Joens v. John Morrell & Co.

• Decision Date: 14 January 2004
• Docket Number: No. 03-1573.,03-1573.
• Parties: LaDonna JOENS, Plaintiff — Appellant, v. JOHN MORRELL & CO., Defendant — Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 938

354 F.3d 938

LaDonna JOENS, Plaintiff — Appellant, v. JOHN MORRELL & CO., Defendant — Appellee.

No. 03-1573.

United States Court of Appeals, Eighth Circuit.

Submitted: October 24, 2003.

Filed: January 14, 2004.

Counsel who presented argument on behalf of the appellant was Jay E. Denne of Sioux City, IA. Also appearing on appellant's brief were Stanley E. Munger and Colby M. Lessmann.

Counsel who presented argument on behalf of the appellee was Leslie R. Stellman of Towson, MD. Also appearing on appellee's brief were Eric W. Gunderson of Towson, MD. and Scott C. Folkers of Sioux Falls, SD.

Before LOKEN, Chief Judge, LAY and HEANEY, Circuit Judges.

LOKEN, Chief Judge.

LaDonna Joens brought this Title VII action against John Morrell & Co. for hostile work environment, sex discrimination, and discriminatory retaliation. See 42 U.S.C. § 2000e-2(a). The district court¹ granted summary judgment for Morrell, dismissing all claims. Joens v. John Morrell & Co., 243 F.Supp.2d 920, 951 (N.D.Iowa 2003). Joens appeals the dismissal of her hostile work environment claim, arguing that she presented sufficient evidence that the harassing co-worker was a supervisor and that Morrell ignored her repeated complaints of sex-based harassment. Reviewing the grant of summary judgment de novo, and viewing the evidence in the light most favorable to Joens, the non-moving party, we affirm. See Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 964 (8th Cir.1999) (standard of review).

Joens was hired to work at Morrell's Sioux City meat packing plant in 1986. Beginning in 1990, she was employed in the "box shop," where she operated a machine that made boxes from flat sheets of cardboard. Joens worked the day shift, when box bottoms were made. A male employee operated the machine during the night shift, making box tops. Joens testified that she made three types of box bottoms for various production lines in the plant, including the kill floor, the cut floor, and the ham line. The foremen for the different production lines ordered boxes from the box shop. Joens testified that she was not told how many boxes of each type to make each day: "You don't know. You just have to play it by ear.... You just hope you make the correct decision." Morrell presented evidence that the superintendent of the day shift kill floor, Dennis Reitz, supervised the box shop, and that Joens's day-to-day box making activity was largely unsupervised. Joens testified that she thought Reitz was her immediate supervisor.

Joens alleges persistent sexual harassment by Herman Johnson, the day shift foreman of the cut floor line. Joens testified in a deposition that Johnson came to the box shop on almost a daily basis to abusively criticize her for not making enough boxes for the cut floor. Joens alleges that Johnson constantly swore, yelled at her, and accused her of not doing anything; that Johnson singled her out for this abusive criticism even when a male employee was helping her make boxes; and that the men who made box tops during the night shift were not subject to similar criticism. Joens further alleges that she repeatedly complained of Johnson's harassment to the union steward and to various Morrell supervisors, yet nothing was done and Johnson's abusive criticism continued for three years until Joens filed a charge with the Iowa Civil Rights Commission. Johnson was not deposed. In an affidavit submitted in support of Morrell's summary judgment motion, he admitted going to the box shop two or three times a week to request more boxes or a different type of box for the cut floor. He denied swearing at Joens, constantly berating her, or treating her more harshly or differently than her male co-workers. Joens and Johnson had no personal relationship and no other contacts in the workplace.

As a woman, Joens is a member of a group protected under Title VII. To establish a hostile work environment claim, Joens must show that she was subjected to unwelcome sex-based harassment that was sufficiently severe or pervasive to alter a term, condition, or privilege of her employment. Schoffstall v. Henderson, 223 F.3d 818, 826 (8th Cir.2000). If she makes that showing, and if the harassment was committed by a co-worker, Joens must also establish that Morrell "knew or should have known of the conduct and failed to take proper remedial action." Dhyne v. Meiners Thriftway, Inc., 184 F.3d 983, 987 (8th Cir.1999). On the other hand, if the harassment was committed by an employee who supervised Joens, Morrell as her employer is vicariously liable for the harassment unless it can establish the affirmative defense defined in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 807-08, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). In granting summary judgment in favor of Morrell, the district court concluded that Johnson was a co-worker, not a supervisor, for these purposes.

In Ellerth and Faragher, the Supreme Court did not answer the question, "who is a supervisor?," other than to state that an employer is vicariously liable "for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the [victimized] employee." Ellerth, 524 U.S. at 765, 118 S.Ct. 2257. We have not yet addressed that question. See Todd v. Ortho Biotech, Inc., 175 F.3d 595, 598 (8th Cir.1999). The decisions of the few circuits to address the question are not entirely consistent. The majority hold that, to be a supervisor, the alleged harasser must have had the power (not necessarily exercised) to take tangible employment action against the victim, such as the authority to hire, fire, promote, or reassign to significantly different duties. See Hall v. Bodine Elec. Co., 276 F.3d 345, 355 (7th Cir.2002); Mikels v. City of Durham, 183 F.3d 323, 333-34 (4th Cir.1999). By contrast, the Second Circuit recently adopted a somewhat broader standard, concluding that an alleged harasser is a supervisor for these purposes if he possessed "authority to direct the employee's daily work activities," even if he otherwise lacked the power to take tangible employment action against the victim. Mack v. Otis Elevator Co., 326 F.3d 116, 127 (2d Cir.), cert. denied, 540 U.S. 1016, 124 S.Ct. 562, 157 L.Ed.2d 428 (2003). After carefully analyzing the Ellerth and Faragher decisions, the district court adopted the narrower standard of Hall and Mikels. Joens, 243 F.Supp.2d at 934-41.

On appeal, Joens argues that summary judgment on this issue was improper because she submitted evidence that Johnson "had some supervisory authority over Joens because he could write her up for violation of company policies or failing to perform her work" and "could provide her with additional work." We disagree. Johnson was a foreman on one of the production lines served by the box shop. Within the plant, he was a customer of...