870 F.3d 820 (8th Cir. 2017), 16-3100, Blake v. MJ Optical, Inc.

Docket Nº:16-3100
Citation:870 F.3d 820
Opinion Judge:RILEY, Circuit Judge.
Party Name:Bobbette M. Blake, Plaintiff - Appellant v. MJ Optical, Inc., a Nebraska corporation, Defendant - Appellee
Attorney:For Bobbette M. Blake, Plaintiff - Appellant: Terry A. White, CARLSON & BURNETT, Omaha, NE. For M.J. Optical, Inc., a Nebraska corporation, Defendant - Appellee: Kathryn Anne Dittrick Heebner, David Kennison, FRASER & STRYKER, Omaha, NE.
Judge Panel:Before RILEY, BEAM, and SHEPHERD, Circuit Judges.
Case Date:August 31, 2017
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 820

870 F.3d 820 (8th Cir. 2017)

Bobbette M. Blake, Plaintiff - Appellant


MJ Optical, Inc., a Nebraska corporation, Defendant - Appellee

No. 16-3100

United States Court of Appeals, Eighth Circuit

August 31, 2017

Submitted May 10, 2017.

Page 821

Appeal from United States District Court for the District of Nebraska - Omaha.

Blake v. M.J. Optical, Inc., (D. Neb., Apr. 13, 2016)

For Bobbette M. Blake, Plaintiff - Appellant: Terry A. White, CARLSON & BURNETT, Omaha, NE.

For M.J. Optical, Inc., a Nebraska corporation, Defendant - Appellee: Kathryn Anne Dittrick Heebner, David Kennison, FRASER & STRYKER, Omaha, NE.

Before RILEY, BEAM, and SHEPHERD, Circuit Judges.


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RILEY, Circuit Judge.

Bobbette Blake sued her former employer, M.J. Optical, Inc., alleging she was the victim of sex discrimination, age discrimination, and a hostile work environment. The district court1 granted M.J. Optical's motion for summary judgment, finding Blake's evidence insufficient to support her federal and state law claims. Blake appeals, and we affirm. See 28 U.S.C. § 1291.


This case involves Blake's relationships with M.J. Optical and the Hagge family, both of which began over forty years ago. Blake started working at a company called Shamrock in the early 1970s. Shamrock's owner, Michael Hagge, would sometimes bring his then-adolescent son, Marty Hagge, to help around the shop. It is not entirely clear in the record, but at some point the Hagges went from owning Shamrock to M.J. Optical and Blake followed them there. For decades Blake worked as a bench technician in the finishing department--fitting eyeglass lenses into frames--for Shamrock, and then M.J. Optical.2

At some point before 1993, Marty became Vice President of M.J. Optical. Marty was one step removed from being Blake's direct supervisor, but " [h]e supervised the whole shop" and Blake interacted with him every day. Blake maintains they had a purely " [e]mployer/employee relationship," albeit one that sometimes extended beyond work. For instance, Marty invited Blake to his daughter's wedding, and Blake attended; Marty enrolled in a few college courses with Blake's grandson, and at least once helped the grandson with class work; and Marty lent Blake's church a hog cooker, prompting Blake to introduce him to her pastor. These anecdotes are illustrative of what Blake admits was a " good" relationship

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with Marty for a majority of her employment.

Blake claims that all changed at her husband's funeral in 1999. Marty attended the funeral, as did his father and several other M.J. Optical employees. Blake says she was standing outside the funeral home when Marty walked by and " grabbed [her] fanny." When Blake asked " What was that all about?" Marty replied, " I thought you needed it." That was the entirety of the exchange.

However that was not the end of the conduct Blake now cites as the basis for this action. From that point onward, Marty would occasionally touch Blake's buttocks at " [v]arious times during the workday." According to Blake, Marty " would either smack it really hard or grab [her] whole cheek of [her] butt. I mean, it was no love pat." Blake flashed " a dirty look" at least once in response to the touching, but she never verbalized her complaint to Marty or anyone else given her belief it " [w]ouldn't have done any good." Marty also began telling Blake she " needed to find a man," which Blake took to mean " that if [she] had sex with a man, that it would make [her] happy." 3 Again, any frustrations Blake had about these recurring comments were not communicated to Marty or anyone else. Blake also recalls one exchange where she was standing in front of Marty's desk when he commented on her breasts, saying " you'd better watch those things because they're going to poke my eyes out" and asking whether her nipples were " the size of nick[el]s or quarters." " [E]mbarrassed" by the interaction, Blake says she " probably turned red" and " went home and bought padded underclothes."

Blake found herself on the receiving end of what she perceived to be age-related affronts, too.4 For instance, Marty would tell Blake he " only kept her around to 'watch her die,'" even when other M.J. Optical employees were present and could hear. Blake acknowledges the comments were occasionally prompted by her asking Marty why he kept her around and were " [s]ometimes" meant as a joke. Marty would also tell Blake her " hands aren't any good anymore" whenever she needed his assistance fitting lenses into difficult frame styles. Yet again, Blake never informed Marty that she did not find the comments funny, nor did she complain to anyone else.

Notwithstanding all of the above, Blake admits she would platonically touch Marty " between his shoulders" and joke around with Marty " [o]n occasion." Sometimes Marty said, " I love you, Bobbi," to which Blake would respond, " I love you, too, Marty." Furthermore, when asked during a deposition whether she ever thought Marty " was treating [her] differently because of [her] gender," Blake replied, " No." Other than the comments above, the only time Blake felt treated differently due to her age was when Marty told her she was " too old" to carry stacks of trays, a limitation she says was unwarranted but one that " [d]idn't matter" to her.

The chain of events that ultimately led to Blake leaving M.J. Optical began on May 9, 2013, when she noticed a problem with a

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large number of frames. Blake reported the issue to Mary Hagge--the president of M.J. Optical and Marty's mother--who then tasked Marty with finding and fixing the problem. After Marty determined there was nothing wrong with the tracing machine, he turned his focus to Blake's work in the " mounting area." In an attempt to " diagnose" the problem, Marty " temporarily asked [Blake] to refrain from completing her mounting work" while two other long-term employees took over for a few days to see if the problem was manual or mechanical. Blake kept busy with other work, did not consider this short-term reassignment to be a demotion, continued at the same pay rate, was not worried she would be fired, and did not complain in any way.

Nonetheless--and despite explicit instructions to the contrary--Blake resumed her spot at the mounting station two or three days later when she noticed it was unoccupied. As Blake tells it, she was about to start when Marty noticed her from the front of the shop and came at her " like a bull moose. He was red in the face, chomping his tongue like he does when he gets angry." Then Marty said, " I don't want you doing that, sit down. Let somebody else do it." Marty also accused Blake of being the reason he had to quit school and stay put at M.J. Optical, an accusation Blake says Marty would sometimes make to all employees out of bitterness for his own situation. This was not the first time Marty had exhibited his angry demeanor in the workplace, so Blake feared he may become physically aggressive.[5]

After the encounter Blake was " shaking and crying" so much she " couldn't hardly function." Blake sought out Mary and described Marty's outburst, noting how upset it made her. Mary dismissed the notion Marty would have ever hit Blake--he " wouldn't do something like that" --but said she would talk to Marty about his anger problem. Despite finally registering a complaint against Marty, Blake did not mention any mistreatment based on her sex or age. (Blake did take this opportunity to air her grievances against her direct supervisor for unrelated reasons.) The conversation ended with Mary telling Blake to " go home and plant flowers." Blake did just that and took the afternoon off (with pay).

Rather than return the next day, Blake resigned from M.J. Optical by leaving a...

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