplinary action form, but a copy of the form is not given to the employee. Personnel Disciplinary Action at 79. The second offense, however, “must be signed by the employee. A copy of this report is given to the employee for [her] records.” Id. Velasquez also provided a copy of a form entitled “Disciplinary Actions,” which states that “verbal warnings” are documented and, along with written warnings, are made part of the employee’s personnel file. Disciplinary Actions at V-19. This policy contains no requirement that the employee sign the reprimand forms — either written or verbal. On or about February 21, 2003, Velasquez filed a Charge of Discrimination against Frontier with the New Mexico Human Rights Division and the Equal Employment Opportunity Commission (“EEOC”) alleging discrimination on the basis of sex and national origin. See Charge of Discrimination at 1 (dated February 21, 2003). In the Charge, Velasquez states that she experienced “different treatment” because of her national origin, and that she was “subjected to sexual comments, jokes, and gestures by [Holt].” Id. Velasquez further states that “[a]ll [of] this lead up to my termination.” Id. Under the Statement of Discrimination, Velasquez stated: “I believe I have been discriminated against on the [b]asis of [her] National Origin (Hispanic) and Sex-Female (Sexual Harassment) in violation of Title VII of the Civil Rights Act of 1964, as amended.” Id. LAW GOVERNING MOTIONS FOR SUMMARY JUDGMENT Rule 56 of the Federal Rules of Civil Procedure allows a court to grant summary judgment if a party is entitled to judgment as a matter of law and there are no genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To avoid summary judgment, the non-moving party must contradict facts that the mov-ant specifically avers. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). The moving party bears the initial burden of establishing the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. 2548. The moving party can meet the burden by highlighting for the court an insufficiency of evidence as to an essential element of the nonmovant’s claim. See id. Once met, the burden shifts to the non-moving party to present specific, admissible facts from which a rational trier of fact could find for the nonmovant. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.1998)(citing Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548). The non-moving party may not rest on his pleadings, but must set forth specific facts. See Applied Genetics Int’l v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Under rule 56(e), only statements made with actual knowledge will support a motion for summary judgment; the court must disregard statements of mere belief. See Tavery v. United States, 32 F.3d 1423, 1426 n. 4 (10th Cir.1994). “A plaintiff cannot create a triable issue of fact by making an assertion without supporting facts.” Kelley v. Goodyear Tire & Rubber Co., 220 F.3d 1174, 1177 (10th Cir.2000). For the purposes of summary judgment, the court assumes the evidence of the non-moving party to be true, resolves all doubts against the moving party, construes all evidence in the light most favorable to the non-moving party, and draws all reasonable inferences in the non-moving party’s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If “the evidence, interpreted favorably to the plaintiff, could persuade a reasonable jury that the employer had discriminated against the plaintiff!,]” the court should deny summary judgment. MacDonald v. E. Wyo. Mental Health Cir., 941 F.2d 1115, 1121 (10th Cir.1991)(quoting Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1570 (7th Cir.1989)). The court should, however, grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c). A factual dispute is “material” only if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505. A “genuine” factual dispute requires the non-moving party to show more than a mere “scintilla of evidence” to overcome a motion for summary judgment. Id. at 252, 106 S.Ct. 2505. The court may grant summary judgment if the non-moving party’s evidence is merely colorable or is not significantly probative. See id. at 250-51, 106 S.Ct. 2505. “In a response to a motion for summary judgment, a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.” Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). Essentially, the inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 251-52, 106 S.Ct. 2505. LAW ON HOSTILE WORK ENVIRONMENT AND SEXUAL HARASSMENT Title VII prohibits an employer from discriminating against an employee with respect to “compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex.” 42 U.S.C. § 2000e-2(a)(l). To establish a hostile work environment claim, “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.” Davis v. U.S. Postal Serv., 142 F.3d 1334, 1341 (10th Cir.1998)(internal quotations omitted). See Stahl v. Sun Microsystems, Inc., 19 F.3d 533, 537-38 (10th Cir.1994)(“[H]ostile work environment harassment arises when sexual conduct ‘has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working, environment.’ ”)(quoting Hicks v. Gates Rubber Co., 833 F.2d 1406, 1413 (10th Cir.1987))(alteration in the original). “A discriminatory and abusive environment must affect the employee’s work environment so substantially as to make it intolerable for her to continue .... ” Creamer v. Laidlaw Transit, Inc., 86 F.3d 167, 170 (10th Cir.1996)(holding that a work environment did not contain “pervasive” harassment when the plaintiff made general allegations of frequent “sexual slurs” and the only specific incident to which the plaintiff cited involved a coworker grabbing the plaintiff). “The mere utterance of a statement which ‘engenders offensive feelings in an employee would not affect the conditions of employment to [a] sufficiently significant degree to violate Title YII.’ ” Gross v. Burggraf Const. Co., 53 F.3d 1531, 1537 (10th Cir.1995)(quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)(alteration in the original)(internal quotation marks omitted)). The plaintiff must demonstrate that the work environment was objectively and subjectively offensive, but need “not demonstrate psychological harm, nor is she required to show that her work suffered as a result of the harassment.” Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257, 1261 (10th Cir.1998)(citing Davis v. U.S. Postal Serv., 142 F.3d at 1341). Relevant considerations to determine if an environment is sufficiently objectively hostile include, in addition to looking at all the circumstances: “[T]he 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.” Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993))(internal quotations omitted). The harassment “must be sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment.” Meritor Savings Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)(quotation omitted)(alteration in the original). The Tenth Circuit has noted, however, “that the severity and pervasiveness evaluation is particularly unsuited for summary judgment because it is quintessentially a question of fact.” O'Shea v. Yellow Tech. Services, Inc., 185 F.3d 1093, 1098 (10th Cir.1999)(quotation omitted). When determining if incidents are sufficiently pervasive while courts have tended to count events over time to determine pervasiveness, the word ‘pervasive’ is not a counting measure. The trier of fact utilizes a broader contextual analysis. It begins with.the number, sequence, and timing of the conduct. The factfinder then looks at the nuances of an environment that is imposed by each instance of discriminatory behavior. Smith v. Northwest Fin. Acceptance, Inc., 129 F.3d 1408, 1415 (10th Cir.1997). The Tenth Circuit recently reaffirmed its holding that, in addition to demonstrating severe or pervasive harassing conduct, the plaintiff must also show that such conduct was because of her gender: But severity and pervasiveness are not enough. The “plaintiff must produce evidence that she was the object of harassment because of her gender.” Penry [v. Fed. Home Loan Bank of Topeka ], 155 F.3d at 1261 (emphasis added). Title VII is not a code of workplace conduct, nor was it “designed to bring about a magical transformation in the social mores of American workers,” Gross [v. Burggraf Constr. Co.], 53 F.3d at 1538. Title VII targets discrimination. Thus, a hostile environment claim requires a showing not only of severe and pervasive harassment, but of severe and pervasive harassment based on gender. Chavez v. New Mexico, 397 F.3d at 833 (10th Cir.2005). “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.” Stahl v. Sun Microsystems, Inc., 19 F.3d 533, 538 (10th Cir.1994). The Supreme Court for the United States, in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) — in holding that same-sex sexual harassment is actionable under Title VII — explained that “workplace harassment, even harassment between men and women, is [not] automatically discrimination because of sex merely because the words used have sexual content or connotations. ‘The critical issue ... is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’ ” Id. at 80, 118 S.Ct. 998 (quoting Harris v. Forklift Sys., Inc., 510 U.S. at 25, 114 S.Ct. 367). In Chavez v. New Mexico, the Tenth Circuit explained the appropriate analysis in situations in which a plaintiff alleges both gender-based and gender-neutral conduct: This case is difficult because, although the harassment at issue was undoubtedly severe and pervasive, only some of it was gender-based. The question then becomes whether Plaintiffs can use a substantial amount of arguably gender-neutral harassment to bolster a smaller amount of gender-based conduct on summary judgment. Our precedents say that they can: “Facially neutral abusive conduct can support a finding of gender animus sufficient to sustain