Bobbette Blake v. MJ Optical , 870 F.3d 820 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-3100
___________________________
Bobbette M. Blake
lllllllllllllllllllll Plaintiff - Appellant
v.
MJ Optical, Inc., a Nebraska corporation
lllllllllllllllllllll Defendant - Appellee
____________
Appeal from United States District Court
for the District of Nebraska - Omaha
____________
Submitted: May 10, 2017
Filed: August 31, 2017
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Before RILEY, BEAM, and SHEPHERD, Circuit Judges.
____________
RILEY, Circuit Judge.
Bobbette Blake sued her former employer, MJ Optical, Inc., alleging she was
the victim of sex discrimination, age discrimination, and a hostile work environment.
The district court1 granted MJ Optical’s motion for summary judgment, finding
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
Blake’s evidence insufficient to support her federal and state law claims. Blake
appeals, and we affirm. See 28 U.S.C. § 1291.
I. BACKGROUND
This case involves Blake’s relationships with MJ Optical and the Hagge family,
both of which began over forty years ago. Blake started working at a company called
Shamrock in the early 1970s. Shamrock’s owner, Michael Hagge, would sometimes
bring his then-adolescent son, Marty Hagge, to help around the shop. It is not entirely
clear in the record, but at some point the Hagges went from owning Shamrock to MJ
Optical and Blake followed them there. For decades Blake worked as a bench
technician in the finishing department—fitting eyeglass lenses into frames—for
Shamrock, and then MJ Optical.2
At some point before 1993, Marty became Vice President of MJ Optical.
Marty was one step removed from being Blake’s direct supervisor, but “[h]e
supervised the whole shop” and Blake interacted with him every day. Blake
maintains they had a purely “[e]mployer/employee relationship,” albeit one that
sometimes extended beyond work. For instance, Marty invited Blake to his
daughter’s wedding, and Blake attended; Marty enrolled in a few college courses with
Blake’s grandson, and at least once helped the grandson with class work; and Marty
lent Blake’s church a hog cooker, prompting Blake to introduce him to her pastor.
These anecdotes are illustrative of what Blake admits was a “good” relationship with
Marty for a majority of her employment.
Blake claims that all changed at her husband’s funeral in 1999. Marty attended
the funeral, as did his father and several other MJ Optical employees. Blake says she
was standing outside the funeral home when Marty walked by and “grabbed [her]
2
Blake worked for the Hagges’ Omaha-based businesses continuously from the
early 1970s to May 2013, except for a two-year hiatus in the early 1990s.
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fanny.” When Blake asked “What was that all about?” Marty replied, “I thought you
needed it.” That was the entirety of the exchange.
However that was not the end of the conduct Blake now cites as the basis for
this action. From that point onward, Marty would occasionally touch Blake’s
buttocks at “[v]arious times during the workday.” According to Blake, Marty “would
either smack it really hard or grab [her] whole cheek of [her] butt. I mean, it was no
love pat.” Blake flashed “a dirty look” at least once in response to the touching, but
she never verbalized her complaint to Marty or anyone else given her belief it
“[w]ouldn’t have done any good.” Marty also began telling Blake she “needed to find
a man,” which Blake took to mean “that if [she] had sex with a man, that it would
make [her] happy.”3 Again, any frustrations Blake had about these recurring
comments were not communicated to Marty or anyone else. Blake also recalls one
exchange where she was standing in front of Marty’s desk when he commented on
her breasts, saying “you’d better watch those things because they’re going to poke my
eyes out” and asking whether her nipples were “the size of nick[el]s or quarters.”
“[E]mbarrassed” by the interaction, Blake says she “probably turned red” and “went
home and bought padded underclothes.”
