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finding conduct below the baseline of actionable conduct where the alleged harassment included that a co-worker kissed the plaintiff three times, grabbed her, rubbed her buttocks on a frequent basis, blew kisses at her, followed her into her work area, and used sexual and profane comments directed at the plaintiff
Summary of this case from Pirie v. the Conley Group, Inc.Opinion
Case No. 6-01-3247-CV-S-RED
January 9, 2003
MEMORANDUM AND ORDER
Currently pending before the Court is Defendant Cintas Corporation's ("Cintas") motion for summary judgment (Doc. #65). This case involves a suit by a former employee against her employer for sexual harassment in violation of Title VII. Plaintiff has also asserted a claim for violation of the Missouri Human Rights Act, alleging retaliation, constructive discharge, religious discrimination and for punitive damages. Cintas moves for summary judgment on all counts. For the reasons discussed below, the Court finds that Plaintiff has failed to raise a genuine issue of fact demonstrating that her co-worker Pam Straw's alleged harassment was "because of sex" nor has Plaintiff shown that alleged harassment was severe or pervasive. Similarly, the Court holds that Plaintiff's claims for retaliation, constructive discharge, religious discrimination, and for punitive damages fail as a matter of law.
In her opposition to summary judgment, plaintiff states that she has now abandoned her claim for religious discrimination and offers no response to this part of Cintas' motion.
I. Summary Judgment Standard
Rule 56(c) Federal Rules of Civil Procedure, provides that summary judgment shall be rendered 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." Fry v. Holmes Freight Lines, Inc., 73 F. Supp.2d 1074 (W.D.Mo. 1999). When ruling on a motion for summary judgment, the court should view the facts in the light most favorable to the adverse party and allow the adverse party the benefit of all reasonable inferences to be drawn from the evidence. See id. (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Reed v. ULS Corp., 178 F.3d 988, 900 (8th Cir. 1999)).
If there is no genuine issue about any material fact, summary judgment is proper because it avoids unnecessary and costly litigation and promotes judicial efficiency. See id. (citing Smith v. Marcantonio, 910 F.2d 500, 502-03 (8th Cir. 1990); Roberts v. Browning, 610 F.2d 528, 531 (8th Cir. 1979)). The summary judgment procedure is not a "disfavored procedural shortcut." Id.
Rather, it is "an integral part of the Federal Rules as a whole." Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986)). Summary judgment is appropriate against a party who fails to make a showing sufficient to establish that there is a genuine issue for trial about an element essential to that party's case, and on which that party will bear the burden of proof at trial. See Cunningham v. Kansas City Star Co., 995 F. Supp. 1010, 1014 (W.D.Mo. 1988) (citing Celotex, 477 U.S. at 324, 106 S.Ct. 2548).
II. Background
Based on the parties' pleadings, affidavits, and deposition testimony, the following facts are undisputed or, if disputed and plaintiff properly presented facts supporting her version of disputed facts, the disputed facts are presented in the light most favorable to plaintiff. See Fry v. Holmes Freight Lines, Inc., 72 F. Supp.2d 1074, 1076 (W.D.Mo. 1999) Cintas hired Plaintiff Terry Pedroza ("Pedroza") on July 22, 1998. On September 7, 1998, Cintas promoted Pedroza to work as a team leader in the pants hanging department. Team leader is a nonsupervisory position involving some direction and coordination of co-workers. Pedroza alleges that she was sexually harassed by a female co-worker, Pam Straw, from early 2000, until September 29, 2000. Straw worked at the same level as Pedroza as a team leader, but in the sorting department.
The sorting department is in charge of separating the company's products and sorting them into their designated shipping routes.
The record reveals that co-workers observed friction between Pedroza and Straw beginning in late 1999. Some stated it appeared Straw didn't like Pedroza. One overheard bickering and raised voices between them. Another described it as kind of butting heads or having some friction.
The earliest incident of harassment claimed by Pedroza occurred on or about May 15-18, 2000. Pedroza was showing pictures of her grandson to Straw. Straw tried to hold or grab Pedroza's hand. Pedroza pulled her hand away, told her to stop and Straw said, "You want me to kiss you, honey." Straw then kissed her on the cheek and stated, "You love it, honey." This was the first time Straw had tried to kiss her. Pedroza says she reported this incident to Russ Watkins, the plant manager at Cintas' Springfield facility and that Watkins responded that it "was her (Straw's) personality."
The next incident that Pedroza recalls occurred on June 8, 2000, when she asked Straw to get her line moved down to give Pedroza's team more room to hang their goods. Straw responded by kissing her own hand, rubbing it on her own buttocks and stating, "Kiss it, Terri. You love it." Pedroza did not report this incident to Cintas management, but did tell Straw that it was inappropriate and she was uncomfortable with it.
Robin Hildebrand, an employee who worked with Pedroza in the pants department, observed Straw kiss her hand and slap her buttocks to other employees, but took it as a joke.
