By Marjorie Johnson, J.D.
While the supervisor’s alleged behavior was “certainly reprehensible and improper,” it did not meet the “high bar” set by Eighth Circuit precedent for conduct to be sufficiently severe or pervasive.
A female sales associate at a used car lot failed to convince the Eighth Circuit to revive her hostile work environment claim asserting her supervisor subjected her to unwelcome conduct by rubbing her shoulder on one occasion, twice commenting that he could “have” her if they were both single, remarking several times that he should never have hired a woman, and wondering aloud if he could make her cry. The appeals court affirmed summary judgment against her Title VII and state-law claims since, while the supervisor and employer “should both be embarrassed and ashamed” for how they treated her, the behavior simply did not meet its high threshold for severity or pervasiveness. Nor would the court revive her retaliation claim since she failed to exhaust administrative remedies as to it (Paskert v. Kemna-ASA Auto Plaza, Inc. dba Auto Smart of Spirit Lake, February 13, 2020, Grasz, S.).
Unwelcome conduct. During the employee’s five-month tenure at the used car dealership (from May to November), she was purportedly subjected to sex-based harassment by her male supervisor. She claimed—and a male coworker corroborated—that the supervisor liked to talk about his sexual conquests and once subjected her to unwelcome shoulder rubbing. He also purportedly told her that he could “have” her if they were not married to others, remarked that he “never should have hired a woman,” and wondered aloud if he could make her cry. The record also showed that he ridiculed and screamed at staff; referred to female customers using derogatory names; and threw objects in the office.
Demotion. The employee also claimed that the supervisor prevented her from completing her training because he would send her back inside to answer the phone whenever she tried to shadow him or her male coworker on the lot. In the fall, the dealership’s owner suggested that she should be terminated because she had not sold any cars in her four months on the job, but was earning the same amount as the male coworker who was doing all of the work. The supervisor instead proposed moving her to a sales support role with a different pay plan.
Terminated. Though she viewed the offer as a demotion, she accepted the changes. However, three days later she was discharged ostensibly for insubordination and “refus[ing] to discuss what was bothering her on Friday, November 6th.” In the discharge report, her supervisor also criticized her sales record and use of profanity at work. She subsequently filed a complaint with the Iowa Civil Rights Commission (ICRC) alleging a hostile work environment and this lawsuit followed.
“High bar” for HWE claim. Affirming dismissal of her hostile work environment claim, the appeals court found that the supervisor’s alleged behavior was “certainly reprehensible and improper,” but did not meet the “high bar” set by Eighth Circuit precedent for conduct to be sufficiently severe or pervasive to create an actionable HWE. In McMiller v. Metro, the court had outlined several cases illustrating conduct that was insufficient to meet this threshold, explaining that some conduct “well beyond the bounds of respectful and appropriate behavior” will nonetheless be insufficient to violate Title VII.
Here, while the supervisor and the dealership “should both be embarrassed and ashamed” for how they treated the employee, their behavior simply did not meet the high threshold. The employee only alleged one instance of unwelcome physical contact, one or two comments where he stated he could “have” her, and several statements about how he never should have hired a female and wanted to make her cry. All of this behavior was “inappropriate and should never be tolerated in the workplace,” but was not nearly as severe or pervasive as the behavior that had been deemed insufficient by the court in prior cases.
Failed to exhaust retaliation claim. The district court also properly dismissed her retaliation claim for failure to exhaust administrative remedies. Notably, she did not specifically allege retaliation in her administrative complaint, nor did she respond to a question that inquired about retaliation. That question asked if she had “previously complained to anyone within the organization or the ICRC or reported discrimination or participated as a witness” and believed she had “suffered an adverse action or been treated differently since you complained about discrimination.” The subpart to this question specifically asked, “If yes, how were you retaliated against and by whom?” But she left the entire question blank.
The Eighth Circuit rejected her contention that her retaliation claim could be reasonably inferred from her answers to other questions. In particular, she pointed to a narrative in which she described how her supervisor stated he should not have hired a woman, tried to make her cry, yelled and threw objects, required her to answer phones like a secretary, and prevented her from training. But she failed to describe how her termination or demotion was caused by her reporting harassment, complaining of sexual harassment, or participating in a harassment investigation.
Accordingly, she failed to exhaust her administrative remedies before suing.
No separate gender bias claim. Finally, the employee failed to advance a claim of sex discrimination distinct from a hostile work environment even though she used the phrase “discrimination based on sex” in her complaint. She never set out the prima facie elements for a sex discrimination claim, nor did she argue that her circumstances met such requirements. But even if she had properly pleaded a sex discrimination claim, she waived it on appeal since she failed to oppose summary judgment on those grounds.
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