Hesse v. Avis Rent a Car System, Inc.

• Decision Date: 10 January 2005
• Docket Number: No. 04-1955.,04-1955.
• Citation: 394 F.3d 624
• Parties: Sharon HESSE, Plaintiff — Appellant, v. AVIS RENT A CAR SYSTEM, INC., Defendant — Appellee. Equal Employment Advisory Council, Amicus on Behalf of Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

394 F.3d 624

Sharon HESSE, Plaintiff — Appellant, v. AVIS RENT A CAR SYSTEM, INC., Defendant — Appellee Equal Employment Advisory Council, Amicus on Behalf of Appellee.

No. 04-1955.

United States Court of Appeals, Eighth Circuit.

Submitted: November 18, 2004.

Filed: January 10, 2005.

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James C. Snyder, argued, Roseville, MN, for appellant.

Andrew J. Voss, argued, Minneapolis, MN (James C. Snyder, Sr., Roseville, MN, on the brief), for appellee.

Before MURPHY, LAY, and MELLOY, Circuit Judges.

MURPHY, Circuit Judge.

Sharon Hesse brought this Title VII case against her former employer Avis Rent A Car System, Inc., alleging sexual harassment, gender discrimination, and retaliation. Avis moved for summary judgment, arguing that it had responded to Hesse's complaints and that her layoff was part of a reduction in force necessitated by the loss of business after the terrorist attacks in September 2001. Hesse also sought summary judgment. The district court¹ granted summary judgment to Avis, and Hesse appeals. We affirm.

I

Hesse began working for Avis at the Minneapolis St. Paul International Airport in April 1995 as a customer service representative. Later she became a rental agent, and in August 1998 she was promoted to a clerical position under the supervision of Terry Braaten, a Maintenance and Damage (M & D) manager. Then Hesse took a newly created permanent administrative position as the M & D clerk reporting to Braaten. In 1999 she began to work under the supervision of another M & D manager, Rodney Johnson, and she soon began to experience difficulties in her relationship with him.

Particularly significant to Hesse's claims here is an incident that took place on November 17, 1999. On that day Hesse saw that Johnson was meeting with Braaten, but she did not know what they were talking about. When Johnson came out of Braaten's office, he went into Hesse's work area where she was seated at her desk. She says he paced around and then walked up to her, kicked her desk, and pushed her chair into the desk. Hesse stood up and protested, but Johnson pushed her chair again. The two then went to speak to Terry Wallner, who was the Twin Cities manager and Johnson's supervisor.

Wallner met with Hesse and Johnson in her office. After listening to Hesse's version of the incident, Wallner said she would speak with each employee individually. Hesse returned to her desk, and Wallner talked with Johnson about the incident. Later that day Hesse saw Wallner and Johnson laughing and joking in the hallway, and she concluded that Wallner was not going to respond to her complaint. After leaving work for the day, Hesse placed a 911 call to the Bloomington Police Department, accusing Johnson of assault.

When Hesse reported for work the next morning, Wallner met with her to discuss her concerns about Johnson and her report to the Bloomington police. Hesse told Wallner that Johnson had been intimidating and harassing her. She stated that he frequently clapped his hands together loudly, knocked on the glass that separated her office from the garage area, yelled, and deliberately squeaked his tennis shoes to create a loud noise. She also felt that Johnson badgered her about her job performance. Wallner advised Hesse to report her concerns to Denise Jacobson, the human resources manager, and Hesse met with Jacobson that day.

Wallner met with Johnson the next day and counseled him to cease the clapping, squeaking, banging, and yelling. Both Wallner and Jacobson met with Hesse the following week and assured her that Johnson's noisemaking would stop. Hesse suggested that Johnson should be sent to an anger management class, and Avis responded by sending him to a class for managers. Jacobson subsequently followed up with Hesse to check whether Johnson's conduct had improved.

Hesse admits that Johnson's noisemaking subsided after she complained about his conduct, but she claims that he did not forgive her for calling the police. He became very critical of her work and referred to the 911 call in conferences with her and with other supervisors.² Hesse made no additional complaints about Johnson's behavior, however.

