Blomker v. Jewell

• Decision Date: 05 August 2016
• Docket Number: No. 15-1787,15-1787
• Citation: 831 F.3d 1051
• Parties: Denise Blomker, Plaintiff–Appellant v. Sally Jewell, Secretary of the United States Department of the Interior, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

831 F.3d 1051

Denise Blomker, Plaintiff–Appellant

v.Sally Jewell, Secretary of the United States Department of the Interior, Defendant–Appellee.

No. 15-1787

United States Court of Appeals, Eighth Circuit.

Submitted: April 11, 2016

Filed: August 5, 2016

Counsel who represented the appellant was Greg Rinckey of Albany, NY.

Counsel who represented the appellee was David Gerald Wilhelm, AUSA, of Minneapolis, MN.

Before LOKEN, BEAM, and SMITH, Circuit Judges.

SMITH

, Circuit Judge.

Denise Blomker appeals the district court's¹ dismissal under Federal Rule of Civil Procedure 12(b)

of her pro se complaint alleging a sexual harassment claim based on hostile work environment and a retaliation claim against her employer, the Department of the Interior (“Department”). We affirm.

I. Background

We accept as true the factual allegations in Blomker's pro se complaint at this stage of the proceedings. See Braden v. Wal – Mart Stores, Inc. , 588 F.3d 585, 591 (8th Cir. 2009)

.

Blomker worked for more than four years at the Department as a secretary in the Migratory Birds Division of the U.S. Fish and Wildlife Service. The Department informed Blomker of its intent to terminate her on April 10, 2014. According to the Department's letter, Blomker's termination was based on Blomker (1) calling her supervisor “a god-d***ed f***ing liar” and grabbing a supervisor's arm and twisting it, (2) stating that she would send copies of e-mails in her possession to the Equal Employment Opportunity Commission (EEOC) and the court, and (3) copying unnecessary people on e-mails after repeated warnings to cease doing so. Blomker was terminated on May 8, 2014.

Blomker filed a pro se complaint against the Department, alleging, inter alia , a sexual harassment claim based on hostile work environment and a retaliation claim against the Department.² In support of her sexual harassment claim based on hostile work environment, Blomker alleges seven incidents of harassment by two different men over a nearly three-year period. They are as follows:

(1) On February 24, 2010, Blomker's coworker, Tom Will, “moved his finger toward [a] button [on Blomker's shirt] and stopped approximately three inches from putting his finger between [her] breasts.” Will then said, with “a smirk on his lips,” “I can put a button right there.”

(2) On September 9, 2010, Will called out Blomker's name. “As he came toward [Blomker,] [she] noticed he was sexually aroused (having an erection).” With “a smirk on his face,” Will “walked up and stood extremely close to [Blomker] that [she] stepped back from him.”

(3) “On several occasions” during February and March 2010, Will, with “a smirk on his face,” (a) “walked over to the candy basket on the window sill, picked it up, swung the candy basket[,] and then ... picked up the candy that had fallen onto the floor and put it back into the candy basket”; and (b) “[d]ug into the plastic container of candy, moving the candy about and making extra noise while he was playing with the candy.” Blomker believed that Will engaged in this conduct to get her attention.

(4) On December 7, 2010, Will “walked up behind [Blomker] and stood extremely close.” According to Blomker, had she “back[ed] up a couple of inches, [she] would have bumped into [Will].”

(5) On April 14, 2011, Will was on his cell phone outside of Blomker's cubicle and briefly blocked her from exiting her cubicle.

(6) On both November 19 2012, and December 6, 2012, Blomker's coworker, Richard Rottman, who sat in the cubicle adjacent to Blomker, “was picking at the seam located in the crotch of his pants—his legs spread apart 180 degrees while [Blomker] was having a conversation with him.”

(7) On January 10, 2013, Rottman had an erection while speaking to Blomker.

Blomker characterizes these incidents as “attacks” and “solicitations.” She alleges that management at the Department “turned their [sic] backs on me, refused twice accommodations to help alleviate my visual and physical contact with the two perpetrators. I believe this to be a result of the EEO complaints I have made and subsequent filing with the District Court.”