Pedroza claims another incident of harassment occurred after May 18, 2000, but possibly before June 8, 2000, when Straw said, "Terri, you're awfully quiet today. Didn't you get a piece of ass last night?" Pedroza believes this was a time when she replied, "Go home to your husband," and Straw said she didn't have a husband and "I want you, honey."
Near the end of June or July 2000, Pedroza again asked Straw for help in moving a line of clothing. Straw came around to where Pedroza was standing and grabbed Pedroza's face with one hand. Pedroza jerked away. There was no kiss on this occasion. As Straw walked away she told Pedroza to kiss her ass. Pedroza reported this incident to her immediate supervisor, Garrett Anderson.
Pedroza recalls that sometime in late July or early August 2000, she saw that Straw was blowing kisses at her. Pedroza said, "Pam, don't do that. That is sexual harassment," and Straw allegedly responded, "Write me up. You love it, you know it. Just write me up." Thereafter, Pedroza testified in her deposition that she complained to Rhonda Braker, Cintas Human Resources Manager, stating, "Pam is out there blowing kisses at me and doing all these gestures to me, and it's not professional," and "I'm very uncomfortable with it." Braker responded that "the boys are already taking care of it." Pedroza secretly recorded this conversation. The transcript of the recording reflects a date of August 25, 2000, and the only reference to the complaint about Straw is, "She's blowing me kisses, she's doing the same little nit-pickin' that she did with Susan." The transcript does not contain any language similar to "the boys are taking care of it." Pedroza also met with Watkins to complain of Straw's behavior and use of offensive language. Watkins documented the meeting as having occurred on August 4, 2000, and prepared a record of communication, which Pedroza signed, and advised Pedroza to report any other instances of an employee doing anything inappropriate in the workplace. Watkins later met with Straw and warned her that "foul language" was inappropriate in the workplace. A record of communication was prepared and placed in Straw's personnel file.
On August 25, 2000, Straw approached Pedroza and asked her if she could borrow one of Pedroza's girls. Pedroza said they "were kind of behind" but agreed. Straw then grabbed Pedroza by her face, said, "love ya," kissed her on the side of her cheek and stated, "I love ya, honey." Pedroza told Garrett Anderson she had to leave because she was stressed out because Straw was harassing her and had just kissed her on the cheek. Pedroza told Anderson that she couldn't handle it anymore and left work crying and upset. After leaving work, Pedroza had a phone conversation with Cliff Smith, Cintas' general manager of its Springfield facility, and told him that "Pam was blowing me kisses and . . . all the acts that Pam was doing." Smith set up an appointment for her to come in and see him.
In an affidavit submitted by Straw and attached to Defendant's reply, Straw states that she does not recall ever telling Pedroza that "I love you" or "I love you, honey." In the event Straw did use these words, Straw states that it would have been as a joke in the context of thanking Pedroza for lending her one of her team members to help on a task.
On the Friday before August 30, 2000, Smith held a meeting with the team members and sought advice on how Cintas could keep Pedroza as an employee and how the company could resolve Pedroza's conflict with Straw. Pedroza's team members suggested that Straw and Pedroza should temporarily switch jobs, which the team members felt might allow Straw and Pedroza to better understand the other's job while also creating a better relationship among the two.
On August 29, 2000, Watkins, at the direction of Smith, investigated the kiss blowing allegations. He met with Straw to obtain her version of the events. Straw admitted blowing a kiss at Pedroza and making kissing sounds, but stated that she was joking and that she thought Pedroza understood it as a joke. Watkins responded by warning Straw to be very careful about her workplace conduct and that anything that can be perceived as harassment is not acceptable. Watkins also explained that blowing a kiss or making a kissing sound to a co-employee can be perceived as harassment. The meeting ended by Watkins having Straw sign a record of communication documenting the counseling session, and placing the record in Straw's personnel file.
The next day, August 30, 2000, Smith, Braker, and Watkins met with Pedroza in Smith's office and had a conversation, which Pedroza secretly tape recorded. In this meeting (according to the transcript of the tape recording), Pedroza's statements concerning Straw's conduct included:
Well, when you can ask her that to be done, you know, it just starts the childish stuff out there and it's like, you deal with it or you come up there nanny nanny nanny, we're not in school.
. . .
Well, it's just the thing that you gotta be back there to see the little nanny nanny nanny stuff, and, you know, I mean, it's even verbally said, you know, nanny nanny nanny. You know. We're all grown adults. We don't need to come and hear that.
. . .
But, I mean, it's just the continuous little nips and it's just, it's uncalled for.In response to a statement by Watkins about getting to some common ground between Pedroza and Straw, Pedroza stated:
Well, we've been there. We've been there and we've gathered with, you know, got with Rhonda and Russ and stuff, we get back out on the floor and just not anything, you know, `Pam could I please get line two or can you pull that one next,' you know And then her girls went and pulled somethin' else and here we are still pushing and shoving, I mean it's just back to the same thing again, instead of . . . what it is its communication and working together as a team. That's my big problem.