Blake found herself on the receiving end of what she perceived to be age-
related affronts, too.4 For instance, Marty would tell Blake he “only kept her around
to ‘watch her die,’” even when other MJ Optical employees were present and could
3
Marty admits he “would pat [Blake] on the bottom and tell her that she needed
to find a man.” To Marty, his poor behavior was an “attempt to make [Blake] happy,
to lighten her mood a bit.” Marty also claims Blake “would likewise pat [him] on the
bottom,” a disputed issue of fact we must ignore at the summary-judgment stage. See
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc).
4
Blake was born in 1949, meaning she was in her 50s and 60s when the
complained-of conduct took place. She was the oldest employee in the nine-person
finishing department, but not the oldest employee at MJ Optical.
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hear. Blake acknowledges the comments were occasionally prompted by her asking
Marty why he kept her around and were “[s]ometimes” meant as a joke. Marty would
also tell Blake her “hands aren’t any good anymore” whenever she needed his
assistance fitting lenses into difficult frame styles. Yet again, Blake never informed
Marty that she did not find the comments funny, nor did she complain to anyone else.
Notwithstanding all of the above, Blake admits she would platonically touch
Marty “between his shoulders” and joke around with Marty “[o]n occasion.”
Sometimes Marty said, “I love you, Bobbi,” to which Blake would respond, “I love
you, too, Marty.” Furthermore, when asked during a deposition whether she ever
thought Marty “was treating [her] differently because of [her] gender,” Blake replied,
“No.” Other than the comments above, the only time Blake felt treated differently
due to her age was when Marty told her she was “too old” to carry stacks of trays, a
limitation she says was unwarranted but one that “[d]idn’t matter” to her.
The chain of events that ultimately led to Blake leaving MJ Optical began on
May 9, 2013, when she noticed a problem with a large number of frames. Blake
reported the issue to Mary Hagge—the president of MJ Optical and Marty’s
mother—who then tasked Marty with finding and fixing the problem. After Marty
determined there was nothing wrong with the tracing machine, he turned his focus to
Blake’s work in the “mounting area.” In an attempt to “diagnose” the problem, Marty
“temporarily asked [Blake] to refrain from completing her mounting work” while two
other long-term employees took over for a few days to see if the problem was manual
or mechanical. Blake kept busy with other work, did not consider this short-term
reassignment to be a demotion, continued at the same pay rate, was not worried she
would be fired, and did not complain in any way.
Nonetheless—and despite explicit instructions to the contrary—Blake resumed
her spot at the mounting station two or three days later when she noticed it was
unoccupied. As Blake tells it, she was about to start when Marty noticed her from the
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front of the shop and came at her “like a bull moose. He was red in the face,
chomping his tongue like he does when he gets angry.” Then Marty said, “I don’t
want you doing that, sit down. Let somebody else do it.” Marty also accused Blake
of being the reason he had to quit school and stay put at MJ Optical, an accusation
Blake says Marty would sometimes make to all employees out of bitterness for his
own situation. This was not the first time Marty had exhibited his angry demeanor
in the workplace, so Blake feared he may become physically aggressive.5
After the encounter Blake was “shaking and crying” so much she “couldn’t
hardly function.” Blake sought out Mary and described Marty’s outburst, noting how
upset it made her. Mary dismissed the notion Marty would have ever hit Blake—he
“wouldn’t do something like that”—but said she would talk to Marty about his anger
problem. Despite finally registering a complaint against Marty, Blake did not
mention any mistreatment based on her sex or age. (Blake did take this opportunity
to air her grievances against her direct supervisor for unrelated reasons.) The
conversation ended with Mary telling Blake to “go home and plant flowers.” Blake
did just that and took the afternoon off (with pay).
Rather than return the next day, Blake resigned from MJ Optical by leaving a
voicemail for Mary. Blake again told Mary she was afraid of Marty’s
“noncontrollable” anger, and also expressed her gratitude to Mary for being a good
boss. There is no evidence of any communication between Blake and anyone at MJ
Optical between the day Blake quit and the day she filed her discrimination charge.
