Marcia A. Hocevar v. Purdue Frederick Co. ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-4075
___________
Marcia A. Hocevar, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Purdue Frederick Company; Timothy *
Amundsen, *
*
Defendants - Appellees. *
___________
Submitted: October 21, 1999
Filed: August 9, 2000
___________
Before BEAM, LAY and JOHN R. GIBSON, Circuit Judges.
___________
LAY, Circuit Judge, with whom Judge John R. Gibson joins in Part IIA.
This is an appeal brought by Marcia Hocevar (Hocevar) from the district court’s
grant of summary judgment in favor of Purdue Frederick Company (Purdue), her former
employer, in a sexual harassment and retaliation claim brought under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The district court found that the
plaintiff was a member of a protected class (a female) but that she failed as a matter of
law to demonstrate a genuine dispute of material fact on both of her claims. In addition
to denying her claim of retaliation, the court found that Hocevar had not shown a
hostile work environment because it concluded that the alleged harassment was neither
pervasive nor severe. For the reasons stated below, the majority of the court (Judges
Beam and Gibson) affirm the grant of summary judgment on the hostile work
environment claim; a different majority of the court (Judges Lay and Gibson) reverse
and remand for trial on Hocevar’s retaliation claim.
I. BACKGROUND
The record shows that Marcia Hocevar began working at Purdue in August 1988
as a pharmaceutical sales representative. While working for Purdue in Minnesota
between 1988 and 1992, Hocevar consistently out performed her then co-worker
Timothy Amundsen (Amundsen) and was often ranked in the top sales percentile
nationally. Hocevar was promoted three times in five years, the final promotion being
to the position of sales training manager at corporate headquarters in Norwich,
Connecticut. Hocevar’s bonuses reflect her good sales record, and her performance
was rated at the highest possible level.
In June 1994, Hocevar transferred to Minnesota due to her impending marriage
where she was placed under the supervision of Amundsen, the new district manager,
and took over the sales territory previously assigned to him.1 Despite Hocevar’s history
of top-notch performance evaluations, Amundsen rated Hocevar at the lowest possible
level in October and November 1994. Amundsen gave Hocevar an additional adverse
rating in February 1995.
In March 1995, Amundsen accused Hocevar of lying and making false sales
reports. A company investigation concluded no wrongdoing on Hocevar’s part.
Shortly thereafter, in July 1995, Amundsen again gave Hocevar the lowest possible
1
The district court dismissed the action against Amundsen. There is no appeal
from that order of dismissal.
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performance rating despite the fact that she demonstrated a sales growth of seven
percent. At some point, Purdue took away a portion of Hocevar’s sales territory – an
area including the world renown Mayo Clinic and LaCrosse, Wisconsin.2 This action
was taken by Amundsen despite the fact that Hocevar exceeded Amundsen’s own prior
sales record in the same territory and received bonuses for exceeding sales quota.
These areas remained unstaffed for three months following removal from Hocevar’s
territory.
On August 11, 1995, Amundsen recommended Hocevar for probation based on
her past year’s performance. Following an automobile accident, Hocevar took
disability leave from August 16, 1995, until September 15, 1995. Despite her absence,
Hocevar again met her sales quota and earned a bonus. Hocevar took additional
disability leave on October 21, 1995, and requested a part-time work schedule
accommodation. Amundsen denied her request. As a result, Hocevar was unable to
return to full-time work and remained on disability leave until her termination on June
7, 1996.
Following Hocevar’s return to Minnesota in 1994, Amundsen engaged in hostile
behavior in the workplace over a two-year period: he distributed sexually explicit
material at business meetings; he made threats of violence towards female staff
members; he constantly referred to women as “bitches,” “fucking bitches,” and “fat
fucking bitches,”3 he told stories of animal violence (e.g., placing a loaded gun in the
2
The timing of the reduction in Hocevar’s sales territory is not clear from the
record. Hocevar’s affidavit indicates the reduction occurred in the summer of 1995.
Hocevar’s EEOC complaint, however, indicates the event occurred on September 5,
1995. The district court found the event occurred prior to her August 16, 1995, injury
and disability leave. See Dist. Ct. Mem. and Order at 13.
3
In setting forth the facts of this case, we explicitly recite the use of foul and
offensive language. Unfortunately, such a recitation is necessary to accurately depict
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mouth of a dog that wandered into his yard); he told jokes at meetings that were
derogatory towards women and contained profanity; he introduced a new employee as
the “fucking new guy;” and claimed that new pharmaceutical products were so exciting
a physician would be “creaming his jeans” to get them. Hocevar also testified that
Amundsen exhausted a portion of a staff meeting by playing an audiotape of the Jerky
Boys which contained obscene, vulgar, and sexually explicit “prank” phone calls to
businesses on topics such as genital warts.
Hocevar also testified that in April 1992, Purdue Regional Manager Paul
Kasprzycki (Kasprzycki) had made sexual advances toward her at a bi-regional meeting
in Denver, Colorado. She testified that she was afraid to report complaints to
Kasprzycki (Amundsen’s supervisor) due to incidents of Kasprzycki making
unwelcome sexual advances towards her, including pulling her toward him resulting in
“full body contact” during what began as a consensual “fast” dance that led into a
“slow” dance. She testified that Kasprzycki made “very clear his wish to have a sexual
relationship” with her and made suggestive comments about being available for a
sexual relationship. Hocevar testified that Kasprzycki’s advances were even more
explicit when no witnesses were around. According to Hocevar, this was not an
isolated incident, as Kasprzycki had previously made “unwelcome and uninvited”
sexual advances toward her following a Purdue national meeting in New Orleans in
January 1992. Then, in front of nearly 150 people Kasprzycki made statements at a bi-
regional meeting in April 1995 implying a female manager had a sexual device in her
hand and, in a separate incident, that he would be engaging in a sexual liaison in his
hotel room later that day with three female sales representatives that had just performed
a singing skit. Additionally, she describes an incident at a national meeting in Texas
the language used in order to provide a more precise sense of the work environment
that existed at Purdue. Women in any work environment will be totally bewildered by
the suggestion of Judge Beam that these terms are not sexual in content or demeaning
to women.
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in 1993 involving two other Purdue District Managers, Dan Mackavoy and Dick
Silverman. Hocevar stated that the district managers talked throughout her
presentation; afterwards, she approached them about their “rude” behavior, to which
Mackavoy responded: “We were talking about what great legs you have.”
In yet another incident, also following a Purdue bi-regional meeting, Hocevar and
six male and female co-workers were discussing Susan Faludi’s book Backlash: The
Undeclared War Against American Women (discussing public reaction to successful
working women). During this conversation, a male employee called Hocevar a “bitch”
and the then new district manager, Kelly Bartlett, became “very angry” and “exploded”
stating: “You women, since when are women always right and men are always wrong?
If your women’s movement had its way, every woman would be working and our
children would be being raised in communes.” The incident was so upsetting that
Kathy Kiekhaefer (Kiekhaefer) and a co-worker were crying and were “scared” and
concerned at the prospect of working for a manager with such a feeling of hostility
toward working women.
In October 1995, Hocevar complained to Dennis Merlo, a Purdue managerial
employee, about Amundsen’s inappropriate behavior, foul language, and stories of
animal violence. On December 20, 1995, Hocevar’s attorney notified Purdue of her
intention to file a complaint against Purdue with the Minnesota Department of Human
Rights alleging sexual harassment. The letter also voiced concerns about the “ongoing
sexual harassment” of Hocevar and other women at Purdue. In January 1996, another
female employee, Kiekhaefer, filed a claim of sexual harassment with Purdue, which
prompted Purdue to investigate the complaints.