Pedroza did not mention Straw's use of foul language, blowing of kisses, telling Pedroza to kiss her buttocks, actual kisses, attempted kisses or any other actions which are now the source of Pedroza's sexual harassment complaint.
In response, Smith told Pedroza that he did not want to lose her as an employee. He also stated that he had investigated the incident and felt that she had taken Straw's conduct out of context. Regardless, Smith informed Pedroza that Straw had been counseled and that kind of action would not be tolerated. As a solution to Pedroza and Smith not getting along, Smith asked her whether or not she would be willing to temporarily assume Straw's role as the team leader in the sorting department in return for Straw assuming Pedroza's job as the team leader in the shirts and pants hanging department. Pedroza agreed to the switch. It should be noted that this temporary switch of duties did not involve a change of pay, benefits, working conditions, or hours of work nor was it perceived as any kind of a demotion.
Pedroza was on vacation on August 30, 2000, when she met with Cintas management. When Pedroza returned from vacation she made the switch in duties with Straw that had previously been agreed to as an attempt to help resolve their differences. During this time in September, 2000, Pedroza claims that the harassment continued in that "She [Straw] kept coming up at that area blowing me kisses, harassing me, telling me I was doing things wrong or differently or ___ to me, I felt they were all ganging up on me." Pedroza believes there were four or five incidents of kiss blowing during this period. She did not say anything to Straw, but did tell Garrett Anderson that Straw was blowing kisses at her. Anderson did not say anything in reply to her.
On September 29, 2000, Anderson assigned Pedroza to work the man sort position because he wanted her to learn the position. Later that day Pedroza complained to Anderson that a couple of the girls were telling her what to do. After this conversation, Pedroza started pulling clothes off the mending department line. Several of the Sort Team members working on Pedroza's team complained to Anderson that Pedroza was not pulling her weight on the job. Anderson then told Pedroza that he wanted her to return to the man sort position and learn that area. Pedroza confronted Anderson and asked why she needed to go up front and learn that position. She also threatened to resign, and claimed that she was not being supported by management because they were allowing co-workers to criticize her performance. Pedroza also complained that Straw began cussing at her, told her she wasn't doing things right, and that Straw used the "F" word continuously. Pedroza then asked for her pay check and left work early, indicating that she planned to resign. Before she left however, Anderson told her to reconsider her decision to resign over the weekend and requested her to come back on Monday.
On Monday, October 2, 2000, Pedroza told Anderson that she was being retaliated against, they weren't supporting her, she could not handle any more of Pam's cussing and gestures, she just couldn't work around Pam anymore, and it would be best that she just did not come back to work. Pedroza never came back to work after this conversation.
On November 13, 2000, Pedroza filed complaints with the Missouri Commission on Human Rights and the Equal Employment Opportunity Commission. The EEOC determined that it was unable to conclude that Pedroza had been discriminated or retaliated against. Upon receiving her right to sue letter, Pedroza timely filed this action in federal court for sexual harassment, retaliation, constructive discharge and religious discrimination.
Pedroza, in her brief opposing summary judgment, states that she has now abandoned her religious discrimination claim.
When Pedroza was hired by Cintas, the company furnished her with an employee handbook containing the following summary of its sexual harassment policy.
Cintas prohibits sexual harassment in the workplace. Instances of sexual harassment must be reported immediately. All complaints will be investigated and disciplinary action taken when necessary.
Hostile Work Environment — This more common type of sexual harassment involves verbal or physical conduct of a sexual nature that in the mind of a reasonable person creates an intimidating, hostile, or offensive work environment. Examples include: 1. unwanted touching 2. lewd language or jokes 3. inquiries into sexual behavior 4. displaying of sexually suggestive pictures or magazines.
Any incidents of sexual harassment should be reported immediately to the [employee's] supervisor, manager or leader. If this is inappropriate for any reason, the incident should be reported to the superior of the partner's supervisor, i.e., plant manager, general manager or any officer of the company.
This policy was explained to Straw shortly after her hire date on June 4, 1998. During Pedroza's tenure with Cintas, the company provided annual sexual harassment training to its team leaders, supervisors, and managers. Cintas' records reveal that both Straw and Pedroza received sexual harassment training on at least two separate occasions. On September 28, 2000, Pedroza and Straw were both present for a Cintas training program regarding sexual harassment which included a video on the subject and Pedroza claims it was discussed that Straw's blowing kisses at Pedroza could relate to sexual harassment. This was the day before Pedroza's last day on the job.