Blake has since elaborated on the reasons she felt “compelled to resign.” In addition
to Marty’s anger, the driving force behind Blake’s decision seems to have been the
problem with the ruined frames “and the way the work was coming out.” Blake
5
None of the three prior outbursts Blake recounted in her deposition (1) directly
involved her, (2) resulted in Marty striking an employee, or (3) linked Marty’s anger
to sex- or age-based animus. To Blake, this final outburst “was the topper.”
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believed the issue “was never going to get fixed,” meaning she would never return
to her old duties because Marty “thought that [she] was the problem.”6 Blake also felt
like she had no choice but to resign because she was “close to retirement age” and
sensed MJ Optical was “weeding out” expensive, older employees in favor of a
cheaper, younger work force. Notably, Blake testified her decision had nothing to do
with any of Marty’s sexual or age-related conduct. She also had no idea how her pay
compared to younger employees’ rates.
In October 2014, Blake sued MJ Optical in federal court for sex and age
discrimination in violation of federal and state law.7 See Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e, et seq.; Nebraska Fair Employment Practice Act,
Neb. Rev. Stat. §§ 48-1101, et seq.; Age Discrimination in Employment Act of 1967,
29 U.S.C. §§ 621, et seq.; Nebraska Age Discrimination in Employment Act, Neb.
Rev. Stat. §§ 48-1001, et seq. MJ Optical moved for summary judgment about one
year later. See Fed. R. Civ. P. 56. Despite noting Marty’s behavior was “without a
doubt disgusting,” the district court granted MJ Optical’s motion and dismissed
Blake’s claims with prejudice.8 We must now determine whether that decision was
the right one.
6
As it turned out, it appears Blake was not the root of the frame-assembly
problem.
7
The state acts are patterned after federal law, and given that neither party
points to any differences between them, our analyses of Blake’s federal claims apply
with equal force to Blake’s state claims. See Hartley v. Metro. Utils. Dist. of Omaha,
885 N.W.2d 675, 692 (Neb. 2016); Billingsley v. BFM Liquor Mgmt., Inc., 645
N.W.2d 791, 801 (Neb. 2002).
8
The district court reaffirmed its conclusion by denying Blake’s self-styled
“motion for reconsideration.” See Fed. R. Civ. P. 59(e), 60(b).
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II. DISCUSSION
Blake maintains three claims on appeal: (1) disparate treatment based on sex
discrimination; (2) disparate treatment based on age discrimination; and (3) hostile
work environment.9 We review the grant of summary judgment on each claim de
novo. See Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en
banc). We must affirm summary judgment if “there is no genuine dispute as to any
material fact.” Fed. R. Civ. P. 56(a). In assessing whether such a dispute exists, we
view the evidence in the light most favorable to Blake and afford her all reasonable
inferences. See Edwards v. Hiland Roberts Dairy, Co., 860 F.3d 1121, 1125 (8th Cir.
2017). Still, there must be enough evidence to allow “‘a rational trier of fact’” to find
for Blake on the required elements of her claims. Torgerson, 643 F.3d at 1042(quoting Ricci v. DeStefano, 557 U.S. 557, 586 (2009)); see also Brunsting v. Lutsen
Mountains Corp., 601 F.3d 813, 820 (8th Cir. 2010) (“[I]f a nonmoving party who has
the burden of persuasion at trial does not present sufficient evidence as to any element
of the cause of action, then summary judgment is appropriate.”).
A. Sex Discrimination
An employer cannot discriminate against an employee “because of such
individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1); Neb. Rev. Stat. § 48-1104(1).