Danielle Nelson (Nelson), Purdue’s Vice President of Equal Employment
Opportunity Compliance and Human Resources Administration, conducted an
investigation into the complaints of sexual harassment. Nelson found that Amundsen’s
extensive use of profanity and off-color jokes violated company policy and was
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“unprofessional behavior.” Nelson concluded, however, that no sexual harassment
occurred. Despite Nelson’s determination that no sexual harassment occurred, Purdue
directed Amundsen – under threat of termination – to take a three month unpaid leave
of absence during which he would receive counseling and management training.
Thereafter, Nelson and James Lang (Lang), Purdue’s National Sales Manager, traveled
to Amundsen’s district, informed the employees that Amundsen’s language was
inappropriate and unacceptable, and trained employees on Purdue sexual harassment
complaint procedures. After the Nelson/Lang visit, Hocevar’s co-worker Mary Beck-
Johnson testified that workplace conduct “absolutely changed” – “personal” matters
were no longer discussed and inappropriate language was no longer used at meetings.
In mid-April 1996, Amundsen returned from the unpaid leave of absence. On
May 2, 1996, Hocevar filed a charge of sexual harassment with the Equal Employment
Opportunity Commission (EEOC) and Purdue terminated her a little over a month later
by letter dated June 7, 1996. Hocevar thereafter filed her claim alleging retaliatory
discharge on July 10, 1996. Hocevar now appeals the district court’s grant of summary
judgment in favor of Purdue.
II. DISCUSSION
A. Retaliation
The district court found that Hocevar made a prima facie case of retaliation
following her claim of sexual harassment with the EEOC. It found that (1) Hocevar
had engaged in a statutorily protected activity;4 (2) an adverse employment action
4
An employer may not discriminate against an employee “because he has
opposed any practice made an unlawful employment practice by this subchapter, or
because he has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a).
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occurred; and (3) the adverse employment action was casually linked to the protected
activity.5 Nonetheless, the district court found that Purdue articulated a
nondiscriminatory reason for termination, namely, the company’s need to restaff her
vacant position.6 The district court furthermore found that Hocevar had not shown
evidence that Purdue’s reason was pretextual.
Based on our de novo review of the record, we reverse the grant of summary
judgment on Hocevar’s retaliation claim. The overall record establishes the plaintiff
has demonstrated sufficient evidence, if believed, that the reason given for her
discharge simply masked the true reason for the discharge – retaliation for filing an
EEOC charge. See Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978).7 The
record demonstrates several factors from which a trier of fact might infer that retaliation
was the true reason for her discharge:
5
The defendant seeks to refute that any adverse employment had taken place.
Without getting into evidentiary detail, it is undisputed that Hocevar claims she lost her
job for engaging in protected activity. As the district court points out, Hocevar’s
discharge followed the protected activity so closely in time so as to create an inference
of retaliating motive, citing Kiel v. Select Artificials, Inc., 142 F.3d 1077, 1080 (8th
Cir. 1998), reh’g granted and opinion vacated (Jun. 5, 1998).
6
In its letter terminating Hocevar, Purdue advised that it would make every effort
to locate a suitable territory for her when she was certified as able to return to work.
Purdue suggests this precatory offer of reinstatement constitutes sufficient immunity
from a claim of retaliation. Whether this offer to mitigate the harshness of discharge
was sincere is a question of fact for the jury. Whatever intended, it cannot serve to
provide immunity from liability if Purdue retaliated against a person who engaged in
a statutory protected right.
7
The Supreme Court observed, “when all legitimate reasons for rejecting an
applicant have been eliminated as possible reasons for the employer’s actions, it is
more likely than not the employer, who we generally assume acts only with some
reason, based his decision on an impermissible consideration such as [age].” Furnco
Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978).
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(1) the close proximity in time between Hocevar’s discharge and Amundsen’s
return to work after his three-month suspension without pay for sexual harassment as
reported by Hocevar and others;
(2) the close proximity of Hocevar’s filing the EEOC claim of sexual harassment
and her discharge;
(3) that long prior to the company’s reason for Hocevar’s discharge, the Mayo
Clinic account was taken away from the plaintiff and that account was unserviced for
over three months thus depriving Hocevar of substantial sales commission;
(4) that Hocevar was targeted by Amundsen and Kasprzycki for preprobation in
July 1995;
(5) that defendant had earlier refused to accommodate plaintiff’s work restriction
following a car accident, when defendant’s own employment expert testified that such
accommodation could have occurred;
(6) that Amundsen had required Hocevar to call him every day with a special
report about her sales calls; no other employee was required to do so;
(7) that Kathy Kiekhaefer testified that employees who complained about their
manager “eventually were gone from the organization altogether.”
Hocevar’s allegations, if proven true, evidence a long history of unfavorable
actions by Amundsen against her virtually from the moment she was placed under his
supervision. During the period in which Amundsen gave her the lowest possible
performance ratings and placed her on probation, Hocevar consistently exceeded
Purdue sales quotas and received bonuses. Hocevar’s sales performance exceeded
quota notwithstanding the fact that Amundsen removed a lucrative portion of her sales
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territory and despite the offensive work environment and heightened scrutiny by
Amundsen. After Hocevar notified Purdue of Amundsen’s offensive behavior,
Amundsen was forced to take an unpaid leave of absence. Less than a month after his
return, Hocevar filed a sexual harassment claim and shortly thereafter was terminated.
Giving Hocevar the benefit of all favorable inferences on summary judgment, we
hold there exists sufficient inference that the company’s sudden need to restaff the
Mayo Clinic territory was indeed questionable and that Hocevar’s filing of her
complaint with the EEOC was the motivating act that caused Amundsen to discharge
her.
It is not for this court, nor for the district court, to weigh the evidence and decide
whether Purdue’s proffered reason was true. As long as there exists conflicting
evidence upon which reasonable men and women might differ, we find sufficient
evidence of pretext to survive the motion of summary judgment. Under the
circumstances, we find the district court erred in granting summary judgment on
Hocevar’s retaliation claim. We, therefore, reverse the grant of summary judgment on
Hocevar’s claim of retaliation for the exercise of protected activity.
LAY, J. dissenting.
I dissent from the grant of summary judgment on the hostile work environment
claim.
Title VII makes it unlawful for an employer “to fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because
of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-
2(a)(1). Title VII protects “more than ‘terms’ and ‘conditions’ in the narrow
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contractual sense.” Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998) (quoting
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998)) (internal quotation
omitted). The Act evinces Congress’ intention to define discrimination in the broadest
possible terms, and neither enumerates specific discriminatory practices nor defines the
breadth of actionable illegal activities. See Hall v. Gus Constr. Co., 842 F.2d 1010,
1014 (8th Cir. 1988). In interpreting the scope of activities prohibited under Title VII,
the Supreme Court instructs that hostile work environment harassment occurs when
“the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult’ that
is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment
and create an abusive working environment.’” Harris v. Forklift Sys., Inc., 510 U.S.
17, 21 (1993) (citations omitted and emphasis added).
