Henthorn v. Capitol Communications, Inc.

• Decision Date: 05 March 2004
• Docket Number: No. 03-1018.,03-1018.
• Citation: 359 F.3d 1021
• Parties: Keri HENTHORN, Appellant, v. CAPITOL COMMUNICATIONS, INC., doing business as WOI-TV Channel 5; Jim Parker, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

359 F.3d 1021

Keri HENTHORN, Appellant, v. CAPITOL COMMUNICATIONS, INC., doing business as WOI-TV Channel 5; Jim Parker, Appellees.

No. 03-1018.

United States Court of Appeals, Eighth Circuit.

Submitted: December 15, 2003.

Filed: March 5, 2004.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Maggi Moss, argued, Des Moines, IA, for appellant.

Mark W. Thomas, argued, Des Moines, IA, for Capitol Communications.

Brent R. Appel, argued, Des Moines, IA, for Jim Parker.

Before WOLLMAN, JOHN R. GIBSON, and RILEY, Circuit Judges.

WOLLMAN, Circuit Judge.

Keri Henthorn appeals the district court's¹ grant of summary judgment in favor of Capitol Communications, Inc. and Jim Parker on her sexual harassment claims brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Iowa Civil Rights Act, Iowa Code §§ 216.6 and 216.11.² Having reviewed the district court's grant of summary judgment de novo, Evergreen Invs., LLC v. FCL Graphics, Inc., 334 F.3d 750, 753 (8th Cir.2003), we affirm.

I.

Henthorn, who was then employed as a news anchor at a television station in Scottsbluff, Nebraska, was interviewed by Jim Parker in July 1999 for the position of photojournalist with Capitol Communications, Inc., WOI-TV Channel 5(WOI) in Des Moines, Iowa. At the time, Parker was station manager of WOI. Henthorn testified in her deposition that Parker told her during the interview that she "would be given a chance to anchor or fill in for someone ... who was out" during the first opportunity that became available. Henthorn accepted Parker's offer of a position "as a one-man band photojournalist." Accordingly, she resigned her position in Scottsbluff and began working at WOI in September 1999.

Henthorn testified that during her first few weeks of work Parker asked her out every day. She alleged that Parker made comments to other employees outside of her presence that she was "hot." Although Henthorn told Parker that she was not interested in a relationship, he continued to ask her out, often suggesting that they talk about things "over a drink." Some of the after-work events he invited her to were group outings with other employees, several of which she attended. Following one of these group outings, Parker left a message on Henthorn's answering machine, the content of which Henthorn found difficult to understand because it sounded to her as though Parker had had a lot to drink. A week or two after the first call, Parker again called Henthorn at her home late at night (12:30 or 1:00 a.m., to the best of her recollection), again leaving a message on her answering machine, this one including an invitation to attend a concert by Billy Joel, a popular entertainer, an invitation that Henthorn declined.

The record reveals that during Henthorn's first several months of work at WOI, Parker wrote two memos to her at the direction of WOI's General Manager, Ray Cole. The first memo, in October 1999, was written after Cole and Parker discussed the quality of Henthorn's work and Cole told Parker that he needed to do something to improve her performance. Parker used the memo to outline ways in which Henthorn needed to improve. Parker suggested at various times that he and Henthorn discuss the memo over a drink, and at one point indicated that he would rip the memo up if Henthorn would have a drink with him. Henthorn refused this invitation as well, but Parker nevertheless destroyed the memo, saying that Henthorn had been working hard and had improved. In December, Cole told Parker he was still displeased with Henthorn's work and verbally directed him to write a second memo. Henthorn received the second memo in December 1999, two weeks after she declined Parker's invitation to attend the Billy Joel concert. Believing that the second memo was based on her refusals of Parker's advances, Henthorn lodged a sexual harassment complaint on December 17, 1999, in accordance with the procedure specified in WOI's employee handbook. She later spoke to Cole, who immediately initiated an investigation of Henthorn's claims. After preliminary investigation by another employee, Cole continued to investigate the matter himself. After interviewing several employees, he concluded that there was likely some merit to Henthorn's complaints, reprimanded Parker, suspended him for three days, and established a separate supervisor for Henthorn so that she would have as little direct interaction with Parker as possible. Upon completing his investigation, Cole told Henthorn that she should immediately report to him directly any further problems related to Parker.