a hostile work environment claim when that conduct is viewed in the context of other, overtly gender-discriminatory conduct.” O’Shea [v. Yellow Tech. Services, Inc.], 185 F.3d at 1097. This is because what is important in a hostile environment claim is the environment, and gender-neutral harassment makes up an important part of the relevant work environment. Conduct that appears gender-neutral in isolation may in fact be gender-based, but may appear so only when viewed in the context of other gender-based behavior. Penry [v. Fed. Home Loan Bank of Topeka ], 155 F.3d at 1262. Thus, when a plaintiff introduces evidence of both gender-based and gender-neutral harassment, and when a jury, viewing the evidence in context, “reasonably could view all of the allegedly harassing conduct ... as the product of sex and gender hostility,” then “it is for the fact finder to decide whether such an inference should be drawn.” O’Shea [v. Yellow Tech. Servs., Inc.], 185 F.3d at 1102, 1097 (emphasis omitted). Chavez v. New Mexico, 397 F.3d 826, 833. In O’Shea v. Yellow Technology Services, Inc., the Tenth Circuit reversed the district court’s holding granting summary judgment on plaintiffs sexual harassment claims. See O’Shea v. Yellow Tech. Services, Inc., 185 F.3d at 1102. The plaintiff in O’Shea v. Yellow Technology Services, Inc. worked as program specialist and, after several years of work and being in good standing, she joined the “team” UNIX operating system programmer. Id. at 1098. The team leader, Vicky Lynn Logan, provided positive feedback on the plaintiffs work and social skills. See id. Approximately a month the plaintiff after joined, however, a male coworker, Jones, joined the team as well, and the “[pjlaintiff and Mr. Jones began to experience conflicts in their working relationship shortly [thereafter].” Id. The plaintiff “allege[d] that numerous instances of harassing conduct by Mr. Jones created a hostile work environment which prevented her from working effectively with others of the team.” Id. Such instances included: Plaintiff alleges that she overheard Mr. Jones making fun of his wife and making other derogatory comments about women such as that women talk too much and are less intelligent than men. Plaintiff also alleges that Mr. Jones told others she was incompetent and unable to do her job, that she was overemotional and hysterical, and that women in general were incompetent, stupid, and scatterbrained. Plaintiff further claimed that, on one occasion, she heard Mr. Jones tell some coworkers about a dream he had in which he was watching a woman jumping naked on a trampoline. Mr. Jones described to his co-workei-s how the woman’s breasts looked. On another occasion, Mr. Jones allegedly said, “Playboy is superior to a wife because at least with Playboy you get variety.” Plaintiff also alleges that she and Mr. Searle both overheard another coworker, who was doing an impression of Mr. Jones, state, “I just don’t get it. I treat women like crap and they just keep coming back for more.” Finally, Plaintiff alleges that Mr. Jones repeatedly told his coworkers that Plaintiff was going to file a sexual harassment lawsuit against him, which, according to Plaintiff, caused her coworkers to cut off contact with her and treat her poorly. Finally, in addition to Mr. Jones’ conduct, Plaintiff testified during her deposition that Dan West and Ed Haffner, two other members of the UNIX team, “made derogatory comments about women jokingly all the time.” Id. at 1098-99 (citations omitted). The district court held that “a jury could find that a co-worker’s derogatory comments about women and his statements to other coworkers that Plaintiff was planning to file a sexual harassment suit against him were based on [the pjlaintiffs gender or sexual animus.” Id. at 1096 (quotation omitted). The district court, however, granted summary judgment against the plaintiff, holding that the incidents were not severe or pervasive enough to constitute sexual harassment. See id. The Tenth Circuit agreed with the district court that “Mr. Jones’ derogatory comments about women and his statements to coworkers and others that Plaintiff was going to file a sexual harassment suit against him were based on gender or sexual animus.” Id. at 1099. The Tenth Circuit, however, also held that the district could should have considered statements “overtly sexual [in] nature” — referring to the Playboy comment and the trampoline dream — although not directed at the plaintiff. Id. The Tenth Circuit then addressed the “social context” in which the statements occurred and concluded that “the obviously sex-and gender-related conduct engaged in by Mr. Jones, Mr. West, and Mr. Haffner created or contributed to a work environment that was charged with gender bias and sexual animus.” Id. Next, the Tenth Circuit addressed the plaintiffs allegation “that the general work atmosphere was hostile towards