In a sexual harassment suit, in order to establish a claim of hostile work
environment, a plaintiff must show (1) membership in a protected group; (2) the
occurrence of unwelcome harassment; (3) a causal nexus between the harassment and
membership in the protected group; and (4) that the harassment affected a term,
condition or privilege of employment. See Carter v. Chrysler Corp., 173 F.3d 693, 700
(8th Cir. 1999). If the harassment is perpetrated by a supervisor and the employee
suffers a tangible employment action (e.g., demotion, undesirable reassignment, or
discharge), the employer is vicariously liable for the supervisor’s sexual harassment of
the employee. See Faragher, 524 U.S. at 807-08; Burlington Indus., Inc. v. Ellerth, 524
U.S. 742, 765 (1998). Important to my analysis is the Supreme Court’s recent
statement that sexually harassing behavior perpetrated by a supervisor has a “greater
power to alter the environment” than similar actions of mere co-workers. Faragher,
524 U.S. at 805.
The inquiry at summary judgment is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-
52 (1986). As I previously indicated, in considering a motion for summary judgment,
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the district court should not weigh the evidence, make credibility determinations, or
attempt to determine the truth of the matter, id. at 249, but instead should give all
reasonable inferences to the non-moving party. Id. at 255. To survive summary
judgment, Hocevar need only submit “‘sufficient evidence supporting a material factual
dispute that would require resolution by a trier of fact.’” Austin v. Minnesota Mining
& Mfg. Co., 193 F.3d 992, 994 (8th Cir. 1999), (quoting Hase v. Missouri Div. of
Employment Sec., 972 F.2d 893, 895 (8th Cir.1992)). Summary judgment is
inappropriate where “reasonable minds could differ as to the import of the evidence.”
Anderson, 477 U.S. at 250. It is under this framework that we should review the
district court’s grant of summary judgment to Purdue on Hocevar’s claims of hostile
work environment.8
Hocevar asserts that during her tenure at Purdue, she endured a constant litany
of vulgar and inappropriate behavior. As previously set forth, the behavior was
perpetrated in large part by Amundsen, her direct supervisor, and, in small part, by two
other Purdue managers.
As the district court found, there is no dispute that Hocevar, a female, is a
member of a protected group. See Carter, 173 F.3d at 700 (female plaintiff member
of protected group). Our inquiry, therefore, should turn to the second element of a
hostile work environment claim: whether she was subject to unwelcome harassment.
8
Under summary judgment, the burden is actually on the moving party to show
the absence of a genuine dispute of material fact. See Adickes v. S. H. Kress & Co.,
398 U.S. 144, 157 (1970). I think it clear that the employer has not carried that burden.
Consideration of this matter is further guided by the principle that summary
judgment should seldom be granted in employment discrimination cases since the
claims frequently rely on inferences. See Breeding v. Arthur J. Gallagher and Co., 164
F.3d 1151, 1156 (8th Cir. 1999) (citing Lynn v. Deaconess Med. Ctr.-West Campus,
160 F.3d 484, 486-87 (8th Cir. 1998)).
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Conduct is “unwelcome” where it is “uninvited and offensive.” Bales v. Wal-Mart
Stores, Inc., 143 F.3d 1103, 1108 (8th Cir. 1998); see Moylan v. Maries County, 792
F.2d 746, 749 (8th Cir. 1986) (conduct is unwelcome where employee neither solicited
it nor invited it, and regarded it as undesirable or offensive).
That the conduct in question is unwelcome is “[t]he gravamen of any sexual
harassment claim.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986). In
determining whether conduct is “unwelcome,” we should consider whether the plaintiff
indicated, by her conduct, that the alleged harassment was unwelcome. Quick v.
Donaldson Co., 90 F.3d 1372, 1378 (8th Cir. 1996) (citing Meritor, 477 U.S. at 68).
This is a fact question for the jury and turns largely on credibility determinations. See
Meritor, 477 U.S. at 68 (question of whether conduct is unwelcome presents difficult
proof problems turning largely on credibility determinations committed to trier of fact);
see also Quick, 90 F.3d at 1378.
The district court focused its inquiry on whether the incidents of harassment
were “offensive” and concluded that they failed to constitute an offensive environment
due to their infrequent use.9 Under review of the record, I find sufficient evidence and
inference therefrom that there was an ongoing use of sexual vulgarity directed at the
plaintiff as well as all women employees in general. Based on the evidence set forth
below, the plaintiff has certainly met the threshold of proof of pervasiveness as a matter
9
Before the district court, Purdue argued that the court should not consider
alleged harassment that occurred prior to July 7, 1995, that is, 300 days prior to
Hocevar’s May 2, 1996, complaint to the EEOC. Hocevar argued the court should
consider incidents prior to July 7, 1995, under a continuing violation theory, which
permits consideration of allegedly discriminatory events outside the 300-day limitations
period. See Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1302 (8th Cir. 1997).
Although not expressly adopting the continuing violation theory, the district court
implicitly agreed with Hocevar and considered behavior beginning in August 1994.
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of law. The ultimate determination as to whether the harassment was pervasive must
be made by the jury.10
The record in the present case shows Amundsen’s use of sexual vulgarity
occurred throughout the workplace, on sales calls and during meetings. Hocevar’s
female co-worker, Kiekhaefer, indicates Amundsen repeatedly referred to women as
“bitches,” used the “F” word in virtually every other sentence, called clients “fuckers”
and “assholes,” and routinely referred to female nurses and female physicians as
“fucking bitches.” Similar testimony is in the record from another female employee of
Amundsen’s, Mary Beck-Johnson, indicating Amundsen “routinely” used the terms
“bitch” and “fuck” in meetings. Further, Hocevar testified that sexually explicit
behavior occurred at meetings chaired by Amundsen, which Amundsen either condoned
or failed to stop, and that sexually suggestive comments were made by two Purdue
managers, one of whom subjected Hocevar to unwelcome physical contact during a
consensual dance, which made Hocevar “extremely uncomfortable.” Under the record
presented, these vulgar attacks cannot be simply regarded as “off-hand” or isolated
incidents.
10
The opinion by Judge Beam takes a different approach, suggesting that
Hocevar cannot prove the behavior was unwelcome because she had on occasion used
similar language, relying on Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 966 (8th Cir.
1999). In Scusa, the hostile work environment plaintiff alleged, among other incidents,
one occurrence of foul language used by a co-worker during a meeting discussing her
sexual harassment claim. See Scusa, 181 F.3d at 963 n.3. On the question of whether
the plaintiff found the offensive language “unwelcome,” this court observed that the
record contained undisputed evidence that the plaintiff herself used the “F” word along
with male-specific pejoratives, told off-color jokes at work, and teased co-workers.
Id. at 966. This court affirmed the district court’s finding that Scusa failed to create a
genuine issue of material fact to preclude summary judgment on the question of
whether the alleged behavior was unwelcome. In contrast to Scusa, the sexual
vulgarities were used not once, but “constantly” by Hocevar’s supervisor.
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The defendant, as does Judge Beam, relies on the fact that Hocevar herself had
used the words “bitch” and “fuck” on occasion in the workplace. On this basis, it is
argued that the words are not unwelcome by Hocevar. Hocevar, however, qualifies her
use of these words by saying that they were not used in the same context that
Amundsen had used them. There is a world of difference between the use of the
infrequent swear word in the workplace, not actionable when not directed to a specific
gender, and direct words demeaning to women in general. While Hocevar’s infrequent
use of foul language may indeed, when presented to a jury, diminish her claim that the
behavior of Amundsen and others was “unwelcome,” it in no way bars her claim as a
matter of law. I am unaware of any case that precludes a plaintiff from arguing that the
employer’s constant use of sexually charged language and off-color jokes is unwelcome
merely because the plaintiff at times engaged in swearing. Such a reading is
inconsistent with the mandate that courts consider the totality of the circumstances of
a case. Faragher, 524 U.S. at 787. Further, Judge Beam’s analysis utterly fails to
address Amundsen’s threats of violence, his dissemination of sexually explicit material
at meetings, his condonation of sexually graphic behavior at meetings, and the behavior
of other Purdue managers, all apparently because Hocevar admitted to the infrequent
use of foul language. The record further shows that Hocevar’s swearing was not
directed as a demeaning word of harassment at any person or group of people. It is one
thing that an employee use vulgarity in his or her general communication; it is quite
another when the vulgarity is directed at a specific social group who reasonably could
find it to be demeaning to their own self-being.
