Tammy S. Scusa v. Nestle U.S.A. Co. ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-2866
___________
Tammy S. Scusa, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Nestle U.S.A. Company, Inc., * District of Nebraska
doing business as Friskies Petcare *
Co., Inc., *
*
Appellee. *
___________
Submitted: January 20, 1999
Filed: June 23, 1999
___________
Before McMILLIAN, BEAM and LOKEN, Circuit Judges.
___________
McMILLIAN, Circuit Judge.
Tammy S. Scusa appeals from a final order entered in the United States District
Court1 for the District of Nebraska granting summary judgment in favor of appellee,
Nestle U.S.A. Co., d/b/a Friskies Petcare Co. (Friskies or the company), and dismissing
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
her claims for sexual harassment and retaliation allegedly committed by her non-
supervisory co-workers in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq. Scusa v. Nestle U.S.A. Co., No. 4:97CV3134
(D. Neb. July 7, 1998) (memorandum and order).
For reversal, appellant argues that the district court erred in granting summary
judgment in favor of her employer because there were disputed issues of material fact
for a jury to consider on (1) whether she was sexually harassed and (2) whether she
was retaliated against for engaging in protected activity. For the reasons discussed
below, we affirm the judgment of the district court.
The district court has subject matter jurisdiction over this case pursuant to 28
U.S.C. § 1343. This court has jurisdiction over this appeal under 28 U.S.C. § 1291.
The district court's judgment was entered on July 7, 1998, and the notice of appeal was
timely filed on July 10, 1998. Fed. R. App. P. 4(a).
I. Background
We need not state the facts extensively and, indeed, have little to add to the
excellent memorandum opinion of the district court. Appellant has been employed at
the Friskies pet food manufacturing plant in Crete, Nebraska, since 1990. At the time
of the various incidents at issue, she was a sanitation/pallet washer in the meat
preparation department, and, subsequently, at her request she was transferred to the
packaging department in September 1996. In the spring of 1996, after a co-worker,
Kathy Ramer, had complained about sexual harassment, appellant believed that other
employees thought that she was the one who had made the complaint. In July 1996,
appellant did file a sexual harassment charge with the state equal opportunity
commission. She asserted from that point she was ostracized and isolated by other
employees and first-line supervisors. She complained to the human resource manager,
Jonathan "Josh" Sprowl, that a co-worker named Larry King had patted her on the
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bottom, had blown her kisses and had made sexual comments to her. She also
complained that a co-worker and fill-in lead person, Trent Smejdir, had teased her,
picked on her, thumped her on the head, and made fun of the way she dressed and ate.
Appellant also complained that on July 3, 1996, co-worker Lonnie Schoenfeld
approached her, called her names and yelled at her "You need to get your f------ story
straight; I didn't know anything about the f------ minerals. You girls need to leave me
the hell alone." Appellant also reported that Schoenfeld made threatening gestures
toward her, shaking his fist and cussing at her. Apparently these comments were made
during a meeting discussing the sexual harassment complaints and the company sexual
harassment policy. According to appellant, there was yelling and crying at the
meeting. Plant Manager Bruce Henning slammed his fist on the table out of frustration.
Schoenfeld made his "you f------- girls better get your stories straight" comments. In
his deposition Schoenfeld testified that he was frustrated by the sexual harassment
complaints and the attempts by the company to improve "communication" between the
sexes.
Appellant alleged that, after she filed a sexual harassment charge with the state
equal opportunity commission, she was subjected to retaliation and continued
harassment, for example, some of her co-workers and immediate supervisors stopped
talking to her and treated her rudely, followed her around, glared at her, and slammed
doors in her face; someone also "keyed" (scratched the finish with a sharp object such
as a car key) her car on the plant parking lot. In particular, appellant asserted that co-
worker Betty Schoenfeld, Lonnie Schoenfeld's wife, followed her into a bathroom and
slammed a door in her face, which upset and frightened her.
Appellant alleged that, because these actions occurred frequently over a long
period of time, they created a hostile work environment. She also kept a journal in
which she documented these actions at work, for example, recording hostile actions on
25 days between late August and late October 1996. Appellant alleged that
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management was aware of the actions taken against her and did nothing. For example,
she alleged that Lonnie Schoenfeld was never disciplined. Apparently her complaints
were given only "verbal discussions."
