181 F.3d 958 (8th Cir. 1999), 98-2866, Scusa v. Nestle United States A. Co.

Docket Nº:98-2866
Citation:181 F.3d 958
Party Name:TAMMY S. SCUSA, APPELLANT, v. NESTLE U.S. A. COMPANY, INC., DOING BUSINESS AS FRISKIES PETCARE CO., INC., APPELLEE.
Case Date:June 23, 1999
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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181 F.3d 958 (8th Cir. 1999)

TAMMY S. SCUSA, APPELLANT,

v.

NESTLE U.S. A. COMPANY, INC., DOING BUSINESS AS FRISKIES PETCARE CO., INC., APPELLEE.

No. 98-2866

United States Court of Appeals, Eighth Circuit

June 23, 1999

Submitted: January 20, 1999

Appeal from the United States District Court for the District of Nebraska

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[Copyrighted Material Omitted]

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Before McMILLIAN, Beam and Loken, Circuit Judges.

McMILLIAN, Circuit Judge.

Tammy S. Scusa appeals from a final order entered in the United States District Court 1 for the District of Nebraska granting summary judgment in favor of appellee,

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Nestle U.S.A. Co., d/b/a Friskies Petcare Co. (Friskies or the company), and dismissing her claims for sexual harassment and retaliation allegedly committed by her non-supervisory co-workers in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Scusa v. Nestle U.S.A. Co., No. 4: 97CV3134 (D. Neb. July 7, 1998) (memorandum and order).

For reversal, appellant argues that the district court erred in granting summary judgment in favor of her employer because there were disputed issues of material fact for a jury to consider on (1) whether she was sexually harassed and (2) whether she was retaliated against for engaging in protected activity. For the reasons discussed below, we affirm the judgment of the district court.

The district court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1343. This court has jurisdiction over this appeal under 28 U.S.C. § 1291. The district court's judgment was entered on July 7, 1998, and the notice of appeal was timely filed on July 10, 1998. Fed. R. App. P. 4(a).

I. Background

We need not state the facts extensively and, indeed, have little to add to the excellent memorandum opinion of the district court. Appellant has been employed at the Friskies pet food manufacturing plant in Crete, Nebraska, since 1990. At the time of the various incidents at issue, she was a sanitation/pallet washer in the meat preparation department, and, subsequently, at her request she was transferred to the packaging department in September 1996. In the spring of 1996, after a co-worker, Kathy Ramer, had complained about sexual harassment, appellant believed that other employees thought that she was the one who had made the complaint. In July 1996, appellant did file a sexual harassment charge with the state equal opportunity commission. She asserted from that point she was ostracized and isolated by other employees and first-line supervisors. She complained to the human resource manager, Jonathan "Josh" Sprowl, that a co-worker named Larry King had patted her on the bottom, had blown her kisses and had made sexual comments to her. She also complained that a co-worker and fill-in lead person, Trent Smejdir, had teased her, picked on her, thumped her on the head, and made fun of the way she dressed and ate.

Appellant also complained that on July 3, 1996, co-worker Lonnie Schoenfeld approached her, called her names and yelled at her "You need to get your f------ story straight; I didn't know anything about the f------ minerals. You girls need to leave me the hell alone." Appellant also reported that Schoenfeld made threatening gestures toward her, shaking his fist and cussing at her. Apparently these comments were made during a meeting discussing the sexual harassment complaints and the company sexual harassment policy. According to appellant, there was yelling and crying at the meeting. Plant Manager Bruce Henning slammed his fist on the table out of frustration. Schoenfeld made his "you f------- girls better get your stories straight" comments. In his deposition Schoenfeld testified that he was frustrated by the sexual harassment complaints and the attempts by the company to improve "communication" between the sexes.

Appellant alleged that, after she filed a sexual harassment charge with the state equal opportunity commission, she was subjected to retaliation and continued harassment, for example, some of her co-workers and immediate supervisors stopped talking to her and treated her rudely, followed her around, glared at her, and slammed doors in her face; someone also "keyed" (scratched the finish with a sharp object such as a car key) her car on the plant parking lot. In particular, appellant asserted that co-worker Betty Schoenfeld, Lonnie Schoenfeld's wife, followed

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her into a bathroom and slammed a door in her face, which upset and frightened her.