Blake can defeat summary judgment by “produc[ing] direct evidence of
9
We are receptive to MJ Optical’s point that Blake has “comingled [sic] causes
of action and blurred applicable legal standards” in getting to this point. For instance,
Blake did not explicitly plead a hostile work environment claim and mentioned the
phrase only once in her brief in opposition to summary judgment (and in an
explanatory parenthetical, no less), but now treats that theory as her primary
argument. The district court organized and dismissed her claims, discussing a hostile
work environment claim, and because Blake attacks parts from each section of the
district court’s thorough analysis, we also will address this claim as well. See
Winspear v. Cmty. Dev., Inc., 574 F.3d 604, 607 (8th Cir. 2009) (describing the
“wholly distinct causes of action” for “[h]ostile work environment and constructive
discharge claims” as having “different elements”).
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discrimination,” or by “creat[ing] an inference of discrimination under the burden-
shifting framework of McDonnell Douglas.” Ames v. Nationwide Mut. Ins. Co., 760
F.3d 763, 767 (8th Cir. 2014) (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973)). Because each path requires that Blake identify an adverse employment
action, we skip to that issue to resolve this claim. See id.Blake admits she was not fired or asked to resign, and she does not claim she
was subjected to a pay cut, demotion, or undesirable transfer on the basis of her sex.10
Rather, Blake’s argument that she suffered an adverse employment action rests
entirely upon her claim she was constructively discharged because MJ Optical
“fail[ed] to control [Marty’s] conduct.” “To prove a constructive discharge, an
employee must show that the employer deliberately created intolerable working
conditions with the intention of forcing her to quit.” Alvarez v. Des Moines Bolt
Supply, Inc., 626 F.3d 410, 418 (8th Cir. 2010); see also Tidwell v. Meyer’s Bakeries,
Inc., 93 F.3d 490, 494 (8th Cir. 1996) (describing the objective nature of the
intolerability inquiry). An employee claiming constructive discharge shoulders a
substantial burden. See O’Brien v. Dep’t of Agric., 532 F.3d 805, 810-11 (8th Cir.
2008).
Blake cannot prove constructive discharge, because “[w]e have consistently
recognized that an employee is not constructively discharged if she ‘quits without
giving [her] employer a reasonable chance to work out a problem.’” Trierweiler v.
Wells Fargo Bank, 639 F.3d 456, 460 (8th Cir. 2011) (second alteration in original)
(quoting Brenneman v. Famous Dave’s of Am., Inc., 507 F.3d 1139, 1144 (8th Cir.
10
Blake does not contend her temporary reassignment constituted an adverse
employment action. In any event, all evidence suggests the two- to three-day
reassignment “was based entirely upon addressing the problem with the frames and
had no relation to [Blake’s] age or gender.” The district court correctly noted this is
a legitimate, non-discriminatory reason for the short-term shift in duties. Blake does
not argue this proffered reason was mere pretext. See Torgerson, 643 F.3d at 1046.
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2007)); see also, e.g., Tidwell, 93 F.3d at 494. Blake did not give MJ Optical a
“reasonable chance” to remedy the alleged mistreatment here, as she never told
anyone there was a problem in need of fixing. The only time Blake complained about
Marty came one day before she quit, and that was about conduct unrelated to her sex.
Our cases make clear Blake’s failure to seek a solution before quitting—either by
telling Marty to stop, or by alerting her immediate supervisor or Mary to the alleged
harassment—is fatal to her constructive discharge claim. See, e.g., Trierweiler, 639
F.3d at 460-61; Alvarez, 626 F.3d at 418-19.
Blake tries to avoid this result by arguing any attempt to fix the problem would
have been “futile” because Mary “wouldn’t have done anything about it.” Blake does
not support this conclusory allegation with any reasoning or concrete example where
Mary ignored such a complaint—in fact, Blake says she considered Mary to be “a
good boss” and recalls Mary promising to talk with Marty after the one and only time
Blake complained about his behavior. Nor does Blake cite any case recognizing her
proposed futility exception, likely because our precedent all but forecloses the notion:
“‘Part of an employee’s obligation to be reasonable . . . is an obligation not to assume
the worst, and not to jump to conclusions too fast.’” Alvarez, 626 F.3d at 419(quoting Smith v. Goodyear Tire & Rubber Co., 895 F.2d 467, 473 (8th Cir. 1990)).