Additionally, she asserted that much of the conduct was that of immediate
supervisors, such as Smejdir and Mike Blacketer. She alleged that these individuals
were "lead persons" or first-line supervisors, that is, employees who may not have had
supervisory titles but who had supervisory authority on the plant floor.
Finally, she asserted that the sexual harassment and retaliation forced her to
request a transfer to another job outside of her department. She also believed that the
sexual harassment and retaliation altered her work environment and made it hostile,
threatening, stressful, and humiliating. Appellant in her complaint identified five sexual
harassment incidents involving Smejdir2 and four involving Schoenfeld3 and
2
Appellant identified five incidents involving Smejdir:
1. Smejdir teased her and thumped her head. [Appellant] alleges
that Smejdir would "tease [her] and thump [her] head." Appellant
testified that after she told Smejdir not to thump her head, he never did it
again. [Appellant] never complained to anyone in management about this
behavior.
2. Smejdir yelled at her for not relieving a co-worker. [Appellant]
testified that in May 1996, Smejdir yelled at her for not relieving a co-
worker. Following this incident, Smejdir was no longer permitted to use
[appellant] as a break person. According to [appellant], Friskies remedied
the situation to her satisfaction.
3. Smejdir told her no extra large t-shirts remained. In April or
May 1996, Smejdir was handing out free t-shirts when employees picked
up their paychecks. When [appellant] asked for an extra large t-shirt, [he]
told her there were none. After [appellant] complained to her supervisor,
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she received an extra large t-shirt.
4. Smejdir was "snotty and rude" when she refused to help. In
April or May 1996, Smejdir asked [appellant] to help him pick up meat
that had dropped on the floor. [She] told [him] that it was his job, not
hers, to pick up the meat. [Appellant] claims Smejdir got "snotty and
rude" with her when she refused to help. [She] testified in her deposition
that she did not think [he] did this because she was a woman. [Appellant]
admitted that she was "snotty and mean" to Smejdir in return.
5. Smejdir yelled because baskets were stacked wrong. In June
1996, Smejdir yelled at [appellant] because baskets were stacked on the
dock so as to block the control room windows. [Appellant] told him it
was not her responsibility, but she moved the baskets. [She] did not
believe that [he had] yelled at her because she was a woman. She does
not recall complaining to anyone in management about this incident.
Scusa v. Nestle U.S.A. Co., No. 4:97CV3134, slip op. at 3-4 (D. Neb. July 7, 1998)
(memorandum and order) (citations omitted).
3
Appellant identified four incidents involving Lonnie Schoenfeld:
1. Lonnie told her to use the wrong chemicals. In May 1996,
following Lonnie's instructions, [appellant] added the wrong chemical into
the product that was being made. A co-worker, Mike Blacketer, yelled
at her for this mistake. [Appellant] felt she was being unfairly blamed for
Lonnie's mistake. [She] reported this incident to management and was
informed that it would not go on her record. [Appellant] did not receive
a verbal or written reprimand and lost no pay as a result of the incident.
Moreover, following this incident, [appellant] was never placed back at
that position. [Bruce] Henning and Filipi later met with Blacketer and
decided to change the chemical labels to avoid future mix-ups. In
[appellant's] opinion, the problem was appropriately addressed.
[Appellant] admitted that the blame she received had nothing to do with
the fact that she was a woman.
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many incidents of retaliation by co-workers4 after she filed her sexual harassment
2. Lonnie used profanity and yelled at her. Lonnie confronted
[appellant] after she had laughed with another co-worker about a mistake
Lonnie had made Lonnie came running at her and stopped in front of her.
According to [appellant], Lonnie yelled, "You need to get your f------
story straight. I didn't know anything about the f------ minerals. You girls
need to leave me the hell alone." As he was walking away, Lonnie yelled,
"f------ b----," and [appellant] smiled at him as she walked away.
[Appellant] testified, that Lonnie used profanity with both male and
female employees and believes that he probably would have reacted the
same way had a male employee laughed at his mistake. After [appellant]
reported Lonnie's behavior to her supervisor, Filipi counseled Lonnie that
day and told him that such conduct would not be tolerated. Filipi reported
to [appellant] that day that he had verbally disciplined Lonnie for the
incident. After this reprimand, Lonnie never used profanity around her
again.