Notwithstanding the reprimand and temporary suspension, Parker continued in his position as station manager. Although Parker no longer asked Henthorn out or reprimanded her, Henthorn believed that he directed various negative changes in her schedule and assignments. Likewise, although Parker frequently yelled at all employees, Henthorn felt that he singled her out for more criticism than others received, including yelling at her in front of others. She complained to her then supervisor, Sonya Heithsusen, but she did not approach Cole to report the treatment that she felt was unjust and retaliatory.

In March of 2000, a temporary anchor position opened up when one of WOI's anchors went on maternity leave. In light of the representation that Parker had made when he hired her, Henthorn believed that she should be given a chance to apply for the position. Henthorn was aware that a fellow employee was interviewing for the position, but when she asked Parker if others were being given the opportunity to do so, he said "no." Upper management ultimately selected another employee for the temporary position.

Frustrated and discouraged by what she considered her heavy work schedule and poor treatment, Henthorn resigned her position in May 2000. She filed a complaint with the Iowa Civil Rights Commission the following month. A copy of the charge was sent to WOI, but Parker never received his copy because he had been fired shortly after Henthorn left the station. After receiving a right-to-sue letter in November 2000, Henthorn filed the present action in federal district court, alleging hostile work environment, quid pro quo sexual harassment, and discriminatory retaliation.

II.

Summary judgment is proper if, after viewing the evidence in a light most favorable to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Evergreen Invs., 334 F.3d at 753. Mere allegations not supported with specific facts are insufficient to establish a material issue of fact and will not withstand a summary judgment motion. Klein v. McGowan, 198 F.3d 705, 709 (8th Cir.1999). Only admissible evidence may be used to defeat such a motion, Shaver v. Independent Stave Co., 350 F.3d 716, 723 (8th Cir.2003), and affidavits must be based on personal knowledge. Fed.R.Civ.P. 56(e).

Title VII prohibits employment discrimination based on sex and covers a broad spectrum of disparate treatment. 42 U.S.C. § 2000e-2; Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). When the discrimination is not patent, a plaintiff may still prevail by showing that the inappropriate conduct creates a "hostile work environment." See 29 C.F.R. § 1604.11(a)(3) (2004). A prima facie case for a hostile work environment requires proof (1) that plaintiff is a member of a protected group; (2) that she was subjected to unwelcome sexual harassment; (3) that the harassment was based on sex; and (4) that the harassment affected a term, condition or privilege of her employment. Duncan v. General Motors Corp., 300 F.3d 928, 933 (8th Cir.2002). The fourth element involves both objective and subjective components. Id. at 934. The harassment must be "severe or pervasive enough to create an objectively hostile or abusive work environment" and the victim must subjectively believe that her working conditions have been altered. Harris, 510 U.S. at 21-22, 114 S.Ct. 367. "There is no bright line between sexual harassment and merely unpleasant conduct...." Hathaway v. Runyon, 132 F.3d 1214, 1221 (8th Cir.1997). Accordingly, we view the "totality of the circumstances" in determining whether there is a hostile work environment. Klein, 198 F.3d at 709. Some of the factors we look to include the frequency of the behavior, its severity, whether physical threats are involved, and whether the behavior interferes with plaintiff's performance on the job. See Duncan, 300 F.3d at 934.

Henthorn also argues that she was subject to quid pro quo harassment. As our court has recognized, a claim of quid pro quo harassment often adds little to a straightforward Title VII analysis. Forshee v. Waterloo Industries, Inc., 178 F.3d 527, 530 (8th Cir.1999). Both quid pro quo and hostile work environment sexual harassment claims are grounded in the same legal theory under Title VII, the former involving an explicit, and the latter a constructive, change in conditions of employment. Burlington Industries v. Ellerth, 524 U.S. 742, 752, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Sexual harassment is quid pro quo if a tangible employment action follows the employee's refusals to submit to a supervisor's sexual demands. Id.; Forshee, 178 F.3d at 530. A plaintiff in that situation need not prove that the offensive conduct is severe or pervasive because any carried-out threat is itself deemed an actionable change in the terms or conditions of employment. Ellerth, 524 U.S. at 753-54, 118 S.Ct. 2257. In this case, however, although Parker told Henthorn that he would tear up her first negative job performance memo if she would have a drink with him, his conditional promise/implied threat proved to be hollow in light of his destruction of the memo despite Henthorn's refusal to accede to his request. There was therefore no actionable change in Henthorn's employment, and...