Blake knew she could report incidents directly to the company president, Mary, as
evidenced by the fact she did just that the day before she quit. We are cognizant of
the fact Mary is Marty’s mother, and reporting to her “may not have been . . . ideal.”
Ames, 760 F.3d at 769. Yet Blake “had an obligation not to jump to the conclusion
that the attempt would not work and that her only reasonable option was to resign.”
Id. Before being held responsible for whatever problem there was, MJ Optical was
entitled to a reasonable chance to address it. MJ Optical did not get such a chance.
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Thus Blake did not suffer an adverse employment action, meaning her claims for
disparate treatment on the basis of sex fail.11
B. Age Discrimination
Given our conclusion above, Blake’s conventional age-discrimination claims
need little discussion. An employer cannot discriminate against an employee
“because of such individual’s age.” 29 U.S.C. § 623(a)(1); Neb. Rev. Stat. § 48-
1004(1)(a). Other than a heightened causation requirement for age-discrimination
plaintiffs, courts assess age-based claims in the same way they do sex-based claims.
See Holmes v. Trinity Health, 729 F.3d 817, 821 (8th Cir. 2013). Again, there must
be an adverse employment action. See id. at 821-22. And again, this is where
Blake’s claims fail. Blake did not alert anyone at MJ Optical to what she perceived
to be age discrimination or otherwise attempt to resolve the issue in any way.
Therefore she did not provide the company with a reasonable chance to fix the
problem before she quit. Our conclusion is the same as it was above—Blake did not
suffer an adverse employment action, so she cannot maintain a claim for disparate
treatment on account of her age.
C. Hostile Work Environment
That leaves Blake’s allegation she was subjected to a hostile work environment
during her time at MJ Optical. Though it is just one way to show sex- or age-based
discrimination, a hostile work environment claim is a “distinct cause[] of action” that
demands a different evidentiary showing. See Winspear v. Cmty. Dev., Inc., 574 F.3d
604, 607 (8th Cir. 2009) (“The claims have different elements, . . . [and] hostile work
11
We express no opinion on whether Blake’s claim of constructive discharge
would fail for any of the other reasons stated by the district court or argued by MJ
Optical. For instance, we decline to address whether Blake could prove MJ Optical
intended to force her to quit. See Fercello v. County of Ramsey, 612 F.3d 1069, 1083
(8th Cir. 2010). We also pass on resolving the significance of Blake’s own testimony
that she quit for reasons unrelated to sex- or age-based harassment.
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environment discrimination can exist absent a ‘tangible employment action.’”
(quoting Pa. State Police v. Suders, 542 U.S. 129, 143 (2004))). To prove a hostile
work environment claim, Blake must show (1) she “‘is a member of the class of
people protected by the statute,’” (2) she “‘was subject to unwelcome harassment,’”
(3) “‘the harassment resulted from [her] membership in the protected class,’” and
(4) “‘the harassment was severe enough to affect the terms, conditions, or privileges
of [her] employment.’”12 Sellers v. Deere & Co., 791 F.3d 938, 945 (8th Cir. 2015)
(quoting Ryan v. Capital Contractors, Inc., 679 F.3d 772, 778 (8th Cir. 2012)).
We only address the second element here, which requires proof Blake
considered Marty’s conduct unwelcome. The element’s phrasing is somewhat of an
oversimplification, as the “‘gravamen’” of any harassment claim is that the alleged
misconduct was “‘unwelcome.’” Quick v. Donaldson Co., 90 F.3d 1372, 1377 (8th
Cir. 1996) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986)).