women and that Mr. Jones’ conduct caused other employees to ostracize her and otherwise impede her efforts to perform her work.” In support of this allegation, the plaintiff alleged numerous incidents, including that (i) male programmers would never invite her out to lunch; (ii) male programmers would stop discussing a technical subject when she approached; (iii) some male coworkers became less communicative or totally ignored her; (iv) her male supervisor told her that he was not considering hiring a female programmer because “she would [not] fit into the corporate culture”; and (v) she was not given a password which was required for her to perform her job. Id. at 1099-1100 (alteration in the original). When the plaintiff complained about these difficulties, “nearly all of these complaints were met with indifference, if not resistance.” Id. at 1100. Furthermore, when Jones announced that the plaintiff was planning on filing a sexual harassment suit, two team members ceased virtually all contact with the plaintiff. See id. When efforts at a meeting were made to halt this behavior, “the team members generally because uncooperative with her, which affected her work and personal life.” Id. The plaintiff also offered evidence that, when discussing these problems with a male supervisor, he, in a raised voice, accused her of “being uncooperative and uncommunicative,” and that in a later meeting, he exclaimed that she was the problem. Id. at 1100-01. After considering this evidence, the Tenth Circuit held: [T]he record fairly supports the inference that Mr. Jones’ numerous derogatory comments about women and his statements that Plaintiff was going to file a sexual harassment complaint against him, along with Mr. West’s and Mr. Haffner’s derogatory comments about women, caused or contributed to a hostile work environment which was based on Plaintiffs gender or sexual animus. More specifically, it is reasonable to infer that this conduct caused other employees who worked with Plaintiff to ignore her, withhold information and passwords from her, refuse to discuss technical matters with her, and generally become uncooperative with her. In particular, a jury could find that the following events would not have occurred but for Plaintiffs gender: Mr. Jones’ alleged failure to communicate adequately with Plaintiff regarding work matters and his statements to coworkers and others that Plaintiff was incompetent; Plaintiffs claims that her male coworkers rarely or never invited her to lunch and that they ignored her or stopped discussing technical matters when she approached; her allegation that her coworkers and supervisors refused to give her the password she needed to do her work; her allegations that Mr. Keller and Mr. Corwin yelled at her in a demeaning and unprofessional manner on several occasions; and Mr. Cor-win’s alleged statement telling Plaintiff to take a vacation and get a tan. Additionally, while they present closer questions, a jury might reasonably infer that gender or sexual animus was the source of Defendant’s decision to send Mr. Jones rather than Plaintiff to a programming class and of Mr. Keller’s statement that Defendant would not hire a specific female candidate because she would not fit into the corporate culture. Moreover, many of Plaintiffs factual allegations are corroborated by the deposition and written declaration of Ms. Logan. At the very least, the non-sexually explicit or non-gender motivated conduct which occurred after Mr. Jones began working on the UNIX team is relevant to the evaluation of Plaintiffs hostile work environment claim. See Penry [v. Fed. Home Loan Bank of Topeka ], 155 F.3d at 1263 (“Even where the motive behind the alleged conduct was not the plaintiffs gender, the court may still consider that conduct relevant, when evaluating whether ambiguous conduct was in fact, gender-motivated or whether gender-motivated conduct was so severe and pervasive as to create Title VII liability.”). We therefore conclude that Plaintiff has presented genuine issues of fact as to whether “she was the object of harassment because of her gender.” Penny [v. Fed. Home Loan Bank of Topeka ], 155 F.3d at 1261. [T]he obviously sex and gender-motivated conduct — including Mr. Jones’ comparison of his wife to a Playboy magazine, his description of his dream, his remarks that Plaintiff was going to file a sexual harassment, suit against him, and Mr. Jones’ and others’ derogatory comments about women — so poisoned the entire body of conduct toward Plaintiff that a jury reasonably could view all of the allegedly harassing conduct occurring after Mr. Jones began working for Defendant as the product of sex and gender hostility. That is particularly so when the conduct is viewed against the evidence that until the onset of the sex and ' gender harassment Plaintiff was viewed as a good employee who got along well with others. While there is some