Even if one concedes that use of foul language by an employee can diminish a
claim that the harassment was unwelcome and subjectively offensive, evidence of
Hocevar’s reaction could still support a finding that Amundsen’s behavior was
unwelcome. See Burns v. McGregor Elec. Indus., Inc., 989 F.2d 959, 964 (8th Cir.
1993) (agreeing with district court that plaintiff having posed nude for a nationally
distributed magazine does not lead inevitably to conclusion that workplace harassment
was welcome); Bales, 143 F.3d at 1108-09 (plaintiff’s reaction to harassment sufficient
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to support jury finding that behavior was unwelcome); see also Caviness v. Nucor-
Yamato Steel Co., 105 F.3d 1216, 1223 (8th Cir.1997) (“[I]t stretches credulity to
conceive that a reasonable jury might have thought [plaintiffs] welcomed from their
co-workers the conduct detailed in the evidence at trial.”).
Hocevar testified that she suffered fear, depression, anxiety and self-doubt as a
result of Amundsen’s behavior, including his degrading and demeaning criticism of her
work performance. If she was not offended by this, as I think any reasonable person
would be, it is difficult to explain that both she and her co-worker were under the
continuing care of a psychologist and that Hocevar was treated with Prozac for anxiety
and depression. Hocevar’s complaint to Purdue manager Dennis Merlo is also
“reaction” evidence revealing that Hocevar viewed Amundsen’s sexually derogatory
language unwelcome. Further, the record contains evidence that Hocevar, Kiekhaefer,
and a third female co-worker were “scared” and upset to the point of tears following
the incident surrounding the discussion of Susan Faludi’s book Backlash: The
Undeclared War Against American Women. Giving her the benefit of all favorable
inferences, this conduct could be found by a jury to support a finding that the
harassment was unwelcome and that it was subjectively offensive.11 Precedent
supports such a finding. See Harris, 510 U.S. at 22 (recognizing that Title VII bars
discriminatory conduct that affects a reasonable person’s psychological well-being);
Kopp v. Samaritan Health Sys., Inc., 13 F.3d 264, 269 (8th Cir. 1993) (psychological
harm is a relevant factor in hostile work environment analysis); cf. Jenson v. Eveleth
Taconite Co., 130 F.3d 1287, 1304 (8th Cir. 1997) (recognizing that a callous pattern
11
The Supreme Court directs that “the objective severity of harassment should
be judged from the perspective of a reasonable person in the plaintiff’s position,
considering ‘all the circumstances.’” Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 81 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).
Because Purdue does not appear to suggest that the harassment was not objectively
offensive, this issue is not addressed.
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and practice of degrading sexual harassment in the workplace can destroy self-esteem
of women exposed to it).
The third element of a claim of hostile work environment requires evidence of
a causal nexus between the harassment suffered and Hocevar’s membership in a
protected group. See Carter, 173 F.3d at 700. At the summary judgment stage, a
plaintiff may prove harassment is “based on sex” by presenting evidence that members
of one sex were the primary targets of harassment. Quick, 90 F.3d at 1378 (evidence
that members of one sex were primary targets of harassment sufficient to show conduct
was gender based for purposes of summary judgment) (quoting Kopp, 13 F.3d at 269-
70). Whether harassing conduct is based on sex is determined by inquiring “whether
‘members of one sex are exposed to disadvantageous terms or conditions of
employment to which members of the other sex are not exposed.’” Quick, 90 F.3d at
1379 (quoting Harris, 510 U.S. at 25) (Ginsburg, J., concurring).
This court has recently reaffirmed that gender-based insults, such as the term
“bitch,” may give rise to an inference of discrimination based on sex, see Carter, 173
F.3d at 700, and has rejected the notion that an employee must be propositioned,
touched offensively, or harassed by sexual innuendo in order to have been sexually
harassed. See Quick, 90 F.3d at 1379 (citing Burns, 989 F.2d at 964). Additionally,
we have held that intimidation and hostility toward women in general can result from
conduct other than explicit sexual advances.12 See Hall, 842 F.2d at 1014. Moreover,
it is well settled that verbal abuse, violence, or physical aggression may constitute
sexual harassment, see Quick, 90 F.3d at 1379 (citing Burns, 989 F.2d at 964-65), and
12
Indeed, Justice Scalia recently pointed out that harassment does not have to be
motivated by sexual desire, but can be motivated by hostility to members of a particular
sex. See Oncale, 523 U.S. at 80 (“A trier of fact might reasonably find such [same-sex]
discrimination, for example, if a female victim is harassed in such sex-specific and
derogatory terms by another woman as to make it clear that the harasser is motivated
by general hostility to the presence of women in the workplace.”).
-16-
that such need not be explicitly sexual in nature. See Carter, 173 F.3d at 700-01 (“All
instances of harassment need not be stamped with signs of overt discrimination to be
relevant under Title VII if they are part of a course of conduct which is tied to evidence
of discriminatory animus.”); see also, Williams v. General Motors Corp., 187 F.3d 553,
565-66 (6th Cir. 1999) (gender-specific epithets such as “slut” and “fucking women”
can support an inference that the comments were motivated by gender).
On the question of causal nexus, the district court essentially reasoned that
because the offensive behavior occurred in front of both men and women and was not
specifically directed at Hocevar, it failed to evidence the harasser’s thoughts toward a
particular gender. Similarly, Judge Beam holds that because Amundsen
indiscriminately used the crude adjective “fucking” when referring to both men and
women, the term somehow loses its sexual connotation and cannot be used to show the
language was causally linked to gender. He finds that “[t]his is not a case where
Amundsen used the term bitch as a synonym for female-specific characteristics of
which he did not approve.” This reasoning is inconsistent with this court’s decision in
Kopp where we found sufficient evidence of actionable harassment based on sex to
survive summary judgment where women were more frequently exposed to harassment
than men, despite that abuse was rarely couched in terms of sex or gender and was used
in front of both men and women. Kopp, 13 F.3d at 269-70. Judge Beam’s opinion
further fails to appreciate the inherently sexual nature of the profane term,13 and also
fails to address Amundsen’s chronic characterization of women as “bitches,” “fucking
bitches,” and “fat fucking bitches.”
13
The American Heritage Dictionary, New College Edition, defines “fuck” as:
“1. Vulgar. To have sexual intercourse with. 2. Vulgar Slang. To deal with in an
aggressive, unjust, or spiteful manner.” p. 531.
-17-
Contrary to Judge Beam’s conclusion,14 Hocevar presents the hypothetical case
we considered in Kriss where a supervisor’s constant use of the word “bitch” was
directed only at women. It is apparent that Amundsen used the term “bitch” throughout
the workplace in a pejorative manner to describe women who were rude to him or
14
In support of the proposition that “bitch” is not indicia of a misogynist attitude,
Judge Beam cites Kriss v. Sprint Communications Co., 58 F.3d 1276, 1281 (8th Cir.
1995). In Kriss, we reversed the district court’s finding of gender discrimination
following a bench trial. Kriss’ supervisor had once stated that a woman in the office
was a “bitch.” This court considered the supervisor’s use of that term and wrote:
Specifically, the word “bitch,” it seems to us, is not an indication of a
general misogynist attitude. Rather, it is a crude, gender-specific
vulgarity, which in this case was directed toward only one woman, rather
than women in general. (We note the existence of many vulgar epithets
that are used only of men that, we believe, would not be indicative of
animus against males.) Hence, we do not find Miller’s use of this term to
be particularly probative of gender discrimination. Perhaps if the
evidence were that Miller regularly used the word “bitch” as a synonym
for “complain,” the plaintiff’s case would be stronger, because that would
furnish some evidence that Miller associated complaining with females.