Following Pedroza's termination of her employment with Cintas, she was examined by Dr. Clifford Whipple, a psychologist retained by Pedroza in this case. Dr. Whipple conducted several tests to measure Pedroza's level of intelligence. The results indicated that Pedroza scored at the bottom percentiles of all the intelligence tests, that she is a concrete person who accepts a statement literally and has difficulty perceiving sarcasm. Dr. Whipple testified at his deposition that, based on his evaluation, Pedroza may misinterpret a kiss in a joking manner as something that had a sexual or passionate tone to it. Dr. Dale Halfaker, a psychologist retained by Cintas, performed similar tests and came to similar conclusions regarding Pedroza being marginally intelligent and having an inability to differentiate between sarcasm and concrete statements.
III. Discussion. A. Sex Discrimination Based on Hostile Work Environment
Title VII makes it unlawful for an employer to discriminate against an employee on the basis of, inter alia, the individual's sex. 42 U.S.C. § 2000e-2(a)(1). See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S.Ct. 998, 1001, 140 L.Ed.2d 201 (1998). Sex discrimination includes creating a hostile or abusive work environment if the harassment is sufficiently abusive to affect a "term, condition, or privilege" of employment. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405-06, 91 L.Ed.2d 49 (1986).
To make a prima facie claim of hostile work environment sexual harassment by a non-supervisory co-worker, the plaintiff employee must show:
(a) that 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.
Scusa v. Nestle U.S.A. Co., Inc., 181 F.3d 958 (8th Cir. 1999).
The first element is not in dispute. To show membership in a protected group, all that is required is that the plaintiff be a man or a woman. See Quick v. Donaldson Co., Inc. 90 F.3d 1372 (8th Cir. 1996) (citing Meritor, 477 U.S. at 66-67, 106 S.Ct. at 2405-06). Pedroza, as a female, is a member of a protected group. As to the second element, the record reveals that Pedroza was subjected to unwelcome harassment from Straw. Harrassing conduct that is "uninvited and offensive" is considered unwelcome. See id. (citing Burns v. McGregor Electronic Indus., Inc., 989 F.2d 959, 962 (8th Cir. 1993). Generally, determining whether certain conduct was unwelcome requires a trier of fact's weighing the credibility of witnesses.
See id.(citing Meritor, 577 U.S. at 68, 106 S.Ct. at 2406). Given Pedroza's statement that she objected to Straw's behavior and that the record reveals evidence of harassment, the Court cannot conclude that, as a matter of law, Pedroza has failed to meet the second element.
1. Discrimination "Because of Sex."
Finding that Pedroza has met the first two elements, the Court next addresses whether she has shown that Straw's harassment amounts to discrimination based on sex. In Oncale, the Supreme Court explained that this element of a hostile-environment claim serves as an obstacle to plaintiffs where the alleged harasser and the plaintiff, as in the instant case, are of the same sex. See Oncale, 523 U.S. at 80, 118 S.Ct. 998. Whereas conduct involving explicit or implicit proposals of sexual activity directed at a person of a different sex creates an inference that the proposals would not have been made to a person of the same sex, the same is not true in same-sex harassment cases. See id. at 81, 118 S.Ct. 998. Stated another way, in the case of same-sex workplace sexual harassment, no presumption exists that the harassment was because of sex. Instead, the same-sex plaintiff must demonstrate that the harassing conduct was not merely "tinged with offensive sexual connotations," but actually constituted discrimination because of sex. Id. at 79-80. 118 S.Ct. 998.
Conduct that constitutes sexual harassment includes sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. See id. (citing 29 C.F.R. § 1604.11(a). It is not necessary that the harassment be explicitly sexual in nature or that it have explicit sexual overtones. See id. (citing Stacks v. Southwestern Yellow Pages, Inc., 27 F.3d 1316, 1326 (8th Cir. 1994); Hall v. Gus Const. Co., Inc., 842 F.2d 1010, 1014 (8th Cir. 1988)). Because sexual harassment may occur in many forms, it may be evidenced by acts of verbal abuse. See id. (citing Burns, 989 F.2d at 964-65 (holding that sexual harassment can be based on vulgar and offensive epithets that were intensely degrading and insulting)).
Oncale established three ways for a plaintiff to prove that same-sex sexual behavior is harassment because of sex. First, the plaintiff may show that the alleged harasser (1) made explicit or implicit proposals of sexual activity, coupled with (2) "credible evidence" that the harasser was homosexual. It should be noted that merely using words that have a sexual content or connotation is insufficient to show the harassment was because of sex. Second, the plaintiff may point to evidence demonstrating the harassment is framed in "such sex-specific and derogatory terms . . . as to make it clear that the harasser is motivated by general hostility" toward members of the same gender in the workplace. . . ." See Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1377 (8th Cir. 1996) (citations omitted) (noting that sexual harassment may be evidenced by acts of verbal abuse); Burns, 989 F.2d at 964-65 (holding that sexual harassment can be based on vulgar and offensive epithets that were intensely degrading and insulting)). The third method of proof is through "direct comparative evidence about the how the alleged harasser treated members of both sexes in a mixed-sex workplace. See Oncale, 523 U.S. at 80-81, 118 S.Ct. 998.