3. Lonnie shook his fist 30 feet away from her. On another
occasion, Lonnie was "cussing" as he walked down the stairs and swung
his fist out in front of him. [Appellant] testified that she was more than
30 feet away from Lonnie and that Lonnie may have been talking to
himself. There is no evidence that [appellant] ever told anyone in
management about this incident.
4. Lonnie said "Jesus Christ." On one occasion Lonnie walked out
of the break room and said "Jesus Christ" and walked away. [Appellant]
was the only person in the vicinity at the time. [She]testified it is possible
that Lonnie was talking to himself.
Id. at 5-6 (citations omitted).
4
Appellant alleged the following incidents of co-worker retaliation:
1. [Betty Schoenfeld] gave her "hateful, mean looks": [Appellant]
claims that after she filed her harassment charges, Betty Schoenfeld began
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to give her "hateful, mean looks." [She] reported Betty's conduct to
Sprowl. Sprowl advised Betty on at least four occasions to stop if she
was in fact giving [appellant] mean looks, although Sprowl could never
catch Betty in the act.
2. [Betty Schoenfeld] followed [appellant] into the bathroom:
Betty allegedly followed [her] into the bathroom and slammed the door
behind her. After [appellant] reported this incident to Sprowl, he
investigated, but as there were no witnesses, [he] could not take any
disciplinary action against Betty. [Appellant] understood that there was
nothing Sprowl could do without witnesses.
3. [Betty Schoenfeld]'s conversation with appellant's uncle:
During the summer of 1997, Betty allegedly asked [appellant's] uncle,
who also worked at the plant, to tell [appellant] to stop what she was
doing because she was causing heartache and problems.
4. Co-workers stopped talking to her: Several individuals
stopped talking with her following her reports of alleged harassment.
None of these individuals are supervisors. [Appellant] also claims that
some or all of these individuals also gave her "dirty looks" following her
reports of alleged sexual harassment.
5. [Sonya Gansemer] yelled at [her] for allegedly starting rumor:
Non-supervisory employee Sonya Gansemer allegedly retaliated by
yelling at [her] and telling her to keep her mouth shut when Gansemer
believed that [appellant] had started a rumor that King and Gansemer
were sleeping together.
6. [Larry King] told "dirty" joke that [appellant] did not hear:
On one occasion, Larry King was telling [Laurie Harris] a joke. [She] did
not actually hear the joke, but believed the joke must have been about her
because King and Harris looked at [her] and laughed. [She] reported to
management that King told a dirty joke, but she acknowledged in her
deposition that she had no evidence that King ever told a dirty joke.
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charge. After the alleged retaliation but before she filed a retaliation charge, she was
moved to another position in the packaging department. In September 1996 appellant
filed a retaliation charge. In November 1996 appellant received a position in the
internal labor pool. Sprowl approved both transfers and appellant acknowledged that
her supervisors have been "very supportive."
Appellant filed this case against Friskies in federal district court in April 1997,
alleging claims of sexual harassment and retaliation. The district court granted
summary judgment in favor of the company. The district court first found that there
were no material facts in dispute. See slip op. at 10. The district court found that
appellant failed to establish a sexual harassment claim because she failed to show that
she found her co-workers’ conduct unwelcome and offensive, see id. at 11-12 (finding
appellant used offensive language, teased co-workers and made sexual and off-color
comments, which undermined her claim that she found similar conduct by co-workers
unwelcome and offensive); she failed to show that harassment was based on sex, see
id. at 12-13 (finding appellant failed to show that women in general, and herself in
particular, suffered disadvantageous terms or conditions of employment to which men
were not exposed; evidence that co-workers were either rude to both women and men
or incidents were not based upon her sex); and, finally, she failed to show that the her
7. [Laurie Harris] did not move aside: On one occasion, Harris
refused to move aside so [she] could exit a conference room. When
[appellant] said, "excuse me please," Harris allegedly gave her an angry
look. [Appellant] never complained to any supervisor about Harris's
conduct.
8. Car "keyed." [Appellant] claims that her car was "keyed."
[She] testified that no one saw who had damaged her car, and therefore,
there was nothing Friskies could do to remedy the situation.
Id. at 6-8 (citations omitted).