Taking direction from the Supreme Court, we have said “[t]he proper inquiry is
whether the plaintiff indicated by [her] conduct that the alleged harassment was
unwelcome.” Id. at 1378 (emphasis added) (citing Meritor, 477 U.S. at 68); see also
Jenkins v. Univ. of Minn., 838 F.3d 938, 945 (8th Cir. 2016); Beard v. Flying J, Inc.,
266 F.3d 792, 798 (8th Cir. 2001) (“A plaintiff must indicate by her conduct that the
harassment was unwelcome.”). The district court concluded Blake failed to adduce
sufficient evidence she indicated Marty’s conduct was unwelcome. MJ Optical
argues this was right; Blake disagrees. Though the inquiry is necessarily fact
dependent, we find guidance in decisions from our court and other courts that have
discussed the competing conclusions urged by each party.
12
When the alleged harasser is a non-supervisor, the plaintiff must also prove
the employer knew or should have known about the harassment and failed adequately
to address it. See Rickard v. Swedish Match N. Am., 773 F.3d 181, 184 & n.2 (8th
Cir. 2014). Those elements are not in play here, as Marty was a supervisor.
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The first set of cases are those in which there was insufficient indication the
conduct was unwelcome. MJ Optical leans heavily on Stuart v. General Motors
Corp., 217 F.3d 621 (8th Cir. 2000). In Stuart, there was evidence the plaintiff was
subjected to inappropriate sexual comments on a “regular” basis; pornographic photos
and offensive signs in her locker and workspace; and “‘saluting’ by male co-workers”
who would grab their genitals and make “‘hoo-ha’ noises” as she passed. Id. at 632.
Though we held a reasonable person may consider this conduct to be unwelcome
severe or pervasive harassment, we found no evidence the plaintiff considered it
unwelcome during the time frame at issue. See id. Our decision rested almost
entirely on the fact the plaintiff never made timely complaints about the alleged
harassment, either formally or informally. See id. at 632 & nn.16-17. This reasoning
has doomed plaintiffs in other cases, too. See, e.g., Souther v. Posen Constr., Inc.,
523 F. App’x 352, 355 (6th Cir. 2013) (unpublished) (holding “a jury could not find
[the] advances unwelcome” where the plaintiff “never complained” to the harasser
“or anyone else,” notwithstanding the plaintiff’s “after-the-fact statement in her
deposition” the conduct was unwelcome).
Other cases have looked to the plaintiff’s behavior, relationship with the
alleged harasser, and history with the company to conclude the plaintiff could not
prove the conduct was unwelcome. See, e.g., Scusa v. Nestle U.S.A. Co., 181 F.3d
958, 962, 966 (8th Cir. 1999) (deciding there was insufficient proof where the
plaintiff “engaged in behavior similar to that which she claimed was unwelcome and
offensive,” despite timely complaints and journal entries indicating certain behaviors
were unwelcome); Souther, 523 F. App’x at 355 (concluding the conduct was not
unwelcome based, in part, on the plaintiff’s conduct, the fact she continued to return
to the company for work, and her almost thirty-year relationship with the alleged
harasser including consensual sex during some of that time); see also Ammons-Lewis
v. Metro. Water Reclamation Dist. of Greater Chi., 488 F.3d 739, 746-47 (7th Cir.
2007) (addressing an evidentiary dispute and noting that, although a preexisting
relationship by no means nullifies otherwise actionable harassment, “the existence of
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a current or former social relationship between the harasser and the harassee can shed
light on such relevant questions as whether the complained-of conduct was
unwelcome”).
The second line of cases are those in which the plaintiff adequately indicated
the harassment was unwelcome. Sometimes the plaintiff has satisfied this element
by showing she explicitly rebuffed the bad actor’s propositions or told the harasser
she found the conduct offensive. See, e.g., Williams v. Herron, 687 F.3d 971, 975
(8th Cir. 2012) (deciding the plaintiff “adequately communicated” the conduct was
unwelcome where she twice told the harasser it made her “uncomfortable”). Other
times the plaintiff has reported the conduct to someone with the authority to address
the problem. See, e.g., Beach v. Yellow Freight Sys., 312 F.3d 391, 396 (8th Cir.