Pedroza asserts at page 27 of her Suggestions in Opposition that Straw's conduct amounted to sexual propositions, thus invoking Oncale's first method of proof. According to Pedroza, Straw's comments to Pedroza that "she wanted her" and that "I love ya" coupled with trying to kiss her on several occasions and trying to hold her hand provides sufficient evidence to submit this question to a jury. Recent cases involving similar and much more egregious behavior, however, suggest the opposite. In English v. Pohonka of Chantilly, 190 F. Supp.2d 833 (E.D.Va. 2002), the court granted summary judgment to an employer in a same-sex hostile environment and constructive discharge case. In that case, Dutchburn, the alleged harasser, made numerous lewd statements to the plaintiff, including telling him that "he wanted to plant his salami between [the plaintiff's] cheeks." On another occasion he told the plaintiff that they "needed to bond" and pressed his genitals against the plaintiff's shoulders. After the plaintiff told Dutchburn to stop, Dutchburn replied by stating "I love you." Dutchburn also made statements asking plaintiff whether he would like to go for a walk so they could "smoke the peace pipes." The court found that Dutchburn's lewd comments and uninvited touchings did not create an inference that his conduct amounted to an "earnest sexual solicitation." Finding no "credible evidence" that Dutchburn was gay, the court held that the uncontroverted facts showed that no reasonable jury could find that the harassment was "because of sex."
Similar, but again more egregious, facts were confronted by the court in Davis v. Coastal Intern. Sec., Inc., 275 F.3d 1119 (D.C. Cir. 2002). In Davis, the court found that a same-sex harasser's grabbing of his crotch, utterance of a phrase describing oral sex, and vulgar kissing gestures directed towards the plaintiff did not amount to sexual propositions. See id. at 1125. The court, in accord with Oncale, noted that the conduct must be considered in light of the "surrounding circumstances," which consisted of a high level of animosity between the plaintiff and the alleged harasser. See id. The court also noted that the plaintiff produced no evidence that his harasser might have been homosexual. See id. Consequently, the court ruled that the harasser's obscene language and gestures were not premised on sex and ultimately affirmed the district court's decision granting summary judgment to the employer. See id.
The Court is mindful that in examining Straw's behavior, it must not ignore the teachings of Oncale that: "[t]he real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed." 523 U.S. at 81-82, 118 S.Ct. at 1003. In other words, context matters and, therefore, courts must look at the harassing behavior in light of the "surrounding circumstances." The case of Johnson v. Hondo, Inc. 125 F.3d 408 (7th Cir. 1997) is instructive in ensuring that the harassment is not considered in a vacuum. In Johnson, the Seventh Circuit held that a male employee's claim that a male co-worker, inspired by a long history of mutual dislike, tormented him with a series of sexually explicit comments accompanied by lewd gestures "failed to raise a triable issue as to whether [the harasser's] comments were because of the [the plaintiff's] gender" See id. at 412. The court reasoned that:
Most unfortunately, expressions such [as] . . . `kiss my ass' and [other obscene statements] are commonplace in certain circles, and more often than not, when these expressions are used . . ., their use has no connection whatsoever with the sexual acts to which they make reference — even when they are accompanied, as they sometimes were here, with a crotch-grabbing gesture. Ordinarily, they are simply expressions of animosity or juvenile provocation. . . .
Id.
In examining the uncontroverted evidence along with Pedroza's version of the events, the Court is unable to find any evidence that raises an inference that Straw's behavior amounted to a sexual proposition. To the contrary, the uncontroverted facts reveal that Straw's treatment of Pedroza was premised on a pre-existing dislike of her, in similar fashion as in Davis. For instance, several of Pedroza's co-workers testified in their respective depositions that Pedroza and Straw had conflicting personalities. Anna Mae Lindsay, a friend of and co-worker of Pedroza, testified in deposition that she observed Straw criticize Pedroza for not being a good team leader. Lindsey also heard Straw make remarks that she simply did not like Pedroza. These critical remarks, it should be noted, began prior to the time that Pedroza alleges that the alleged harassment began. The personality conflict is further illuminated by Pedroza's complaints to her supervisor Watkins in late July or early August 2000 that Straw's use of foul language offended her. Finally, Pedroza herself recognizes that there existed a personality conflict between her and Straw. While at the August 30, 2000 meeting with her supervisor Watkins, plant manager Smith, and human resource manager Braker, a meeting which Pedroza secretly tape recorded, Pedroza reported that her big problem with Straw was their poor communication and inability to work together as a team. At no time during this meeting did Pedroza mention Straw's attempts to kiss her, blowing of kisses, or any other complained of behavior initiated by Straw.
The lack of any evidence that Straw is a lesbian further demonstrates that Straw's actions did not constitute an actual sexual proposition. In her deposition, Pedroza testified that she has no facts causing her to believe that Straw is or has ever been a lesbian. No evidence has been proffered that Straw ever asked Pedroza for a date or any other type of a sexual relationship.