Johnson and Hesse had another conflict in October 2000. He shouted a question to Hesse from his office, and she refused to answer. Johnson came out of his office, visibly angry, and yelled at Hesse. She threatened to call the police if he did not leave her alone. Johnson immediately reported Hesse's threat to Wallner, who advised Hesse to leave the work area if she felt threatened. Johnson submitted a written complaint to Wallner, stating that Hesse was hindering his job performance, that he did not want to be threatened by her anymore, and that he could not manage her because of her threats to call 911 and her accusations of abuse.

In November 2000 Wallner convened a meeting with Hesse and Johnson to discuss their issues. Terry Braaten and Denise Jacobson also attended. Hesse told Johnson that she did not like him to yell at her or repeatedly ask her questions, and Johnson raised his concerns that Hesse was spreading unfounded rumors about him. Wallner explained what she expected from both employees and directed Braaten to act as an intermediary between them.

According to Hesse, Johnson's noisemaking increased in the last half of 2001 and he was overly critical of her work. Johnson told Braaten and Hesse in May that he was not going to give Hesse any more work, and he did not. Hesse claims that her husband, also an Avis employee, was working with Sheila Sexauer one day when he saw Johnson act inappropriately. He saw Johnson appear and pound loudly on the window to get Sexauer's attention. Neither Johnson nor Sexauer recalls this incident.

After the September 11, 2001 terrorist attacks, the rental car business fell off and Avis decided to reduce its fleet of cars. Headquarters instructed Wallner to cut the size of her payroll. In November 2001, Wallner laid off Hesse and thirteen males. The men included five service agents responsible for cleaning cars, five shuttlers or drivers, two customer service representatives, and one shift manager. In addition to the layoffs, two full time employees in the dispatch area had their positions reduced to part time. Wallner had had two clerical positions under her supervision; one of which was Hesse's position as M & D clerk. In that job, Hesse assisted Braaten and Johnson by doing paperwork, making telephone calls, and assisting callers. Wallner testified in her deposition that she eliminated Hesse's position because she had two M & D managers who could take on Hesse's responsibilities, and Braaten and Johnson did take them over. A part time male driver with less seniority than Hesse continued to work part time as a driver in the M & D area. In her layoff notice, Hesse was informed that she could be called back to her "respective job classification" within one year.

Hesse complains that the thirteen males who were laid off were called back to work, but she was not. She says that at the time of her layoff, two people continued to be trained as rental sales agents even though she had expressed an interest in returning to that job classification. Hesse also learned from her husband that Avis was still hiring to fill a rental sales agent position after the layoff. She never applied for it even though she checked it out on the internet.

After she was laid off and was not called back, Hesse sued Avis in state court under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. She alleged sexual harassment, gender discrimination, and retaliation. Avis removed the case to federal court, and the parties filed cross motions for summary judgment. The district court granted summary judgment to Avis after concluding that Hesse had failed to demonstrate a triable case of sexual harassment, gender discrimination, or retaliatory discrimination. It ruled that Hesse had failed to produce sufficient evidence that Johnson's treatment of her was based on sex or that his conduct was sufficiently severe or pervasive enough to affect her employment and that Avis could not be held vicariously liable for Johnson's conduct. The court also concluded Hesse failed to make a showing that gender was a factor in her termination or the reason she was not recalled and that she failed to show pretext or causation on her retaliation claim. Hesse then filed this appeal.

II

Hesse asserts on appeal that the district court erred by granting summary judgment to Avis. She argues that Rod Johnson's conduct was based on her sex and created a hostile work environment, that Avis failed to take reasonable steps to stop the harassment, that she was terminated and not recalled to work because of her gender, and that she was laid off in retaliation for her complaints against Johnson. Avis responds that the district court properly found that all of Hesse's claims failed as a matter of law.

Title VII prohibits employers from discriminating "against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). We review de novo the summary judgment in favor of Avis. Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839, 841 (8th Cir.2002). Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The respondent must do more than rely on allegations or denials in the pleadings, and the court should grant summary judgment if any essential element of the prima facie case is not supported by specific facts sufficient to raise a genuine issue for trial. Celotex...