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co-workers’ conduct was so severe or pervasive as to alter the conditions of appellant’s
employment and create an abusive working environment. See id. at 13-15 (finding
appellant did not perceive work environment as hostile or abusive subjectively, noting
appellant participated in some of the comments which she claimed was offensive and
reported only 4 of 9 incidents, each of which was remedied to her satisfaction, or
objectively, noting appellant cited isolated incidents of bad language and rude behavior,
to which appellant either responded in kind or reported and which the company
remedied to her satisfaction).
The district court also found that appellant failed to establish a claim of
co-worker retaliation. First, the district court noted that appellant alleged that her
co-workers had retaliated against her. See id. at 16 n.2 (noting that appellant did not
claim any retaliatory conduct by supervisors, thus implicitly finding that the individuals
she characterized as lead persons or first-line supervisors were co-workers, not
supervisory employees). The district court then found that appellant failed to show
either any adverse employment action or any causal connection between her filing
sexual harassment charges and adverse employment action. See id. at 16 (noting
appellant testified that she had not suffered any adverse job action and that her
supervisors had been supportive and responsive to her complaints). This appeal
followed.
II. Summary Judgment
We review a grant of summary judgment de novo. See Smith v. St. Louis
University, 109 F.3d 1261, 1264 (8th Cir. 1997). Summary judgment is appropriate if
the movant has shown that there is no genuine issue of material fact and that the movant
is entitled to judgment as a matter of law; in assessing the evidence we take the non-
movant's evidence as true, drawing all reasonable inferences in his or her favor. See
Fed. R. Civ. P. 56(c); Kopp v. Samaritan Health Sys., Inc., 13 F.3d 264, 268-69 (8th
Cir. 1993).
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III. Hostile Work Environment
Appellant first argues that the district court erred in finding that she failed to
establish a sexual harassment claim. She argues that she alleged that she was treated
in a way that she considered severe, offensive, unwelcome, and threatening, that
women were treated differently than men, that the abusive treatment intensified after
sexual harassment complaints were made, and that this abusive treatment adversely
affected her work environment. In particular, appellant argues that she alleged that her
co-workers had physically threatened her, stalked her, humiliated her, cussed at her,
glared at her, slammed doors in her face, and ostracized her, and that her car had been
vandalized. In addition, appellant argues that there was no evidence that management
disciplined anyone for their abusive conduct and that, contrary to the district court’s
findings, she was not satisfied with management’s responses to her sexual harassment
complaints. Appellant argues that she repeatedly complained to management and that
management only summarily investigated her complaints.
In order to establish a claim of hostile work environment sexual harassment by
non-supervisory co-workers, a plaintiff must establish that (a) she belongs to a
protected group; (b) that she was subject to unwelcome sexual harassment; (c) that the
harassment was based on sex; (d) that the harassment affected a term, condition, or
privilege of employment; and (e) that the employer knew or should have known of the
harassment and failed to take proper remedial action. See Caviness v. Nucor-Yamato
Steel Co., 105 F.3d 1216, 1222 (8th Cir. 1997); Kopp v. Samaritan Health Sys., Inc.,
13 F.3d at 269. There is no dispute that appellant is a member of a protected group,
but we agree with the district court that she failed to establish the other elements
necessary to support a claim of hostile work environment sexual harassment.
Consequently, for the reasons discussed below, we hold that the district court did not
err in granting summary judgment in favor of Friskies on this claim.
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Discrimination Based on Sex
Whether harassing conduct constitutes discrimination based on sex is determined
by whether members of one sex are exposed to disadvantageous terms or conditions
of employment to which members of the other sex are not exposed. See Montandon
v. Farmland Indus., Inc., 116 F.3d 355, 358 (8th Cir. 1997) (Montandon); Quick v.
Donaldson Co., 90 F.3d 1372, 1378 (8th Cir. 1996) (Quick) (quoting Harris Forklift
Sys., Inc., 510 U.S. 17, 25 (1993) (Harris) (Ginsburg, J., concurring)). Stated
differently, the harassment must be based on the complaining person's sex. See
Montandon, 116 F.3d at 358. In Oncale v. Sundowner Offshore Serv., Inc., 523 U.S.
75, 81 (1998) (Oncale), the Supreme Court said: "[w]hatever evidentiary route the
plaintiff chooses to follow, he or she must always prove that the conduct at issue was
not merely tinged with offensive sexual connotations, but actually constituted
'discrimina[tion] . . . because of . . . sex.'"