Furthermore, Straw's affidavit affirmatively states that she, as a mother of five children and partner in a long-term heterosexual relationship, is not a lesbian nor has she ever engaged in sexual relations with another woman. While Pedroza points to vague comments made by Straw such as "I want you, honey," "I love you" and "kiss my ass," such comments, as noted in Johnson, more often than not have no connection to the sexual acts to which they make reference, even when the comments are accompanied by lewd kissing gestures. A good example of this was Straw's remarks to Pedroza that "I love ya, honey" which were made immediately following Pedroza's agreement to allow members of her team provide additional help to Straw's team. Proper context indicates that these remarks were more likely than not a form of gratitude rather than a sexual solicitation.
The same is true regarding the "little nips" and "nanny, nanny, nanny" comments complained of by Pedroza. As to the "little nips" comment, the records reveals that the only uttering of this phrase was made by Pedroza during her August 30, 2000 meeting with Smith and Braker, one of the meetings secretly tape recorded by Pedroza. At that meeting, Pedroza stated that "it's just the continuance little nips and it's just, it's uncalled for." Pedroza never alleges that she was called "little nips" by Straw. It appears most likely this was a reference to incidents of conflict considered to be "nitpicky" by Pedroza. And when viewing the "nanny, nanny, nanny" comments in proper context, it is hard to imagine this as anything more than juvenile provocation.
Pedroza contends that Straw's actions alone are sufficient to create an inference as to her sexual orientation, and thus, the issue is a jury question. However, in the few cases that have inferred the harasser's homosexuality from the underlying facts, the conduct complained of went "far beyond the casual obscenity." Shepherd v. Slater Steels Corp., 168 F.3d 998, 1010 (7th Cir. 1999) (finding that a reasonable jury could find that the harasser was gay where he made numerous explicit comments concerning homosexual acts, exposed his genitals approximately four to five times weekly to the plaintiff, and "`rubbed himself' into an erection as he threatened to sexually assault the plaintiff.").
In sum, viewing the evidence in the light most favorable to Pedroza convinces the Court that it is insufficient to show that Straw's behavior was directed at her "because of sex." When viewing Straw's behavior in its proper context, Straw's conduct amounts to a rude form of teasing motivated by a mutual dislike rather an earnest sexual solicitation. Moreover, no "credible evidence exists" that Straw is a lesbian. Additionally, there is no evidence nor does Pedroza contend that Straw treated other women the same as Pedroza, thus ruling out any inferences that Straw displayed a general hostility to females in the workplace. See Oncale, 523 U.S. at 80-81, 118 S.Ct. 998. Finally, Oncale's third method of proof is not met as Pedroza has not offered or alleged any direct comparative evidence about Straw's treatment of men and woman. See id.
2. Severe and Pervasive
Plaintiff also has failed to demonstrate that the harassment was "permeated with discriminatory intimidation, ridicule, and insult," thus failing the fourth element of submitting a prima facie hostile environment claim. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (internal quotations omitted). "Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII's purview." Oncale, 523 U.S. at 81, 118 S.Ct. 998 (internal quotations omitted). By this language, the Supreme Court has set forth an objective and subjective component in hostile work environment cases: an environment that the plaintiff believes is abusive and an environment that a reasonable person would perceive as hostile. See Duncan v. General Motors Corp., 300 F.3d 928 (8th Cir. 2002). Determining whether or not the alleged harassment is severe and pervasive requires examining the totality of circumstances surrounding the discriminatory conduct. See id. at 934 (citations omitted). Factors include "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, 114 S.Ct. 17. Caution must be noted that Title VII is "not designed to purge the workplace of vulgarity." Id. (quoting Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir. 1995). Stated another way, Title VII is not a civility code, and thus, simple teasing, offhand comments, and non-serious isolated incidents are not severe and pervasive. See Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (citing Oncale, 523 U.S. at 81, 118 S.Ct. 998; see also Scusa v. Nestle USA Co., Inc., 181 F.3d 958 (8th Cir. 1999) (commenting that Title VII was not designed as a federal remedy for offensive language in the workplace).
It is clear from the record that Pedroza personally was offended by Straw's conduct, and thus, satisfies the subjective part of the test. The inquiry, however, must proceed as Straw's conduct must also be offensive to a reasonable person. Accordingly, the Court should examine all the actions complained of and ask whether, based on the controverted and uncontroverted facts, a jury could find that a reasonable person would perceive Straw's actions as hostile.
Although not totally supported by the statements of facts, Pedroza, in her suggestions in opposition to the motion for summary judgment, claims the following alleged events support her hostile environment claim (page 27 Plaintiff's Suggestions):
. . . kissed Plaintiff at least three times, put saliva on Plaintiff's check, grabbed her, rubbed her butt at her on a frequent basis, followed Plaintiff into her work area where she would not need to be for work, blew kisses at her on almost daily basis, and used sexual comments and profanity directed at the Plaintiff on a frequent basis for over 4 months.