Id. (emphasis added).
-18-
behaved in some way that displeased him.15 This term also has a distinctively negative
connotation when used to describe women.16
Giving Hocevar the benefit of all reasonable inferences, there is little doubt that
the extensive use of the gender-specific pejorative “bitch,” coupled with the sexually
explicit and offensive term “fuck,” could support a finding that the harassment was
based on sex. To hold otherwise is an unprecedented endorsement of the sexually
insulting behavior presented. See Burns, 989 F.2d at 965 (vulgar and offensive
epithets, including but not limited to “bitch,” are “‘widely recognized as not only
improper but as intensely degrading, deriving their power to wound not only from their
meaning but also from the disgust and violence they express phonetically.’”) (citations
and internal quotations omitted).
The Supreme Court recently reaffirmed the “severe or pervasive” test articulated
in Harris, defining a sexually objectionable environment to mean “one that a reasonable
person would find hostile or abusive, and one that the victim in fact did perceive to be
so.” Faragher, 524 U.S. at 787; see Ellerth, 524 U.S. at 754. Once there is evidence
of improper conduct and subjective offense, the question of whether the conduct rose
to a persuasive level of abuse is largely one for the jury. See Howard v. Burns Bros.,
Inc., 149 F.3d 835, 840 (8th Cir. 1998); see also O’Shea v. Yellow Tech. Servs., Inc.,
15
Hocevar testified through deposition about an incident in which a female
physician backed she and Amundsen out a door, refusing to allow them to visit another
physician. Hocevar testified that Amundsen became “very angry,” was “ranting and
raving” and said “I wish I was in the military again or, like, a cop, because I’d like her
to fear me. I should go up there and slam her one.” Throughout the day, Amundsen
repeatedly referred to the female physician as a “fat fucking bitch” and a “fucking
bitch.” This single incident gives a clear understanding of the hostile context in which
Amundsen used these offensive terms.
16
The American Heritage Dictionary, New College Edition, defines “bitch” as:
“Slang. A spiteful or lewd woman.” p. 135.
-19-
185 F.3d 1093, 1098 (10th Cir. 1999) (“the severity and pervasiveness evaluation is
particularly unsuited for summary judgment because it is ‘quintessentially a question
of fact’”) (quoting Beardsley v. Webb, 30 F.3d 524, 530 (4th Cir. 1994)).
In determining whether a work environment is sufficiently severe or pervasive
to alter the terms or conditions of employment, we must look at the totality of the
circumstances, including factors such as “‘frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work
performance.’” Faragher, 524 U.S. at 787-88 (quoting Harris, 510 U.S. at 23).
Evidence of psychological harm to the plaintiff is also a relevant factor, Harris, 510
U.S. at 23, as is evidence of harassment of plaintiff’s co-workers. See Howard, 149
F.3d at 838 (harassment of plaintiff’s co-workers relevant to show pervasiveness of
hostile environment).
Under this framework, we should consider the fourth element of a claim of
hostile work environment harassment, namely, whether the harassment Hocevar
suffered affected a term, condition or privilege of her employment. This court has held
that in the context of Title VII “conditions of employment” may be altered by
harassment if the employee is discouraged from remaining on the job, Smith v. St.
Louis Univ., 109 F.3d 1261, 1264 (8th Cir. 1997), or the harassment caused economic
injury, affected the employee’s psychological well-being, detracted from job
performance, or kept the employee from advancing in her career. Quick, 90 F.3d at
1378. Title VII is violated when a “workplace is permeated with ‘discriminatory
intimidation, ridicule and insult’ that is ‘sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment,’”
where if the environment is objectively and subjectively perceived as hostile or abusive.
Id. (quoting Harris, 510 U.S. at 21) (emphasis added).
-20-
On the question of whether Hocevar showed sufficient evidence that the
harassment was “severe or pervasive” to alter a term or condition of employment, the
district court found the alleged incidents were neither sufficiently pervasive nor directed
at Hocevar.17 In reaching this conclusion, the district court concluded that playing the
Jerky Boys tape was not offensive conduct; that Amundsen’s stories of animal violence
are not severe enough to constitute a hostile environment; that Amundsen’s referral to
a female doctor as a “fucking bitch” and introduction of a new employee as a “fucking
new guy” at most offended the person the comments were directed at, which was not
Hocevar. On this point, Judge Beam recognizes that the use of foul language may have
been pervasive. Because he concludes that the offensive language is not based on sex,
however, he sets this evidence aside, then proceeds to consider whether the remaining
facts of Hocevar’s case are sufficiently severe or pervasive. This approach errs
because it fails to consider the totality of the circumstances, see Harris, 510 U.S. at 23(all evidence concerning abusiveness of a plaintiff’s working condition is relevant), and
imposes a per se test requiring harassment be “directed at” plaintiff to be actionable.
This approach has been rejected by an appellate court in Vinson v. Taylor, 753 F.2d
141, 146 (D.C. Cir. 1985), which expressly held that “[e]ven a woman who was never
herself the object of harassment might have a Title VII claim if she were forced to work
in an atmosphere in which such harassment was pervasive.” Id. (emphasis added). The
Vinson court reached this conclusion in light of EEOC Decision No. 71-909, 3 Fair
17
The defendant asserts this was not a basis for the district court’s summary
judgment grant. To the contrary, the court stated:
Because none of the alleged harassment was directed at Hocevar, and
because the incidents were infrequent, the allegations fail to be
sufficiently pervasive and severe enough to alter the conditions of her
employment and create an abusive working environment. Thus,
Defendant’s motion for summary judgment on Count 1 is granted.
Dist. Ct. Mem. and Order at 9.
-21-
Empl. Prac. Cas. (BNA) at 269-70 (1970) in which the EEOC found reasonable cause
to find a Title VII violation where a white employee was discharged for befriending
African American co-workers.18
Title VII provides employees the “right to work in an environment free from
discriminatory intimidation, ridicule, and insult.” Meritor, 477 U.S. at 65 (emphasis
added). The EEOC Guidelines defining sexual harassment do not limit sexual
harassment to only those actions that are directed at the plaintiff. See 29 C.F.R.
§ 1604.11 (1999) (“Unwelcome sexual advances, requests for sexual favors, and other
verbal or physical conduct of a sexual nature constitute sexual harassment when . . .
such conduct has the purpose or effect of unreasonably interfering with an individual’s
work performance or creating an intimidating, hostile, or offensive working
environment.”) (emphasis added).
I find no case that dictates, as Judge Beam suggests, that only behavior directed
at the plaintiff, such as sexual advances, may support a claim of hostile work
environment sexual harassment. Cf. Breeding, 164 F.3d at 1159 (considering
18
The EEOC stated that an employer violates Title VII by maintaining a work
environment in which racial insults are countenanced. It stated that Title VII requires
an employer:
maintain a working atmosphere free of racial intimidation or insult.
Failure to take steps reasonably calculated to maintain such an
atmosphere violates the Act. . . . That the racial insults were not directed
to [white] Charging Party, but to his fellow employees, renders the act no
less a violation. Indeed, Charting Party was so offended by the epithet
and the attitude underlying its use that he determined to resign his
employment. That Charging Party was “aggrieved” in fact and as a
matter of law is well settled.
EEOC Decision No. 71-909, 3 Fair Empl. Prac. Cas. (BNA) at 269-70 (1970).