Based on her own admissions, none of the incidents appellant identified as being
a basis for her claim of hostile work environment sexual harassment, was, in fact, based
on her sex. Appellant conceded that Smejdir did not yell at her about the spilled meat
and basket-stacking incidents because she is a woman. Nor is there any evidence that
Smejdir thumped appellant on the head, yelled at her for not giving another employee
a second break, told her no extra large t-shirts remained, was "snotty and rude" to her,
or yelled at her because of her sex. She testified that she believed that Smejdir's
attitude and his comments had nothing to do with the fact that she is a woman.
Similarly, none of the incidents involving Lonnie Schoenfeld was based on
appellant's sex. Appellant admitted that Schoenfeld used profanity toward both male
and female employees, and she believed that Lonnie would have reacted the same way
had a male co-worker laughed at his mistakes. She admitted that when Schoenfeld
slammed the door, looked at her and said, "Jesus Christ," he could have been talking
to himself. Nor is there any evidence that this comment was aimed at her, let alone that
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it was made because of her sex. Finally, there is no evidence that establishes that
Schoenfeld's mistake about the chemical and his reaction were based on her sex. While
it is true that appellant asserted that Schoenfeld treated her differently because she is
a woman and because she complained of sexual harassment, she acknowledged in her
deposition testimony that Schoenfeld's behavior and comments had nothing to do with
her sex, may not have been directed at her, were never reported by her to management,
or, if reported, management took adequate remedial action.
Behavior Was Unwelcome
In addition, the conduct at issue must be "unwelcome" in that the plaintiff neither
solicited it nor invited it and regarded the conduct as undesirable or offensive. See
Meritor Savs. Bank v. Vinson, 477 U.S. 57, 68 (1986) (Meritor); Burns v. McGregor
Elec. Indus., Inc., 989 F.2d 959, 962 (8th Cir. 1993); Hall v. Gus Const. Co., 842 F.2d
1010, 1014 (8th Cir. 1988). "The proper inquiry is whether [appellant] indicated by
[her] conduct that the alleged harassment was unwelcome." Quick, 90 F.3d at 1378,
citing Meritor, 477 U.S. at 68.
We hold that the district court correctly found that appellant was unable to create
a genuine issue of material fact on the question of whether the behavior of her co-
workers Schoenfeld and Smejdir was unwelcome. The undisputed evidence showed
that appellant engaged in behavior similar to that which she claimed was unwelcome
and offensive. For example, while appellant complained that Smejdir and Schoenfeld
yelled at her, she conceded that she, too, had yelled at other co-workers. Similarly,
appellant complained that Schoenfeld called her a "f------ b----," but at the same time
she admitted that she called another co-worker a "f------ p----." Appellant also admitted
that she had used the "f" word in front of both men and women and used language such
as "f------ machine," or this "G.D. machine" while at work, and that she had told off-
color jokes at work and teased other employees. On one occasion she admitted that
she had an "attitude" when talking to her fellow employees in an unkind way at work
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and that she had called Sue Behrens and "chewed her out" when she had a problem
with her pay.
Sufficiently Severe or Pervasive
Appellant also had to establish that the alleged harassment was so severe or
pervasive as to alter a term, condition, or privilege of employment. See Caviness v.
Nucor-Yamato Steel Co., 105 F.3d at 1221. She must show that the workplace is
permeated with discriminatory intimidation, ridicule and insult. See Harris, 510 U.S.
at 21 (citing Meritor, 477 U.S. at 65).
The prohibition of harassment on the basis of sex requires neither
asexuality nor androgyny in the workplace; it forbids only behavior so
objectively offensive as to alter the "conditions" of the victim's
employment. "Conduct that is not severe or pervasive enough to create
an objectively hostile or abusive environment--an environment that a
reasonable person would find hostile or abusive--is beyond Title VII's
purview."
Oncale, 523 U.S. at 81 (citing Harris, 510 U.S. at 21, citing Meritor, 477 U.S. at 67).