Pam Straw even asked Plaintiff if she `got a piece of ass' the previous night.
These facts, however, are below the baseline of actionable conduct that the Eighth Circuit as well as other circuit courts, have found to create a hostile environment. For example, in Duncan, the Eighth Circuit held that a male supervisor's harassing behavior was not sufficiently severe and pervasive so as to subject the female plaintiff to a hostile working environment. 300 F.3d at 934-35. The supervisor's behavior involved him: requesting a sexual relationship from the plaintiff; touching her hand on several occasions; asking plaintiff to draw a picture of his planter that depicted a hole in the front of a man's pants in which protruded a cactus; displaying a pacifier shaped like a penis and a computer screen with a picture of a naked woman; displaying a poster depicting plaintiff as the "President and CEO of the Man Hater's Club of America" together with a statement that plaintiff must also be in control of sex; and asking plaintiff to draft the beliefs of the "He-Men Women Hater's Club." See id. at 933.
In finding the harassment insufficient to support a Title VII claim for hostile environment, the Duncan court cited to numerous cases that have rejected hostile work environment claims premised upon facts equally or more egregious than the conduct at issue here. See id. at 934-35 (citing Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 872-874 (5th Cir. 1999) (holding that several incidents over a two-year period, including the comment "your elbows are the same color as your nipples," another comment that plaintiff had big thighs, repeated touchings of plaintiff's arm, and attempts to look down the plaintiff's dress, did not constitute a prima facie hostile work environment claim), cert. denied, 528 U.S. 963, 120 S.Ct. 395, 145 L.Ed.2d (1999); Adusumilli v. City of Chicago, 164 F.3d 353, 357, 361-62 (7th Cir. 1998) (finding harassing conduct insufficient to support hostile environment claim when employee teased plaintiff, made sexual jokes aimed at her, told her not to wave at police officers "because people would think she was a prostitute," commented about low-necked tops, stared at her breasts, and touched her buttocks, finger, and arms on four occasions), cert denied, 528 U.S. 988, 120 S.Ct. 450, 145 L.Ed.2d 367 (1999); Black v. Zaring Homes, Inc., 104 F.3d 822, 823-24, 826 (6th Cir. 1997) (reversing jury verdict and holding behavior merely offensive and insufficient to support hostile environment claim when employee reached across plaintiff, stating "[n]othing I like more in the morning than sticky buns" while staring at her suggestively; suggested to plaintiff that parcel of land be named "Hootersville," "Titsville," or "Twin Peaks"; and asked "weren't you there Saturday night dancing on the tables?" while discussing property near a biker bar), cert. denied, 522 U.S. 865, 118 S.Ct. 172, 139 L.Ed.2d 114 (1997); Weiss v. Coca-Cola Bottling Co., 990 F.2d 333, 337 (7th Cir. 1993) (holding no sexual harassment when plaintiff's supervisor asked plaintiff for dates, asked about her personal life, called her a "dumb blond," put his hand on her shoulder several times, placed "I love you" signs at her work station, and attempted to kiss her twice at work and once in a bar)).
An instructive decision containing similar facts to the present case is Hartfield v. Pizza Inn, Inc., No. CIV. A. 02-0097, 2002 WL 31056595 (E.D.La. Sept. 13, 2002). In Hartfield, a female employee complained that a male co-worker harassed her over a six month period. According to the plaintiff, the co-worker kissed her once on the cheek while she was working and alleged that he would have kissed her lips if she had not turned her head. Other instances of harassment involved the co-worker's unwanted touchings of her buttocks three or four times; an attempt to hug and kiss the plaintiff in a cooler; blowing of kisses at the plaintiff; and statements that he liked the way the plaintiff walked. The court found that the co-worker's behavior was ill-mannered and vulgar, but concluded that, as a matter of law, the conduct was insufficiently severe or pervasive to create a hostile working environment.
The Eighth Circuit's decision in Duncan together with recent decisions from other jurisdictions illustrates the demanding standards set forth by the federal courts in making a prima facie hostile environment sexual harassment case. Moreover, these standards are in line with Oncale's mandate that Title VII is not a general civility code designed to purge all forms of vulgarity from the workplace. Therefore, in light of Duncan and other cases cited herein, the Court finds that Straw's behavior was insufficiently severe or pervasive to create a hostile working environment. Accordingly, summary judgment is granted in favor of Defendant Cintas on Pedroza's hostile work environment claim contained in Count I and Count II of her First Amended Complaint (Doc. #28).
B. Retaliation
Pedroza also asserts a claim for violation of the Missouri Human Rights Act, § 213.010, et seq., alleging that Cintas retaliated against her for complaining of Straw's harassing conduct and for constructive discharge. 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).