evidence to the contrary, including some pre-Jones harassment, the district court may not resolve disputed questions of fact at the summary judgment stage; these questions are for the jury to resolve. See Concrete Works of Colo., Inc. v. City and County of Denver, 36 F.3d 1513, 1518 (10th Cir.1994); Frohmader v. Wayne, 958 F.2d 1024, 1028 (10th Cir.1992). Plaintiff has also established genuine issues of material fact regarding the severity and pervasiveness of the conduct. Viewed in a light most favorable to Plaintiff, the .record shows that once Mr. Jones started working on the UNIX team the allegedly harassing conduct began to permeate Plaintiffs work environment. Throughout the remaining five months of Plaintiffs employment, Mr. Jones continued his demeaning conduct unabated. He allegedly made frequent derogatory comments about women, he told people that Plaintiff was incompetent, he refused to cooperate and share work information with Plaintiff, and he made at least two overtly sexual comments so that Plaintiff could hear them. Further, Mr. Jones allegedly repeatedly told his coworkers that Plaintiff was going to file a sexual harassment complaint against him. Based on this evidence, we think that a jury reasonably could conclude that, as a result of Mr. Jones’ and others’ conduct, Plaintiff was subjected to an environment “permeated with ‘discriminatory intimidation, ridicule, and insult.’ ” Davis[v. U.S. Postal Serv.], 142 F.3d at 1341 (citation omitted). We therefore hold that Plaintiff established genuine issues of material fact regarding whether the alleged conduct was “ ‘sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.’ ” Id. (citation omitted). O’Shea v. Yellow Tech. Services, Inc., 185 F.3d at 1101-02. In Penry v. Federal Home Loan Bank of Topeka, two female employees, Gillum and Penry, alleged that a male coworker with supervisory authority, Waggoner, created a hostile work environment with “a variety of inappropriate comments and behavior” over a three-year period. These incidents included: Gillum asserts that several times when she and Waggoner traveled together for FHLB business, he intentionally gave hotel clerks the impression that he and Gillum were to share a room, leaving it to Gillum to correct the situation. While Penry was on business travel with Wag-goner in March 1990, he asked her if women have wet dreams. While Wag-goner and Gillum were on a business trip together in April 1990, Waggoner took Gillum to dine at Hooters, a restaurant whose marketing theme is based on its well-endowed female waiting staff. Gillum was unaware of this feature of the restaurant until after they arrived. Later, Penry and Gillum learned from another woman in their department that Waggoner had also chosen that restaurant while on business travel with her. On another trip, Waggoner insisted that Gillum work in his hotel room despite her protests and request to work in her own room. During a business trip in October of 1990, Waggoner told Penry that her bra strap was showing but then said, according to Penry, that he kind of liked it that way. In March of 1991, Gillum overheard Waggoner make a double enten-dre to another male employee that one of the female assistants “allowed him to get in her drawers anytime.” In November 1992, Waggoner asked Penry what she was wearing under her dress and laughed when she said she did not appreciate the comment. On separate occasions in 1990 and 1991, Waggoner pointed out to each of the plaintiffs that the roof of a particular mall was shaped like a woman’s breasts. Penry alleges that in the fall of 1992, Waggoner began following her constantly when she got up to go to the breakroom or the bathroom. Gillum alleges that between spring of 1991 and spring 1992, Waggoner would often (at least twice a week) stand and stare at her while she was working. In December 1992, Waggoner called one of the other female review assistants over to where he and Penry and Gillum were gathered by demanding, “bring your buns over here.” Gillum alleges that on one day in 1993, Waggoner leaned against her and repeatedly tried to look down her blouse. Waggoner repeatedly referred to the collateral assistants as “gals” rather than by name when introducing them to employees at other banks on travel, despite their requests that he stop doing so. Both plaintiffs allege that Waggoner needlessly touched them on many occasions throughout the years they worked with him. Each complains that he would often sneak up from behind and grab her shoulders while loudly saying her name to startle her. Id. at 1260-61. The district court concluded the following gender-based incidents occurred with Gillum: one gender-based comments (the drawers comment) and four incidents of unwanted physical touching and other periodic touching. See id. at 1261. The district concluded that Wag-goner subjected Penry to four gender-based comments (the drawers comment, the