The Supreme Court emphasized that this requirement is crucial and that it
ensures that courts and juries do not mistake ordinary socializing in the workplace for
discriminatory "conditions of employment." Oncale, 523 U.S. at 81. The Supreme
Court also said in Faragher v. City of Boca Raton:
These standards for judging hostility are sufficiently demanding to
ensure that Title VII does not become a "general civility code." Properly
applied, they will filter out complaints attacking "the ordinary tribulations
of the workplace, such as the sporadic use of abusive language, gender-
related jokes, and occasional teasing." B. Lindemann & D. Kadue,
Sexual Harassment in Employment Law 175 (1992). We have made it
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clear that conduct must be extreme to amount to a change in the terms and
conditions of employment, and the Courts of Appeals have heeded this
view.
118 S. Ct. 2275, 2283-84 (1998) (Faragher) (citations omitted).
The Supreme Court has identified certain factors to consider in determining
whether the complained-of conduct is sufficiently severe or pervasive as to constitute
sexual harassment under Title VII, and therefore affect the employee's terms and
conditions of employment. Specifically, a court should consider the "frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating,
or a mere offensive utterance; and whether it unreasonably interferes with an
employee's work performance." Harris, 510 U.S. at 23. "More than a few isolated
incidents are required." Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 573 (8th Cir.
1997) (citing Meritor, 477 U.S. at 67). We agree with the district court that appellant
failed to prove that the alleged harassment was so intimidating, offensive, or hostile that
it "poisoned the work environment." Scott v. Sears, Roebuck & Co., 798 F.2d 210,
214 (7th Cir. 1986); see also Caleshu v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
737 F. Supp. 1070 (E.D. Mo. 1990) (dismissing hostile environment claim even though
plaintiff presented evidence that sales manager kissed her, touched her, told her off-
color jokes, invited her to dinner). Appellant was able to work full shifts and perform
all of her duties. While it is true that she complained about nine incidents, none of
them, either individually or collectively, was severe or pervasive enough so as to alter
a term, condition, or privilege of her employment.
The issue under Title VII is whether the work environment was both objectively
and subjectively offensive, that is, one that a reasonable person would find hostile or
abusive. See Harris 510 U.S. at 21-22. "There is no bright line between sexual
harassment and merely unpleasant conduct . . . ." Hathaway v. Runyon, 132 F.3d 1214,
1221 (8th Cir. 1997) (citations omitted). "'[S]imple teasing,' offhand comments, and
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isolated incidents (unless extremely serious) will not amount to discriminatory changes
in the 'terms and conditions of employment.'" Faragher, 118 S. Ct. at 2283 (citations
omitted). Appellant's evidence of a hostile work environment falls flat in light of the
fact that she engaged in the very type of conduct about which she now complains, a fact
that she does not attempt to refute. See id. (plaintiff must perceive environment as
offensive).
Appellant's lawsuit represents an attempt to impose a code of workplace civility
under Title VII. This, however, is not the purpose of Title VII. Title VII was not
designed to create a federal remedy for all offensive language and conduct in the
workplace. See e.g., Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 753 (4th
Cir.), cert. denied, 519 U.S. 818 (1996). Moreover, contrary to appellant's argument,
the Supreme Court has never held that "workplace harassment, even harassment
between men and women, is automatically discrimination because of sex merely
because the words used have sexual content or connotations." Oncale, 523 U.S. at 80.
Appellant undoubtedly experienced unpleasant conduct and rude comments, but we
hold that the district court was correct in finding that she was not subjected to sexual
harassment so severe or pervasive as to alter the conditions of employment and create
a hostile work environment in violation of Title VII.
Adequate Remedial Response
There is no dispute that Friskies responded to appellant's complaints to her
satisfaction on those occasions when she made Friskies aware of the problems in the
workplace. An employer is not liable if it takes prompt remedial action which is
reasonably calculated to end the harassment once the employer knew or should have
known about the harassment. See Carter v. Chrysler Corp., 173 F.3d 693, 702 (8th Cir.