With regard to her retaliation claim, Blomker cites several situations that she alleges constitute retaliation based on her reporting discrimination. The district court accurately summarized these situations as follows:

1) her work performance or work attendance was criticized and she feels that she has been unnecessarily blamed and criticized at work (see, e.g. , [Complaint] ¶¶ 18–20, 22–26, 29, 30, 32, 37–42, 44A, 44C–D, 45–50, 53, 54, 59, 61, 65, 66, 68, 70–72, 75, 78–82, 84, 85, 87, 89);

2) she was not kept up-to-date on office news or invited to office events (see, e.g. , id. ¶¶ 19, 34, 55–57, 59, 60);

3) there was poor communication between her and her coworkers and supervisors (see, e.g. , id. ¶¶ 18, 19, 24, 34, 41, 44D, 52, 54, 63, 67, 83);

4) people were talking about her EEO complaints (see, e.g. , id. ¶¶ 28, 58, 73);

5) her coworkers sometimes did her job, especially when she was away from the office (see, e.g. , id. ¶¶ 44D, 44E, 44G, 56, 62, 63, 83, 88);

6) she had antagonistic relationships with her bosses (see, e.g. , id. ¶¶ 19, 23, 27, 29, 44B, 44D, 53, 54, 67–69, 75, 77, 78, 83, 91);

7) she did not receive a raise and was not permitted to take classes (see, e.g. , id. ¶¶ 32, 33, 35, 76, 77); and

8) she was suspended and ultimately terminated (see, e.g. , id. ¶¶ 74, 93).

(Footnote omitted.)

The Department filed a Rule 12(b)

motion to dismiss Blomker's complaint on the basis that Blomker failed to adequately exhaust her administrative remedies. It also argued that she could not state a claim for discrimination or retaliation. The district court expressly declined to decide the exhaustion issue, finding only that Blomker could not state a claim for discrimination or retaliation. Blomker appeals.

II. Discussion

Blomker argues that the district court erred in dismissing her sexual harassment and retaliation claims because she has set forth sufficient allegations to support both claims. We review de novo a district court's dismissal of a complaint based upon Rule 12(b)(6)

, “taking the facts alleged in the complaint as true.” Bradley Timberland Res. v. Bradley Lumber Co. , 712 F.3d 401, 406 (8th Cir. 2013) (citation omitted).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)

(quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A plaintiff's claim is facially plausible where “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). “The plausibility standard ... asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ).

“In Swierkiewicz v. Sorema , 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)

, the Supreme Court negated any need to plead a prima facie case in the discrimination context and emphasized that the prima facie model is an evidentiary, not a pleading, standard.” Rodriguez

–

Reyes v. Molina

–

Rodriguez , 711 F.3d 49, 53 (1st Cir. 2013) (citing Swierkiewicz , 534 U.S. at 510, 512, 122 S.Ct. 992 ). Under Swierkiewicz, “[i]t is not necessary to plead facts sufficient to establish a prima facie case at the pleading stage.” Id. at 54 (citing Swierkiewicz , 534 U.S. at 512, 122 S.Ct. 992 ). “The prima facie standard is an evidentiary standard, not a pleading standard, and there is no need to set forth a detailed evidentiary proffer in a complaint.” Id.

However, “elements of the prima facie case are [not] irrelevant to a plausibility determination in a discrimination suit.” Id.

Instead, such “elements are part of the background against which a plausibility determination should be made.” Id. (citations omitted). In summary, “the elements of a prima facie case may be used as a prism to shed light upon the plausibility of the claim.” Id. As we have previously explained:

[A] plaintiff must assert facts that affirmatively and plausibly suggest that the pleader has the right he claims ..., rather than facts that are merely consistent with such a right. While a plaintiff need not set forth detailed factual allegations or specific facts that describe the evidence to be presented, the complaint must include sufficient factual allegations to provide the grounds on which the claim rests . A district court, therefore, is not required to divine the litigant's intent and create claims that are not clearly raised, and it need not conjure up unpled allegations to save a complaint.

Gregory v. Dillard's, Inc. , 565 F.3d 464, 473 (8th Cir. 2009)

(en banc) (alteration in original) (emphasis added) (quotations and citations omitted).

Does Blomker's complaint set forth sufficient factual allegations to provide the grounds upon which her sexual harassment claim based on hostile work environment and retaliation claim rest? We conclude that it does not.³

A. Sexual Harassment Claim Based on Hostile Work Environment

To establish the elements of a sexual harassment claim based on a hostile environment, a plaintiff must show that: (1) she belongs to a protected group; (2) she was subject to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take proper remedial action. Schmedding v. Tnemec Co. , 187 F.3d 862, 864 (8th Cir. 1999)

.

“The fourth element involves both objective and subjective components.” Sandoval v. Am. Bldg. Maint. Indus., Inc. , 578 F.3d 787, 801 (8th Cir. 2009)

(citation omitted). It requires that “[t]he harassment ... be ‘severe or pervasive enough to create an objectively...