-22-
supervisor’s fondling of genitals in view of various employees, including plaintiff, and
inappropriate comments made in front of men and women); Howard, 149 F.3d at 838(considering harassment of employees other than plaintiff relevant to show
pervasiveness of hostile environment); Kopp, 13 F.3d at 270 (reversing grant of
summary judgment where male physician used gender-specific foul language in front
of numerous employees, both male and female, only one incident of which was directed
at plaintiff); Jenson v. Eveleth Taconite Co., 824 F. Supp. 847 (D. Minn. 1993) (class
plaintiffs prevailed on hostile work environment claim where much of derogatory and
insulting language used by men was directed at women in general). The fact that the
bulk of the harassing behavior occurred in Hocevar’s workplace in her presence yet
was directed at all women present does not, as a matter of law, preclude a finding of
a hostile work environment. This is particularly true where the harassment occurred
at the hands of Hocevar’s direct supervisor, in light of the Supreme Court’s recent
statement that harassing behavior perpetrated by a supervisor has a “greater power to
alter the environment” than similar behavior of mere co-workers. Faragher, 524 U.S.
at 805.
It is inconceivable at the summary judgment stage to suggest that the language
used by Timothy Amundsen, Hocevar’s supervisor, coupled with the behavior of two
Purdue managers, is insufficient as a matter of law to support a claim of hostile work
environment harassment under Title VII. Justice Scalia’s recent observation is
appropriate here, “[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.” Oncale, 523 U.S. at 81-82.
I disagree with Judge Beam who perceives this to be a case of isolated or
sporadic incidents of “mere offensive utterances” in the workplace. Assuming
Hocevar’s allegations as true at this early stage of summary judgment, the record
reveals a clear pattern of pervasive offensive behavior tinged with gender animus.
-23-
Hocevar provides evidence that she was physically afraid of Amundsen, particularly
after an incident in which he punched a fellow employee, and that she found his
demeaning behavior toward women so humiliating that she sought psychiatric treatment
and medication. The allegations, if found true by a jury, are sufficient to permit a
finding that the cumulative effect of Amundsen’s conduct, along with that of other
Purdue managers, was sufficiently severe or pervasive to create a hostile work
environment based on sexual harassment.
I therefore dissent from the affirmance granting summary judgment for hostile
work environment in violation of Title VII.
BEAM, Circuit Judge, with whom Judge John R. Gibson joins in the result reached in
Part IIA.
Marcia Hocevar appeals the district court's19 grant of summary judgment in favor
of Purdue Frederick Company (Purdue) and Timothy Amundsen, resulting in the
dismissal of her Title VII claims of hostile work environment and retaliation.20 The
19
The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
20
Hocevar also brought claims of quid pro quo harassment in violation of Title
VII, and state law claims of intentional infliction of emotional distress, breach of
contract, and wrongful discharge. The district court dismissed Amundsen as a party.
The district court also dismissed the quid pro quo claim on summary judgment. After
dismissal of the Title VII claims, the district court declined to exercise supplemental
jurisdiction over the state law claims. At oral argument, Hocevar's counsel seemed to
imply that Hocevar did not wish to pursue an appeal of the dismissal of her quid pro
quo claim. Regardless, we affirm the district court's well-reasoned opinion with regard
to the dismissal of the quid pro quo allegation. Hocevar does not appeal the dismissal
of Amundsen as a party or the district court's decision to not exercise supplemental
jurisdiction over the state law claims.
-24-
district court found that Hocevar had not established a prima facie case of hostile work
environment and that she had not demonstrated a retaliation claim.
I. BACKGROUND
I relate the relevant facts in the light most favorable to Hocevar.21 Hocevar
worked as a sales representative for Purdue. During Hocevar's employment, her
supervisor, Timothy Amundsen, constantly used the words "bitch," "fuck, " and
"asshole," and sometimes used combinations of these words. Aside from her claims
of constant offensive language, Hocevar also asserts four specific instances of
inappropriate conduct by Amundsen. First, Amundsen called a female client who
treated him rudely a "fat fucking bitch." Second, Amundsen called a new male
employee a "fucking new guy" throughout a business meeting. Third, at a business
meeting, Amundsen played a tape of the Jerky Boys, a set of crude, so-called
comedians whose routine often includes offensive language. Fourth, Amundsen said
that Purdue's clients would "cream their jeans" when they found out about a new
product that Purdue had developed.
Hocevar cited four other incidents of sexual harassment involving other company
officials. First, in the spring of 1992, while having drinks, several company employees
engaged in a heated argument about Susan Faludi's book Backlash. During that
argument, a company official expressed negative feelings about the feminist movement
21
We review the district court's grant of summary judgment de novo, and will
affirm if the evidence, viewed in the light most favorable to Hocevar, shows that there
is no genuine issue of material fact and that Purdue is entitled to judgment as a matter
of law. See Austin v. Minnesota Mining and Mfg. Co., 193 F.3d 992, 994 (8th Cir.
1999) (standard of review).
-25-
and another company official called Hocevar a "bitch."22 Second, in January of 1993,
another company official made sexual advances toward her and pulled her close to have
full-body contact during a dance at a company gathering. Third, at a company meeting
in the spring of 1993, two other company officials talked during a presentation that
Hocevar was giving. At the end of the presentation, Hocevar confronted them about
their rude behavior and one of the men told her that they had been talking about "what
great legs" Hocevar had. Fourth, in April of 1995, after a skit performed by three
female employees at a company gathering, a company official23 suggested to the room
of 150 people that he would be having a sexual liaison with the three women later that
evening. During this same gathering, the company official also made a comment that
suggested a female employee had a sexual device in her hand.
In August of 1995, Hocevar was injured in a car accident in which she received
injuries that kept her off work for several weeks. On September 18, 1995, Hocevar
returned to work. However, she was only able to work for a little more than a month
before having to take another absence because of continuing pain from injuries
sustained in the accident. On December 15, 1995, Purdue sent a letter to Hocevar in
which the company expressed concern about her continued absence. Five days later,
Hocevar's attorney responded with a letter that outlined Hocevar's complaints about
Amundsen's conduct. On May 2, 1996, Hocevar filed a complaint with the EEOC.
About a month after the complaint was filed, Purdue terminated Hocevar.
22
The company official who called Hocevar a "bitch" later called to apologize for
his comment.
23
This was the same company official who danced with Hocevar two years
earlier.
-26-
II. DISCUSSION
A. Hostile Work Environment
To succeed on a claim of hostile work environment created by her supervisor,
Hocevar has to prove the elements of such a case. These elements are: (1) that she is
a member of a protected group; (2) that she was subject to unwelcome sexual
harassment; (3) that the harassment was based on sex; and (4) that the harassment
affected a term, condition, or privilege of employment. See Phillips v. Taco Bell Corp.,
156 F.3d 884, 888 (8th Cir. 1998). Purdue has an affirmative defense to liability or
damages when no tangible employment action is taken if: (a) Purdue exercised
reasonable care to prevent and correct promptly any sexually harassing behavior; and
(b) Hocevar unreasonably failed to take advantage of any preventive or corrective
opportunities provided by Purdue or to avoid harm otherwise. See Faragher v. City of
Boca Raton, 524 U.S. 775, 807 (1998). Hocevar is a member of a protected group.