1999); Zirpel v. Toshiba America Info. Sys., Inc., 111 F.3d 80, 81 (8th Cir. 1997);
Callanan v. Runyun, 75 F.3d 1293, 1296 (8th Cir. 1996) (summary judgment was
appropriate because the alleged conduct was not frequent, severe, physically
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threatening or humiliating and the defendant took prompt remedial action once it
became aware of the improper behavior). Appellant produced no evidence that Friskies
knew or should have known of the alleged harassment and yet failed to take proper
remedial action. For example, she reported the following incidents: (1) Smejdir yelled
at her for not giving another employee a break; (2) Smejdir did not give her an extra
large t-shirt; (3) Lonnie Schoenfeld misinformed her about which chemical was to be
placed in a product; and (4) Lonnie Schoenfeld confronted her after she laughed at his
mistake. After she reported these incidents to management, management took
appropriate action: Smejdir was no longer permitted to rely on her for breaks; she
received the t-shirt that she wanted; management told her that the chemical mixup
incident would not be held against her and she in fact received no warning or reprimand
or lost any pay; and Filipi investigated her complaints about Lonnie Schoenfeld and
reprimanded him that same day, and thereafter he never used profanity around appellant
again. Finally, in September 1996, she was transferred at her request from the meat
preparation department. The undisputed evidence showed that every time she
complained to management, it responded to her satisfaction. Moreover, after
management took action, the incidents were not repeated. Thus, management took
appropriate action to end the alleged harassment. Cf. Smith v. St. Louis University,
109 F.3d at 1265 (summary judgment denied where employer took four (4) months to
respond to the plaintiff's initial complaints and seven (7) months from the time the
plaintiff detailed her complaints). We hold that the district court correctly determined
that there was no genuine issue of material fact as to whether Friskies promptly and
adequately responded to appellant's complaints.
IV. Retaliation
Next, appellant argues that the district court erred in finding that she failed to
establish a retaliation claim. She argues that it is undisputed that she engaged in
protected activity, that is, she complained about sexual harassment and even filed a
sexual harassment charge with the state equal opportunity commission. She argues that
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her co-workers, as well as co-workers whom she regarded as lead persons or first-line
supervisors, treated her with hostility after she engaged in protected activity. She
argues that the mere fact that the retaliation was perpetrated by co-workers and not
supervisors does not insulate Friskies from liability if Friskies failed to take adequate
remedial action. Appellant argues that, although management had a sexual harassment
policy and her supervisors were in general supportive, in fact management failed to
effectively alleviate the hostile work environment. She argues that, as a result, she was
forced to request a transfer to another department, a transfer that she argues was an
adverse employment action.
To establish a claim of retaliation, appellant had to show that (1) she filed a
charge of harassment or engaged in other protected activity; (2) her employer
subsequently took an adverse employment action against her; and (3) the adverse action
was causally linked to her protected activity. See Cross v. Cleaver, 142 F.3d 1059,
1071-72 (8th Cir. 1998); Manning v. Metropolitan Life Ins. Co., 127 F.3d 686, 692 (8th
Cir. 1997); Cram v. Lamson & Sessions Co., 49 F.3d 466, 474 (8th Cir. 1995).
Appellant's retaliation claim is not based on retaliation by supervisory employees. Her
retaliation claim is based upon hostility from co-workers which she asserted her
supervisors ignored.
No Adverse Employment Action
The undisputed facts show that Friskies did not take any adverse employment
action against appellant: (1) she suffered no diminution in her title, salary or benefits;
(2) she received her normal raise provided under the collective bargaining agreement;
and (3) when she requested, she was transferred, with management approval, from the
meat preparation department to packaging. Without proof of the requisite adverse
employment action, the district court correctly held that appellant's retaliation claim
must fail as a matter of law. See Cross v. Cleaver, 142 F.3d at 1073 (employment
actions that are sufficiently adverse to sustain a retaliation claim are also often actions
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in which the retaliator wields the employer's authority, either actually or apparently, to
effect the retaliation, which must take the form of a material employment
disadvantage); Lyoch v. Anheuser-Busch Cos., 139 F.3d 612, 616 (8th Cir. 1998)
(summary judgment was appropriate on plaintiff's retaliation claim because plaintiff
suffered no decrease in title, salary, or benefits); Manning v. Metropolitan Life Ins. Co.,
127 F.3d at 692 (employment actions that were sufficiently adverse to sustain a
retaliation claim include tangible change in duties or working conditions that
constituted a material employment disadvantage or an ultimate employment decision
such as termination, demotion, reassignment, but not merely hostility, disrespect, or
ostracism); Kim v. Nash Finch Co., 123 F.3d 1046, 1060 (8th Cir. 1997) (sufficiently
adverse actions include discharge, reduction of duties, actions that disadvantage or
interfere with the employee's ability to do his or her job, and "papering" of an
employee's file with negative reports and reprimands); Montandon v. Farmland Indus.,
Inc., 116 F.3d at 359 (sufficiently adverse actions include termination, demotion,
transfers involving changes in pay or working conditions, and negative evaluations used
as the basis for other employment actions).