bra strap comment, asking if women have wet dreams, asking what the employee was wearing under her dress), and no sexually offensive touching. See id. at 1261-62. The Tenth Circuit affirmed the district court decision to grant summary judgment in favor of the employer, although it disagreed with the district court’s analysis. See id. at 1260, 1262. The Tenth Circuit explained that this Circuit’s “precedents ... eschew ... a mechanical approach to analyzing hostile environment claims.” Id. at 1262. The Tenth Circuit emphasized the importance of “examining] the totality of the circumstances, including the context in which the alleged incidents occurred.” Id. (quotation omitted). In addition, the Tenth Circuit directed lower courts to consider incidents with “gender-related implications,” even if “the motive behind the alleged conduct was not the plaintiffs gender, ... when evaluating whether' ambiguous conduct was in fact gender-motivated or whether gender-motivated conduct was so severe or pervasive as to create Title VII liability.” Id. at 1263. The Tenth Circuit concluded that the district court should have considered the comment about the mall looking like a woman’s breast and Waggoner taking women to dine Hooters during business trips. Even taking into account these additional gender-based incidents, the Tenth Circuit was unable to conclude that a rational jury could find that plaintiffs’ workplace was permeated with discriminatory intimidation. We have no doubt that the plaintiffs worked in an unpleasant environment. Nevertheless, the gender-based incidents were too few and far between to be considered ‘sufficiently severe or pervasive to alter the conditions of the victims’ employment and create an abusive working environment.’ The gender-based incidents were spread out over a period of more than three years and are insufficient to establish a dis-criminatorily hostile .environment. Id. at 1263 (quoting Ray v. Tandem Computers, Inc., 63 F.3d 429, 434 (5th Cir.1995)). The Tenth Circuit also noted that the majority of conduct “seems motivated by poor taste and a lack of professionalism rather than by the plaintiffs’ gender. What made the plaintiffs’ environment hostile, if anything, was not the gender-based incidents but instead the gender-neutral antics perpetrated by Waggoner ....” Id. Because the plaintiffs did not show that the hostile environment was created because of their gender, the Tenth Circuit affirmed summary judgment. See id. LAW ON DISCRIMINATION 1. McDonnell Douglas Analysis. The plaintiff bears the burden of proving discrimination. She may do so by direct evidence, or by indirect proof under the analytical framework that the Supreme Court set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See id. at 802-04, 93 S.Ct. 1817; Morgan v. Hilti Inc., 108 F.3d 1319, 1323 (10th Cir.1997). Where the plaintiff is proceeding under McDonnell Douglas Corp. v. Green, the plaintiff must first set forth a prima facie case of discrimination. See Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); English v. Colo. Dep’t of Corr., 248 F.3d 1002, 1008 (10th Cir.2001)(“[A] plaintiff relying on McDonnell Douglas bears an initial burden of establishing a prima facie case intended to eliminate the most common nondiscriminatory reasons that might account for the adverse employment action”). If the plaintiff establishes a prima facie case, the burden shifts to the defendant to come forward with a legitimate nondiscriminatory reason for its employment-related decision. See McDonnell Douglas Corp. v. Green, 411 U.S. at 802, 93 S.Ct. 1817. Upon the employer’s articulation of legitimate, nondiscriminatory reasons, the presumption of discrimination established by the prima facie case “simply drops out of the picture.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). To withstand summary judgment, a plaintiff must “present[] evidence that the defendant’s proffered reason for the employment decision was pretextual-i.e. unworthy of belief.” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir.2000)(quotation omitted). “Pretext can be shown by ‘such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.’ ” Morgan v. Hilti, Inc., 108 F.3d at 1323 (quoting Olson v. Gen. Elec. Astrospace, 101 F.3d 947, 951-52 (3d Cir.1996)). “To avoid summary judgment, a party must produce specific facts showing that there remains a genuine issue for trial and evidence significantly probative as to any [material] fact claimed to be disputed. Thus, plaintiffs’ mere conjecture that their employer’s explanation is a pretext for intentional discrimination is an insufficient basis for denial of summary judgment.” Branson v. Price River Coal Co., 853 F.2d 768, 771-72 (10th Cir.1988)(internal citations and quotations omitted)(alteration in the original). 