However, Hocevar has failed to establish that the alleged behavior was unwelcome, the
discrimination was based on sex, or that the harassment affected a term, condition, or
privilege of employment.24
Hocevar has not demonstrated that Amundsen's use of offensive language was
unwelcome. A plaintiff must indicate by her conduct that the alleged harassment was
unwelcome. See Quick v. Donaldson Co., 90 F.3d 1372, 1378 (8th Cir. 1996). A
plaintiff cannot create a genuine issue of material fact with regard to unwelcome
behavior when she engages in the conduct complained about. See Scusa v. Nestle
U.S.A. Co., 181 F.3d 958, 966 (8th Cir. 1999). Hocevar's own testimony indicates that
24
Because Hocevar has failed to prove the elements of her claim, we need not
decide the availability of or extent of an affirmative defense.
-27-
Amundsen's use of offensive language was not unwelcome because she used the
offensive language herself. Hocevar admitted that she also called the new co-worker
the "fucking new guy" at the business meeting. She further admitted that she used the
words "bitch" and "fuck" around both Amundsen and other Purdue employees. I find
that these actions on the part of Hocevar vitiate her contention that the mere use of
these words was unwelcome.
Hocevar also failed to establish that the discrimination was based on sex.
Harassing conduct constitutes discrimination based on sex when 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). Hocevar failed to demonstrate that the language complained
about was based on sex. Offensive language was used to describe both men and
women. While Amundsen described a female client who had treated him rudely as a
"fat fucking bitch," he also referred to a new male employee as a "fucking new guy."
Offensive language was used in front of both men and women at company meetings and
the Jerky Boys tapes were played in front of both men and women. The use of foul
language in front of both men and women is not discrimination based on sex. See id.
at 358; see also Scusa, 181 F.3d at 965.
Hocevar claims that Amundsen's use of the term "bitch" itself shows a
discriminatory attitude toward females. Gender-based insults may create an inference
that discrimination was based on sex. See Carter v. Chrysler Corp., 173 F.3d 693, 700
(8th Cir. 1999). However, mere use of the word "bitch," without other evidence of sex
discrimination, is not particularly probative of a general misogynist attitude. See Kriss
v. Sprint Communications Co., 58 F.3d 1276, 1281 (8th Cir. 1995).
In this case, Hocevar has presented no additional evidence demonstrating that
Amundsen's use of the word "bitch" connotes a misogynist attitude. This is not a case
where Amundsen used the term bitch as a synonym for female-specific characteristics
-28-
of which he did not approve. See id. at 1281 (noting that evidence where supervisor
used word "bitch" as synonym for "complain" would provide stronger evidence of sex
harassment because that would demonstrate that supervisor associated complaining
with females). Neither is this a case where Amundsen blamed Hocevar's sexuality for
his use of the word "bitch." Carter, 173 F.3d at 701 (holding that use of sexual epithets
is evidence of sexual harassment when co-employee claims he used sexual epithets
because plaintiff dressed provocatively and put "her ass up in our faces"). Nor is this
a case in which Amundsen engaged in a litany of obscene name calling against
Hocevar. See Burns v. McGregor Elec. Indus. Inc., 989 F.2d 959, 964 (8th Cir. 1993)
(finding discrimination based on sex when male co-worker called female plaintiff a
"bitch," "asshole," "slut," and "cunt"). Because Hocevar has failed to present any
additional evidence to bolster her contention that Amundsen's pervasive use of the term
"bitch" shows his misogynist attitude, I find that Hocevar cannot demonstrate the
harassment was based on sex.
Finally, Hocevar cannot show that the harassment was sufficiently severe or
pervasive so as to alter a term, condition, or privilege of employment. See Taco Bell,
156 F.3d at 888. "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 v. Sundowner
Offshore Servs. Inc., 523 U.S. 75, 81 (1998). Factors to consider when determining
whether sexual harassment is sufficiently severe or pervasive 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 v. Forklift Sys. Inc., 510 U.S. 17, 23 (1993).
More than a few isolated instances are required. See Kimzey v. Wal-Mart Stores, Inc.,
107 F.3d 568, 573 (8th Cir. 1997). While the use of foul language may have been
pervasive, I have already concluded that it was neither unwelcome nor based on sex.
-29-
This leaves Hocevar with four events that might constitute unwelcome behavior
based on sex: (1) the Backlash incident; (2) the "great legs" incident; (3) the dancing
incident; and (4) the skit incident. I will assume that all of these incidents could
constitute unwelcome behavior based on sex. However, these incidents were clearly
not pervasive because they occurred over at least a three-year period. In addition, a
few inappropriate comments and an unwanted slow dance do not amount to particularly
severe conduct that was threatening or humiliating.
I have little doubt that Amundsen's behavior was boorish and unprofessional.
But, Title VII is not a general civility code. See Faragher, 524 U.S. at 788. The simple
fact is that the cases on which Hocevar relies involved far, far more evidence than
Hocevar has presented. See Rorie v. United Parcel Serv., 151 F.3d 757 (8th Cir. 1998)
(reversing summary judgment against plaintiff where supervisor patted female
employee on back, brushed up against her, told her she "smelled good," always "came-
on" to her, and asked her about co-worker's penis size); Howard v. Burns Bros. Inc.,
149 F.3d 835 (8th Cir. 1998) (affirming jury verdict where co-employee always used
sexual innuendos, told plaintiff she had nice legs, brushed her buttocks, told jokes
involving lewd gestures, and touched the buttocks of and talked "nasty" to other female
employees); Hall v. Gus Constr. Co., 842 F.2d 1010 (8th Cir. 1988) (upholding
judgment when plaintiffs' male co-workers made repeated requests for sex and touched
plaintiffs' breasts and thighs). While I sympathize with Hocevar's having to endure
Amundsen's conduct, her assertions fall far short of proof of a hostile work
environment.
B. Retaliation
To establish a prima facie retaliation case, Hocevar must prove that: (1) she
engaged in protected activity; (2) Purdue took adverse action against her; and (3) there
is a causal connection between the two. See Scott v. County of Ramsey, 180 F.3d 913,
917 (8th Cir. 1999). If Hocevar establishes a prima facie case, a presumption of
-30-
retaliation arises, and the burden then falls on Purdue to advance a legitimate reason
for the adverse employment action. See id. If Purdue advances a legitimate reason, the
presumption drops out and Hocevar has the burden of demonstrating intentional
retaliation. See id. If there is no direct proof of retaliation, as here, a claimant may,
under some circumstances, advance indirect proof by evidence that the so-called
legitimate reason is merely a pretext for unlawful retaliatory conduct. See id. I find
that Hocevar established a prima facie case of retaliation. However, I also find that
Purdue advanced a legitimate reason for Hocevar's termination and that Hocevar
presented no evidence of pretext.
Hocevar engaged in protected activity when she lodged a complaint with the
EEOC on May 2, 1996. Purdue then took an adverse employment action against
Hocevar by terminating her on June 7, 1996.25 Finally, she established an inference of
a causal connection because her termination closely followed the filing of her EEOC
complaint and also closely followed Amundsen's return from a three-month suspension
received, in part, because of Hocevar's complaints to Purdue officials. See Smith v.
Riceland Foods, Inc., 151 F.3d 813, 819-20 (8th Cir. 1998) (causal connection
established by circumstantial evidence, including close proximity of time between
plaintiff's engagement in protected activity and the adverse employment action).
However, Purdue presented a legitimate reason for Hocevar's termination. In its
termination letter, Purdue expressly noted that Hocevar was dismissed because of the
need to re-staff her territory due to her lengthy absence. Hocevar does not dispute her
absence from work for more than seven months, and I have little doubt that Purdue has
25
Hocevar received poor performance evaluations in late-1994 and early-1995,
and she had two major accounts removed from her sales territory in June of 1995.
However, these are not adverse employment actions for the purpose of her retaliation
claim because these events occurred well before Hocevar filed her complaint with the
EEOC, the event which, according to Hocevar, triggered the retaliatory conduct. I also
note that these events lend no aid to Hocevar's hostile work environment claim.