Appellant alleged that, because these actions occurred frequently over a long period of time, they created a hostile work environment. She also kept a journal in which she documented these actions at work, for example, recording hostile actions on 25 days between late August and late October 1996. Appellant alleged that management was aware of the actions taken against her and did nothing. For example, she alleged that Lonnie Schoenfeld was never disciplined. Apparently her complaints were given only "verbal Discussions."

Additionally, she asserted that much of the conduct was that of immediate supervisors, such as Smejdir and Mike Blacketer. She alleged that these individuals were "lead persons" or first-line supervisors, that is, employees who may not have had supervisory titles but who had supervisory authority on the plant floor.

Finally, she asserted that the sexual harassment and retaliation forced her to request a transfer to another job outside of her department. She also believed that the sexual harassment and retaliation altered her work environment and made it hostile, threatening, stressful, and humiliating. Appellant in her complaint identified five sexual harassment incidents involving Smejdir 2 and four involving Schoenfeld 3 and many incidents of retaliation

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by co-workers4 after she filed her sexual harassment charge. After the alleged retaliation but before she filed a retaliation charge, she was moved to another position in the packaging department. In September 1996 appellant filed a retaliation charge. In November 1996 appellant received a position in the internal labor pool. Sprowl approved both transfers and appellant acknowledged that her supervisors have been "very supportive."

Appellant filed this case against Friskies in federal district court in April 1997, alleging claims of sexual harassment and retaliation. The district court granted summary judgment in favor of the company.

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The district court first found that there were no material facts in dispute. See slip op. at 10. The district court found that appellant failed to establish a sexual harassment claim because she failed to show that she found her co-workers' conduct unwelcome and offensive, see id. at 11-12 (finding appellant used offensive language, teased co-workers and made sexual and off-color comments, which undermined her claim that she found similar conduct by co-workers unwelcome and offensive); she failed to show that harassment was based on sex, see id. at 12-13 (finding appellant failed to show that women in general, and herself in particular, suffered disadvantageous terms or conditions of employment to which men were not exposed; evidence that co-workers were either rude to both women and men or incidents were not based upon her sex); and, finally, she failed to show that the her co-workers' conduct was so severe or pervasive as to alter the conditions of appellant's employment and create an abusive working environment. See id. at 13-15 (finding appellant did not perceive work environment as hostile or abusive subjectively, noting appellant participated in some of the comments which she claimed was offensive and reported only 4 of 9 incidents, each of which was remedied to her satisfaction, or objectively, noting appellant cited isolated incidents of bad language and rude behavior, to which appellant either responded in kind or reported and which the company remedied to her satisfaction).

The district court also found that appellant failed to establish a claim of co-worker retaliation. First, the district court noted that appellant alleged that her co-workers had retaliated against her. See id. at 16 n. 2 (noting that appellant did not claim any retaliatory conduct by supervisors, thus implicitly finding that the individuals she characterized as lead persons or first-line supervisors were co-workers, not supervisory employees). The district court then found that appellant failed to show either any adverse employment action or any causal connection between her filing sexual harassment charges and adverse employment action. See id. at 16 (noting appellant testified that she had not suffered any adverse job action and that her supervisors had been supportive and responsive to her complaints). This appeal followed.

II. Summary Judgment

We review a grant of summary judgment de novo. See Smith v. St. Louis University, 109 F.3d 1261, 1264 (8 Cir. 1997). Summary judgment is appropriate ifth the movant has shown that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law; in assessing the evidence we take the non-movant's evidence as true, drawing all reasonable inferences in his or her favor. See Fed. R. Civ. P. 56(c); Kopp v. Samaritan Health Sys., Inc., 13 F.3d 264, 268-69 (8th Cir. 1993).

III. Hostile Work Environment

Appellant first argues that the district court erred in finding that she failed to establish a sexual harassment...

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