2. Disparate Treatment. “A claim of disparate treatment encompasses a situation where the employer simply treats some people less favorably than others because of their race, color, religion or national origin. To establish a prima facie case of ... discrimination ... [the plaintiff] must demonstrate (l)[s]he is a member of a protected class, (2)[s]he suffered an adverse employment action, and (3) similarly situated employees were treated differently.” Mitchell v. City and County of Denver, 112 Fed.Appx. 662, 670 (10th Cir.2004)(unpublished decision)(internal quotation and citation omitted)(citing Trujillo v. Univ. of Colo. Health Sciences Ctr., 157 F.3d 1211, 1215 (10th Cir.1998)). “[A] prima facie case of sex-based pay discrimination [is established] by showing that she occupies a job similar to that of higher paid males. The burden is on the plaintiff to show she is similarly situated to the employee with whom she is comparing herself.” Block v. Kwal-Howells, Inc., 92 Fed.Appx. 657, 660 (10th Cir.2004)(unpublished decision)(internal quotation and citation omitted). 3. Unlawful Discharge. To establish a prima facie case of discriminatory discharge, the plaintiff must show that: “(1) [s]he belongs to a protected class; (2)[s]he was qualified for the job; (3) despite [her] qualifications, [s]he was discharged; and (4) the job was not eliminated after [her] discharge.” Kendrick v. Penske Transp. Services, Inc., 220 F.3d at 1229 (citing Perry v. Woodward, 199 F.3d 1126, 1138 (10th Cir.1999)). Although the plaintiff need not establish that, as part of a discriminatory discharge prima facie case, “the defendant hired someone outside of the protected class,” Kendrick v. Penske Transp. Services, Inc., 220 F.3d at 1226, “a plaintiff may ... show pretext on a theory of disparate treatment by providing evidence that [s]he was treated differently from other similarly-situated, nonprotected employees who violated work rules of comparable seriousness. An employee is similarly situated to the plaintiff if the employee deals with the same supervisor and is subject to the same standards governing performance evaluation and discipline.” Id. at 1232 (internal quotation and citation omitted). The Tenth Circuit further explained: Not every difference in treatment, of course, will establish a discriminatory intent. Title VII does not make unexplained differences in treatment per se illegal nor does it make inconsistent or irrational employment practices illegal. It prohibits only intentional discrimination based upon an employee’s protected class characteristics. Human relationships are inherently complex. Large employers must deal with a multitude of employment decisions, involving different employees, different supervisors, different time periods, and an incredible array of facts that will inevitably differ even among seemingly similar situations.... What the law does require is that an employer not discriminate against an employee on the basis of the employee’s protected class characteristics. [EEOC v.] Flasher, 986 F.2d [1312,] 1319 [ (10th Cir.1992) ]. Differences in treatment that are trivial or accidental or explained by a nondiseriminatory motive will not sustain a claim of pretext. Kendrick v. Penske Transp. Services, Inc., 220 F.3d at 1232. ANALYSIS Velasquez has not offered evidence to create genuine issues of material fact that she was subject to a hostile work environment or that she was discriminated against on the basis of her gender or her race. Thus, the Court will grant Frontier summary judgment on all federal claims and will dismiss all state claims without prejudice. I. PLAINTIFF DOES NOT SHOW A GENUINE ISSUE OF MATERIAL FACT THAT SHE WAS SUBJECT TO SEXUAL HARASSMENT. Velasquez has not established that a genuine issue of material fact exists whether Frontier’s employees and supervisors sexually harassed her by subjecting her to a hostile work environment. Velasquez has not offered sufficient evidence establishing a genuine issue of material fact the alleged conduct was the “product of sex and gender hostility.” Even assuming, however, that the alleged conduct established a genuine issue of material fact that it was the “product of sex and gender hostility,” Frontier is nevertheless entitled to summary judgment because there is no genuine issue of material fact that the alleged conduct was severe or pervasive. Accordingly, the Court will grant Frontier summary judgment on Count I of Velasquez’ Complaint. A. FRONTIER IS ENTITLED TO SUMMARY JUDGMENT BECAUSE VELASQUEZ HAS NOT OFFERED EVIDENCE TO CREATE A GENUINE ISSUE OF MATERIAL FACT THAT SUCH CONDUCT OCCURRED BECAUSE OF HER GENDER. The Court must first establish whether there is a genuine issue of material fact that the various alleged incidents “were based on gender or sexual animus.” At the summary judgment stage in other contexts, the plaintiff need not show discriminatory intent. In O’Shea v. Yellow Technology Services, Inc. and other cases, however, the Tenth Circuit indicates that to survive summary judgment