-31-
a legitimate need to have its sales territories covered. Thus, I find it was legitimate for
Purdue to terminate Hocevar in order to re-staff her vacant sales territory.
Hocevar argues that the legitimate reason advanced by Purdue is a pretext for
retaliation because: (1) Purdue failed to re-staff another important sales territory for
three months and (2) a similarly situated employee who did not complain to the EEOC
was not terminated by Purdue. As an initial matter, it does not appear that Hocevar
made these arguments to the district court. See Womack v. City of Bellefontaine
Neighbors, 193 F.3d 1028, 1032 (8th Cir. 1999) (declining to address arguments first
advanced on appeal). However, even assuming that these arguments were advanced
below, she has not provided evidence of pretext.
The fact that Purdue left another territory unstaffed for three months does not
amount to pretext. Perhaps if Purdue had terminated Hocevar after three months, this
would be somewhat persuasive. However, Hocevar's territory was left unstaffed for
seven months–more than double the amount of time that Hocevar claims another
territory was left unstaffed. Because of the significant difference in the amount of time
that Hocevar's territory remained unstaffed, Purdue's failure to re-staff another territory
for three months provides no evidence of pretext.
Hocevar's contention about an allegedly similarly situated employee also fails.
Hocevar presented evidence that Purdue did not terminate another sales representative
who also expressed concern about Amundsen's conduct but who did not file an EEOC
complaint. Where the only evidence of pretext is disparate treatment when compared
to another employee, a plaintiff must show that the other employee was similarly
situated in all relevant aspects. See Scott, 180 F.3d at 917. In this case, the other sales
representative and Hocevar were not similarly situated in all relevant aspects because
the other sales representative was never absent from work. Thus, Purdue's retention
of the other sales representative provides no support for Hocevar's allegations of
pretext.
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III. CONCLUSION
For the foregoing reasons, I would affirm the district court's dismissal of the
hostile work environment claim. I would also affirm the district court's decision on the
retaliation claim.
JOHN R. GIBSON, Circuit Judge, concurring specially in affirmance of grant of
summary judgment on hostile work environment claim.
I concur separately in the decision to affirm judgment against Hocevar on her
hostile environment claim. I do not concur in Judge Beam's opinion, because I believe
it engages in fact finding, see supra at 5-6, and an unnecessary semantic dissection of
the language in question. I recognize that our decision in Kriss v. Sprint
Communications Co., 58 F.3d 1276, 1281 (8th Cir. 1995), stated that "the word 'bitch'
. . . is not an indication of a general misogynist attitude," but I do not read Kriss as
establishing a test as to whether this word is inherently of a sexually harassing nature.
It is beyond question that the repetitive use of the word in this case was demeaning to
females, and the discipline which Purdue Frederick imposed on Amundsen, who used
the word, shows that the company recognized the utterance was improper.
Even unquestionably offensive words do not necessarily make a hostile work
environment, without considering the context. See Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 80 (1998) (use of words having sexual content or
connotations not necessarily discrimination because of sex). I have examined the
whole record and conclude that the facts taken in the light most favorable to Hocevar
do not add up to a hostile work environment case.
At the outset, it is necessary to focus on the key facts. I believe that the only
conduct on the record that might be substantial enough to alter a term, condition, or
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privilege of employment, see Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993),
is Amundsen's use of sexual vulgarities. The other allegations about Amundsen's
conduct, such as his involvement in a bar fight and his statements to employees at sales
meetings that if sales did not improve, he was "going to kill you" or "kill your dog," do
not appear to be gender-related. See Oncale, 523 U.S. at 80 (to be actionable,
harassment must be discrimination because of sex). Hocevar's complaints about people
other than Amundsen are based on incidents that were simply too few and far between
to make a hostile environment.
Hocevar alleges that Amundsen chronically used foul language, specifically the
words "fuck" and "bitch." In a letter dated December 20, 1995, Hocevar's counsel
notified Purdue Frederick that Amundsen had engaged in ongoing sexual harassment
against Hocevar. In January 1996 Purdue Frederick investigated the complaint. The
investigation revealed that the members of the Viking District interviewed had "all
participated in the use of profanity and, from time to time, off-color jokes. And the
general consensus was that they carried it too far." In particular, the investigator
concluded that Hocevar herself had participated in the profanity and improper jokes.
Hocevar admitted at her deposition in this case that she used the same offensive
language around Amundsen and other sales representatives. A Purdue personnel
representative traveled to the Viking District in February to inform the employees there
that the firm expected a high level of professionalism and that the investigation revealed
that "perhaps there had been some deterioration in that professional standard" with the
use of profanity and jokes. Amundsen was put on a three-month leave and required to
undergo counseling and training. This discipline resulted in an improvement in
Amundsen's language, as well as that of the other employees.
Hocevar complains most specifically of an incident in September 1994, at Dr.
Kubics's office, in which Amundsen became enraged at being treated disrespectfully
by a female doctor. Amundsen repeatedly referred to the doctor as a "fat fucking
bitch," and talked about how he would like to "slam her one" and make her fear him.
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In deciding when inappropriate conduct rises to the level of a hostile
environment that changes a term or condition of employment, courts must look at all
the circumstances. "These may 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 (emphasis added). In this regard, it is important
that the conduct complained of consists only of "offensive utterances" of a type
Hocevar herself engaged in at work, and that to the extent the gender-based utterances
were threatening or abusive, they were not aimed at Hocevar, but at the female doctor,
who was not a Purdue employee.
"We have considered harassment of employees other than the plaintiff to be
relevant to show pervasiveness of the hostile environment." Howard v. Burns Bros.,
Inc., 149 F.3d 835, 838 (8th Cir. 1998) (emphasis added). However, in the cases in our
circuit where we have considered conduct directed at others in upholding sexual
harassment claims, that conduct augmented evidence of harassment directed at the
plaintiff, see, e.g., id. (evidence of harassment of others augmented evidence of
physical contact of plaintiff and chronic innuendos); Hall v. Gus Constr. Co., 842 F.2d
1010, 1015 (8th Cir. 1988) (each plaintiff endured abuse). Abuse directed at a third
party is part of the picture, but it is less significant than abuse directed at the plaintiff.
See Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1144-45 (7th Cir. 1997) ("Second
hand harassment" not as great an invasion as harassment directed at plaintiff); Black
v. Zaring Homes, Inc., 104 F.3d 822, 826 (6th Cir. 1997) (fact that most comments not
directed at plaintiff contributes to conclusion of insufficiency of evidence). But see
Leibovitz v. New York City Transit Auth., 4 F. Supp. 2d 144, 150-53 (E.D.N.Y. 1998)
(upholding hostile environment verdict based entirely on harassment of others). Here,
the conduct was directed at someone who was not a Purdue Frederick employee, and
who was not even present to hear the hostile remarks. Therefore, even considering the
evidence of Amundsen's reaction to the female doctor, Hocevar did not start out with
a strong case. The standards for establishing a hostile environment are set high so that
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Title VII "does not become a 'general civility code.'" Faragher v. City of Boca Raton,
524 U.S. 775, 788 (1998) (quoting Oncale, 523 U.S. at 80).
But Hocevar's claim truly struck the shoals when she admitted she used the sort
of language she now complains of. In Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 967
(8th Cir. 1999), we held that a plaintiff could not show others' workplace conduct was
subjectively offensive when she did the same thing herself. "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 . . . ." Id. at 967. Accord Gleason, 118
F.3d at 1146.
For these reasons, I concur in affirming the summary judgment entered against
Hocevar on her hostile environment claim.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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