Opinion
No. 5-767 / 05-0238
Filed November 23, 2005
Appeal from the Iowa District Court for Cass County, James M. Richardson, Judge.
Nita Warne appeals the district court decision denying her sexual harassment claims against her former employer. AFFIRMED.
Mark D. Sherinian of Sherinian Walker Law Firm, West Des Moines, for appellant.
Jaki K. Samuelson and Drew J. Gentsch of Whitfield Eddy, P.L.C., Des Moines, for appellee.
Considered by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
I. Background Facts Proceedings
Nita Warne was previously employed as a sandwich artist by Chaco, Inc., a Subway/TCBY store in Atlantic, Iowa. The managers and sole shareholders were Robert and Kristin Thornton. Other than Warne and the Thorntons, the employees of Chaco were primarily teen-agers who worked part-time, and who engaged in jokes and hi-jinks at work. Chaco had a sexual harassment policy which each employee was required to sign. Warne quit her employment with Chaco on Wednesday, November 15, 2000.
On November 29, 2000, Warne filed a complaint with the Iowa Civil Rights Commission alleging that she had been subjected to sexual harassment at Chaco. She was granted a right-to-sue letter on June 25, 2001. Warne then filed an action in federal court, but this was dismissed for lack of federal subject matter jurisdiction.
Warne filed a petition in Iowa district court on February 6, 2003. On March 20, 2003, she filed a new complaint with the Iowa Civil Rights Commission alleging several counts of retaliation. The Commission found the retaliation charges were not timely. Warne also filed a motion for leave to amend her district court petition to include the retaliation charges. The district court found the administrative law judge's order was res judicata, and concluded Warne was barred from bringing her retaliation claims.
The case proceeded to a trial to the court on the sexual harassment claims. Warne testified to several incidents of sexual harassment. She testified that in 1998, a patron brought in a nude business calendar, which she happened to see. Robert testified Warne asked the patron if she could have one the calendars for her husband. Also, Warne stated Kristin showed her a calendar depicting partially nude motorcycle women, which she intended to give to her son. Kristin testified this calendar was kept in a box in the Thorntons' private office and was never publicly displayed.
Warne stated she overheard Robert tell her daughter Lisa that her chest was not developed. Lisa testified that she had a medical condition where her chest muscles were not developed, and that she discussed this with some friends at Chaco. She affirmed that Robert stated he could have told her that without her having to go to the doctor. However, Lisa denied that Warne was present during this discussion.
Warne stated that she found two sexually explicit drawings, which were left on a desk where she sometimes worked. She asserted that in August 2000, when she came into work she found meatballs arranged in the shape of a penis. No other employees saw the drawings or meatball penis. Warne testified that she complained about these incidents, but was told by the Thorntons to "lighten up." The Thorntons denied any knowledge of these incidents.
Warne also related an incident involving Tootsie Rolls which had been melted and reshaped to look like feces, and left in a bathroom at Chaco. Warne was not present for this incident, and so it was not directed at her and we do not consider it.
On November 13, 2000, Warne came to work and found doughnut holes which had been arranged in the shape of a penis, and which had icing or mayonnaise on it to represent semen. The article was wrapped in plastic wrap. A note was attached which stated, "Nita — Here's breakfast from your two favorite employees, Chad and Chad." Chad Thornton and Chad Hass were two employees at Chaco.
Chad Thornton is the son of Robert and Kristin Thornton. He was also an employee of the company.
Kristin testified that she saw Chad and Chad working on the doughnut hole penis on the evening of November 11, 2000. She threw it away and told them they had better things to do. After Warne complained about the incident, Kristin gave the two employees written warnings that their behavior was not acceptable and ordered them to apoligize to Warne. Chad Thornton apologized to Warne, although she felt his apology was not sincere. Warne testified that the doughnut hole incident was the precipitating factor which caused her to quit her employment at Chaco.
In a deposition, Chad Hass stated that he intended to apologize to Warne on Thursday, November 16, 2000, when they were both scheduled to work, but Warne quit on November 15. In her letter of resignation, Warne asked not to be contacted and this request was respected by the employees of Chaco.
Kristin and Robert testified that Warne never complained to them about sexual harassment, but that she sometimes complained "that the kids were goofing off and not getting their work done." The Thorntons and Steve Rabe, a former manager, testified Warne sometimes brought to work sexually-oriented jokes that she had printed off the internet. Employees Sue Ryerson and Jennifer Wyman testified they did not believe there was an atmosphere of sexual harassment at Chaco. Warne began employment as a hostess at a steakhouse two days after she resigned at Chaco.
Regarding the jokes, innuendos, and calendars, the district court found Warne had been a willing and voluntary participant in these activities. The court found there was insufficient evidence of the sexually explicit drawings or meatball penis. The court determined only the doughnut hole penis incident was germane to the issues in this case. The court concluded the evidence was not continuous, severe or pervasive enough to rise to a violation of the Iowa Civil Rights Act. The court noted, "[h]er only complaint prior to the doughnut hole penis was that the part-timers were goofing off by not working hard." The court specifically found Warne did not resign due to sexual harassment, but her resignation "was due to the fact she was not an assistant manager and did not have the respect of the part-timers." The court concluded Warne failed to show that sexual harassment affected a term, condition, or privilege of her employment. Warne appeals.
II. Scope of Review
On appeal, our review is for the correction of errors at law. See Lynch v. City of Des Moines, 454 N.W.2d 827, 829 (Iowa 1990). We will reverse the district court's factual findings only if they are not supported by substantial evidence. Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 632 (Iowa 1990).