Pedroza's retaliation claim is not based on specific acts of retaliation by any supervisory employees. Instead, her retaliation claim is based upon hostility from her co-worker, Straw, which she asserts her supervisors ignored. Without getting into an analysis of the response of Cintas to Pedroza's complaints to management, the undisputed facts show that Cintas did not take any adverse employment action against Pedroza for reporting Straw's behavior. She suffered no diminution in her title, salary or benefits. Absent any proof of the requisite adverse employment action, Pedroza's retaliation claim also fails as a matter of law. See 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 355, 359 (8th Cir. 1997) (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). Therefore, summary judgment is granted in favor of Defendant Cintas on Pedroza's claim for retaliation contained in Count I and Count II of her First Amended Complaint (Doc. #28).
C. Constructive Discharge
The undisputed facts also show that Cintas did not constructively discharge Pedroza. To show "constructive discharge, a plaintiff must show more than just a Title VII violation by her employer." Breeding v. Arthur J. Gallagher and Co., 164 F.3d 1151, 1159 (8th Cir. 1999) (quoting Phillips v. Taco Bell Corp., 156 F.3d 884, 890 (8th Cir. 1998)). "A constructive discharge occurs when an employer renders the employee's working conditions intolerable, forcing the employee to quit." Id. (quoting Johnson v. Runyon, 137 F.3d 1081, 1083 (8th Cir.) (internal quotations omitted), cert. denied, 525 U.S. 916, 119 S.Ct. 264, 142 L.Ed.2d 217 (1998). "To constitute a constructive discharge, the employer must deliberately create intolerable working conditions with the intention of forcing the employee to quit and the employee must quit." Id. (quoting Summit v. S-B Power Tool, 121 F.3d 416, 421 (8th Cir. 1997) (internal quotations omitted), cert. denied, 523 U.S. 1004, 118 S.Ct. 1185, 140 L.Ed.2d 316 (1998). The intent element is satisfied by a demonstration that quitting was "a reasonably foreseeable consequence of the employer's discriminatory actions." Id. The employee has an obligation to act reasonably by not assuming the worst and not jumping to conclusions too quickly. Id. See also Howard v. Burns Bros., Inc., 149 F.3d 835, 841-42 (8th Cir. 1998) (discussing recent cases defining what type of conditions are intolerable for purposes of constructive discharge).
A constructive discharge arises only when a reasonable person would find the conditions of employment intolerable. See Tidwell v. Meyer's Bakeries, Inc., 93 F.3d 490, 494 (8th Cir. 1996) (citations omitted). In Tidwell, an employee who worked in an environment that was "tinged with discriminatory acts" was nevertheless not constructively discharged, because the acts were not so severe that a reasonable person would have found them intolerable. Id. at 497. By finding that the plaintiff was not constructively discharged despite being subjected to sexual harassment, the Tidwell court reinforced the principle that constructive discharge claims cannot simply be piggy-backed on sexual harassment claims.
Although Pedroza has submitted evidence showing that she was subjected to harassing conduct from her co-worker and that, despite her complaints, the conduct continued, this Court has found that the co-worker's behavior was not so severe and pervasive as to constitute a hostile working environment. As noted by the Fourth Circuit, "a feeling of . . . [having to endure] difficult or unpleasant working conditions are not so intolerable as to compel a reasonable person to resign." Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994). Furthermore, no evidence exists that Pedroza was demoted, denied a promotion, or suffered any adverse employment action by Cintas.
Accordingly, summary judgment is granted in favor of Defendant Cintas on Pedroza's claim for constructive discharge contained in Count I and Count II of her First Amended Complaint (Doc. #28).
D. Religious Discrimination
Cintas has also moved for summary judgment on Pedroza's claim of religious discrimination. This was based on Plaintiff's claim that Defendant failed to take Plaintiff's complaints seriously because Defendant felt she was too sensitive due to her Jehovah's Witness religious beliefs. In response to Defendant's motion for summary judgment on this claim, Pedroza states that she has abandoned this claim and offers no response to refute Cintas' arguments that no evidence exists showing that Cintas or any of its employees discriminated against Pedroza on the basis of her religion. In light of the absence of any such evidence coupled with Pedroza's desire to abandon this claim, summary judgment is granted on Pedroza's claim for religious discrimination contained in Count II of her First Amended Complaint (Doc. #28).
D. Punitive Damages
Pedroza's final claim is for punitive damages. Because the Court has granted summary judgment in favor of Cintas and against Pedroza on all of Pedroza's underlying claims as set forth above, there remains no claim upon which Pedroza could be awarded punitive damages. Therefore, summary judgment will is also granted to Cintas on Pedroza's claim for punitive damages sought under both Title VII and the MHRA.
IV. Conclusion
For the reasons given above, Defendant Cintas' Motion for Summary Judgment (Doc. #65) is granted. Specifically, Cintas is granted summary judgment in favor of Defendant Cintas and against Plaintiff Pedroza on all claims of sexual harassment, hostile work environment, retaliation, religious discrimination, constructive discharge and punitive damages as contained in Counts I and II in Plaintiff's First Amended Complaint (Doc. #28).
IT IS SO ORDERED.