2002) (holding evidence was sufficient where the plaintiff “repeatedly complained”
to management). We have also found it relevant when the bad actor somehow
acknowledged his behavior was unwelcome. See, e.g., Bales v. Wal-Mart Stores,
Inc., 143 F.3d 1103, 1108 (8th Cir. 1998) (affirming jury verdict where the harasser
admitted the plaintiff had “complained to him ‘four or five’ times about his conduct
towards her”). Oftentimes the plaintiff has indicated the harassment was unwelcome
in more than one of these ways. See, e.g., Jenkins, 838 F.3d at 943, 945 (concluding
the plaintiff satisfied her burden where she told the bad actor “multiple times” she
was not interested in him, she notified a counselor and her academic advisor about
the harassment, and the bad actor “was aware that [the plaintiff] found his advances
unwelcome” given that “he ‘apologized if his expressing interest in [the plaintiff]
made her uncomfortable’”). There may well be other ways a plaintiff could
adequately indicate unwelcomeness, these simply appear to be the most common.
The evidence here puts Blake’s claims within the first category of cases. Blake
and Marty have known each other for over forty years. See, e.g., Souther, 523 F.
App’x at 355. Although we cannot accept MJ Optical’s suggestion their relationship
was akin to one between “an aunt and nephew”—and in any event we fail to see how
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such a “familial” relationship would excuse Marty’s behavior—Blake admitted their
relationship was positive for most of that time. This is reflected in the various ways
their relationship extended beyond the workplace. After the complained-of conduct
began in 1999, Blake continued to work at MJ Optical for almost fifteen years
without once telling Marty to stop or complaining to anyone else at MJ Optical.13 See
Stuart, 217 F.3d at 632; cf. Williams, 687 F.3d at 975; Beach, 312 F.3d at 396.
During those fifteen years, Blake and Marty joked around with one another;
they occasionally exchanged “I love yous”; and Blake sometimes touched Marty
“between the shoulders.” While we are not under any illusion these acts are similar
in kind to Marty’s unprofessional and boorish behavior, it does nothing to convey the
allegedly severe and pervasive conduct was unwelcome. See also Scusa, 181 F.3d
at 966. There is no evidence Marty was aware his conduct distressed Blake, either.
Quite the opposite—Marty apparently saw his conduct as an attempt “to lighten [the]
mood a bit,” and Blake recalls Marty would say she “need[ed] to be happy.” Cf.
Jenkins, 838 F.3d at 945; Bales, 143 F.3d at 1108. When Blake finally did go to
Mary to complain about how Marty treated her, she did not mention any of the
conduct she now claims created a hostile work environment. Other than “a dirty
look”—which it is unclear whether anyone even noticed—the first indication Blake
gave that she felt discriminated against was when she filed her administrative charge
alleging as much. This is too little, too late. Blake cannot show she indicated in a
13
Two points merit elaboration. First, unlike in constructive discharge claims,
our hostile work environment cases do not yet recognize any bright-line rule requiring
a plaintiff to have reported the alleged harassment to management in order to prove
conduct was unwelcome. We create no such rule here, either—to the extent the
district court’s decision suggested otherwise, it was wrong (or at least premature).
Second, Blake stresses the lack of any written harassment or reporting policy at MJ
Optical. While we agree this may be unwise (even for a small, family-run company
like MJ Optical), it does not excuse the need for some adequate indication of
unwelcomeness. In any event, there is no question Blake knew she could report
directly to Mary, just as she did the day before she quit.
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timely manner the complained-of conduct was unwelcome, thus she cannot maintain
a claim for hostile work environment.14
III. CONCLUSION
We affirm.
______________________________
14
We issue no opinion on whether the harassment was based on sex or age (an
element MJ Optical challenges), or was severe or pervasive enough to alter a term,
condition, or privilege of Blake’s employment (a requirement the district court found
unsatisfied). See Sellers, 791 F.3d at 945.
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