III. Sufficiency of the Evidence
Under the Iowa Civil Rights Act, the maintenance of a sexually hostile work environment through sexual harassment is a form of illegal sex discrimination. Iowa Code § 601A.6(1)(a) (2003); Lynch, 454 N.W.2d at 833. In order to show a claim of a sexually hostile work environment through sexual harassment, a plaintiff must prove:
(1) the plaintiff belongs to a protected class;
(2) the plaintiff was subject to unwelcome sexual harassment;
(3) the harassment was based upon sex;
(4) the harassment affected a term, condition or privilege of employment; and
(5) the employer knew or should have known of the harassment and failed to take prompt and appropriate remedial action.
Lynch, 454 N.W.2d at 833.
A. Harassment Affected a Condition of Employment.
The district court found Warne failed to prove element four, which is that the harassment must affect a term, condition or privilege of employment. See id. Where sexual harassment in the workplace is so pervasive and severe that it creates a hostile work environment, so that the plaintiff must endure an unreasonably offensive environment or quit working, the sexual harassment affects a condition of employment. Vaughn, 459 N.W.2d at 633. Whether conditions are continuous, severe or pervasive enough to rise to a violation of the Iowa Civil Rights Act is a question of fact. Id. The court must consider the totality of the circumstances in making this determination. Id.
There is substantial evidence in the record to support the district court's finding that the harassment in this case did not affect a term, condition or privilege of Warne's employment. While the incident involving the doughnut hole penis could be considered an act of sexual harassment, Warne did not show other incidents of sexual harassment that were continuous, severe or pervasive. The alleged incidents regarding the sexually explicit drawings and the meatball penis were not corroborated by other employees who were also present in the store. The evidence shows that sexually-oriented jokes and innuendo were not unwelcome by Warne, and so cannot constitute sexual harassment. See Lynch, 454 N.W.2d at 833. The evidence supports the district court's finding that Warne did not complain about sexual harassment prior to the doughnut hole penis incident.
Warne claims the district court used the wrong standard because at one point the court stated, "Whether conduct is continuous, severe and pervasive enough to rise to a violation of the Iowa Civil Rights Act is a question of fact." (Emphasis added). However, later in its conclusion the court stated, "the alleged conduct was not continuous, severe or pervasive enough to rise to a violation of the Iowa Civil Rights Act." (Emphasis added). We find the district court applied the correct standard in this second statement.
Additionally, there is substantial evidence in the record to support the district court's finding that Warne did not resign from Chaco due to a sexually hostile work environment. The evidence shows Warne was unhappy because she was not promoted to assistant manager. We also note that on the second day after leaving Chaco Warne had obtained employment which had the potential to pay her more money because she could receive tips.
B. Employer Failed to Take Remedial Action.
The district court also found Warne failed to prove element five, which is that the employer knew or should have known of the harassment and failed to take prompt and appropriate remedial action. See id. "This standard places a reasonable duty on an employer who is aware of discrimination in the workplace to take reasonable steps to remedy it." Vaughn, 459 N.W.2d at 634.
As noted above, there is substantial evidence to support the district court's finding that Warne did not complain about sexual harassment prior to the doughnut hole penis incident. An employer has a duty to act only when the employer knew or should have known of the sexual harassment. See Lynch, 454 N.W.2d at 833. As to the doughnut hole penis incident, the Thorntons took prompt and appropriate action by giving Chad Thornton and Chad Hass a written warning that their conduct was unacceptable and ordered them to apologize to Warne. Warne quit her job and asked not to be contacted before any additional remedial action could be taken by the employer. We find substantial evidence in the record to support the district court's conclusion that Warne failed to prove element five.
IV. Admission of Evidence
Warne contends the district court improperly admitted evidence of sexual conduct that took place outside of work. Generally, such evidence is not admissible to show that sexual harassment was welcomed by a plaintiff during work hours. See Burns v. McGregor Elec. Indus., Inc., 989 F.2d 959, 963 (8th Cir. 1993). We determine the admission of any such evidence was harmless, as Warne's claims were denied because she failed to prove elements four and five, not element two, which is that the plaintiff was subject to unwelcomed sexual harassment. There is substantial evidence to support the district court's findings without resort to evidence of events which took place outside of work.
V. Retaliation Claims
Warne asserts that the district court erred by not considering her claims of retaliation by the Thorntons after she left her job at Chaco. She asserts that the retaliation claims reasonably stemmed from the discrimination claims, and should have been included in the same action.
A similar claim was considered in Atwood v. City of Des Moines, 485 N.W.2d 657, 659 (Iowa 1992), where the supreme court stated:
The other alleged instances of sexual harassment were presented by plaintiff to the civil rights commission, which determined that those claims were time barred. Whether that decision by the agency was correct or incorrect, it was final and binding on plaintiff unless overturned in a petition for judicial review filed pursuant to Iowa Code section 17A.19 (1989). Plaintiff did not seek judicial review of the agency's determination that her other sexual harassment claims were untimely, and thus, she may not complain of such matters in the present action.
As in Atwood, here the Iowa Civil Rights Commission determined Warne's retaliation claims were untimely. Warne did not file a petition for judicial review, and we conclude her retaliation claims are barred by the doctrine of res judicata. See Bennett v. MC #619, Inc., 586 N.W.2d 512, 517-18 (Iowa 1998) ("[T]he final adjudicatory decision of an administrative agency like the civil rights commission is entitled to res judicata effect as if it were a judgment of the court.").
We affirm the decision of the district court.