on a sexual harassment, the plaintiff must show the incidents occurred because she is a woman. Before embarking on the analysis of the facts at issue in this case, the Court notes that the facts at issue in Chavez presented a much clearer determination whether particular incidents were gender-based. The incidents at issue were either conceded to be gender-based, see Chavez v. New Mexico, 397 F.3d 826, 833, or involved blatantly sexual conduct, such as a male coworker sitting in a “intimidating, forcefully seductive manner,” purposefully rubbing his body against one of the female plaintiffs, calling one of the women a “fucking bitch,” looking at the a female plaintiff in a “lewd and lascivious manner,” and massaging his genitals, id. The facts in this case do not present the same overtly sexually charged incidents. Moreover, even though the facts in this case are more similar to the facts of O’Shea v. Yellow Technology Services, Inc. in that neither case involves sexual propositions or unwanted sexually offensive touching, the facts of this case are distinguishable based on the context in which the alleged incidents occurred, as well as the sufficiency of the record which Velasquez provides. The Court, therefore, in establishing whether the plaintiff has offered sufficient evidence to establish that the alleged incidents constitute harassment because of her gender, finds it instructive to compare the facts of this case to those of O’Shea v. Yellow Technology Services, Inc. The environment described in O’Shea v. Yellow Technology Services, Inc. paints a picture of a successful employee who, until placed on a team with a male coworker, excelled at her job. The record reveals a progression from a work environment which, although not void of any incidents, became intolerable based on the comments and actions of a few male coworkers. The facts in O’Shea v. Yellow Technology Services, Inc. also suggested that many of the neutral incidents occurred because of the plaintiffs gender. When the Tenth Circuit concluded that the plaintiff in O’Shea v. Yellow Technology Services, Inc. raised a genuine issue of material fact that the harassing conduct occurred because of her gender, they examined a multitude of facts. First, the Tenth Circuit addressed the male coworkers’ “numerous derogatory comments about women and [Jones’s] statements that Plaintiff was going to file a sexual harassment complaint against him,” as well as other male coworkers derogatory comments, as “obviously sex and gender-motivated.” Such comments included the Playboy comment about a wife and describing a dream about a naked woman. In contrast, in this case, Velasquez has offered no specific evidence of any male coworker referring to women in a derogatory manner or telling any joke that degraded women. To the contrary, the only specific joke that Velasquez offered in support of her allegation that Holt constantly made sexual jokes is that of a man placing a potato in his swimsuit. Because the joke, however, referred to male genitalia and involved Holt making gestures near his genitalia, the Court will assume that such a joke was gender-based. The only other specific evidence of Holt’s alleged harassing conduct was his comment when Velasquez’ husband sent her flowers, stating “You must be doing something right for your husband to be sending you roses.” Again, the Court will assume that such a comment is gender-based. Although Velasquez makes sweeping allegations that Holt was constantly telling sexual jokes and making sexual innuendos, Velasquez provides no other specific evidence of such incidents. Without particular incidents or facts, the Court cannot determine whether such alleged incidents contributed to an atmosphere replete with sexual animus. Same-sex harassment, however, is also actionable under Title VII. Accordingly, the Court will also consider the incidents involving Velasquez’ female coworkers and supervisor. The Court will assume that Wilkes’ and Zamora’s comments to Velasquez when she would meet Tony were based on her gender, in part because Velasquez testified that she was the only one subjected to such comments, which presumably included other male coworkers. Another incident which could be considered gender-based is Zamora showing Velasquez the photograph of the exaggerated penis. Finally, Wilkes’ comment to Tony about the roses is gender-based. Finally, Velasquez testified that Sambrano referred to Wilkes and Zamora as “bitches.” Id. The Court will also consider two incidents which, although not necessarily motivated by Velasquez’ gender, nevertheless contained gender implications. See O’Shea v. Yellow Tech. Services, Inc., 185 F.3d at 1099; Penny v. Fed. Home Loan Bank of Topeka, 155 F.3d at 1263. These incidents are Sambrano’s statement to Velasquez that she likes to walk around the house naked and wears a G-String, and Dr. Sei-del’s telephone call to the office requeste