Ostracism by Co-workers
Appellant's only claim of retaliation is that her co-workers shunned her. In
Manning v. Metropolitan Life Ins. Co., 127 F.3d at 692-93, we held that ostracism and
disrespect by supervisors did not rise to the level of an adverse employment action.
See also Miller v. Aluminum Co. of America, 679 F. Supp. 495, 505 (W.D. Pa. 1988)
(snubbing by supervisors does not amount to unlawful retaliation), aff'd, 856 F.2d 184
(3d Cir. 1988) (table); cf. Ross v. Glickman, 125 F.3d 859 (9th Cir. 1997) (table) (per
curiam) (No. 96-16527) (slip op. at 4) (shunning by office staff not actionable hostile
work environment under Title VII). These cases suggest that ostracism by co-workers
is not an adverse employment action and cannot, without more, be the foundation for
a retaliation claim. See Munday v. Waste Management of North America, Inc., 126
F.3d 239, 243 (4th Cir. 1997) (shunning of plaintiff by co-workers at direction of
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supervisor does not, as a matter of law, rise to the level of an adverse employment
action for Title VII purposes), cert. denied, 118 S. Ct. 1053 (1998); see Wu v. Thomas,
996 F.2d 271, 273 n.3 (11th Cir. 1993) ("we cannot find any case that clearly
established that retaliatory harassment, as opposed to sexual or racial harassment, could
violate Title VII where the employer caused the employee no tangible harm, such as
loss of salary, benefits or position"), cert. denied, 511 U.S. 1033 (1994); Miller v.
Aluminum Co. of America, 679 F. Supp. at 505 (plaintiff must show more than
occasional unkind words, snubs and perceived slights by defendant's agents to prove
adverse employment action); see also Kim v. Nash Finch Co., 123 F.3d at 1060 (court
must look for "the kind of serious employment consequences that adversely affected
or undermined [the employee's] position, even if she was not discharged demoted or
suspended").
We hold that, without evidence of some more tangible change in duties or
working conditions that constitute a material employment disadvantage, general
allegations of co-worker ostracism are not sufficient to rise to the level of an adverse
employment action for purposes of Title VII.
Causal Connection
Finally, to establish a retaliation claim, the plaintiff must show a causal
connection between protected activity and an adverse employment action. See Harris
v. Secretary of United States Dep't of the Army, 119 F.3d 1313, 1318 (8th Cir. 1997).
Here, there is no evidence that appellant's co-workers' behavior, even if it could
constitute an adverse employment action, was caused by the employer. Here, appellant
testified that Lonnie was rude to her because he was angry and because of appellant's
friendship with another employee, Kathy Ramer. She also testified that he yelled at her
because she was "just in his way that day and [he] decided to take it out on [her]."
None of these explanations establish retaliatory conduct or motive by management, nor
do they establish the element of causation that is required in a retaliation case. Thus,
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we hold that the district court correctly decided that there was no genuine issue of
material fact as to whether there was a causal connection between protected activity
and an adverse employment action.
Finally, we note that, in the order granting summary judgment, the district court
also struck appellant's affidavit and attachments thereto to the extent that they
attempted to create a conflict with her deposition testimony. See Ode v. Omtvedt, 883
F. Supp. 1308, 1318 (D. Neb. 1995). The district court also noted, slip op. at 9 n.1,
citing Gross v. Burggraff Constr. Co., 53 F.3d 1531, 1546 (10th Cir. 1995), it was not
required to scour the record to locate specific controverting evidence. Here, appellant
failed to assign the court's order as error, nor did she brief the propriety of the order
striking her affidavit and attachments thereto. Hence, appellant cannot now rely on
those documents and we deem that she has waived any argument that these documents
should be a part of the record on appeal and ought to be considered by this court as
demonstrating material facts in dispute. See Fed. R. App. P. 28(a)(5) (requiring the
inclusion of a statement of issues presented for review in appellant's brief); 28(a)(9)(A)
( providing appellant's argument must contain the contentions on the issues presented
and the reasons therefor).
V. Conclusion
Accordingly, we hold that the district court did not err in granting summary
judgment in favor of Friskies on appellant's sexual harassment and retaliation claims;
therefore, the judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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