Lopez v. Whirlpool Corp.

• Decision Date: 04 March 2021
• Docket Number: No. 19-2357,19-2357
• Citation: 989 F.3d 656
• Parties: Heather LOPEZ, Plaintiff - Appellant v. WHIRLPOOL CORPORATION, Defendant - Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

989 F.3d 656

Heather LOPEZ, Plaintiff - Appellant

v.WHIRLPOOL CORPORATION, Defendant - Appellee

No. 19-2357

United States Court of Appeals, Eighth Circuit.

Submitted: September 22, 2020

Filed: March 4, 2021

Dominic Francis Pechota, Matt J. Reilly, Nicholas C. Rowley, TRIAL LAWYERS FOR JUSTICE, Decorah, IA, for Plaintiff - Appellant.

Kelly Randall Baier, BRADLEY & RILEY, Cedar Rapids, IA, Jeannie M. DeVeney, LITTLER & MENDELSON, Kansas City, MO, Lavanga V. Wijekoon, LITTLER & MENDELSON, Chicago, IL, for Defendant - Appellee.

Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.

GRASZ, Circuit Judge.

Heather Lopez appeals the district court's¹ order granting summary judgment in favor of her former employer, Whirlpool Corporation, on her sex discrimination and retaliation claims. She also appeals a sanctions order. We affirm.

I. Background

From March 2015 to August 2016, Lopez worked for Whirlpool making refrigerators in Amana, Iowa.

In June 2015, Lopez joined the built-in-refrigeration ("BIR") line under the supervision of Sheri Gralund. Each day different people—including Gralund and Training Team Leader Brian Penning—assigned Lopez to fill in areas of the line which required labor. Whirlpool classified Penning as a "non-manager[.]" Lopez conceded that Penning was only her co-worker (not her supervisor).

Initially, Penning did not behave inappropriately toward Lopez. However, in July 2015, she saw him touch her co-worker, Stephanie Crawford. Lopez regarded that as "kind of creepy[.]" But it did not bother Crawford both because she had "known [Penning] since [she] was a little kid" and she "[didn't] think he'd be like that with [her]."

A month later, Penning turned his attention to Lopez.² He appeared behind her, "putting a hand on [her] shoulder and caressing [her] or talking quietly about something, just violating [her] space in general." She asked him to "back off a little[,]" told him "I'm not [Crawford], I don't like people in my personal space," and "mention[ed] to him [she] was married[.]" "So he stopped ... for a while[,]" and "would just do it" to Crawford. Eventually, "it started up again, but occasionally, not like every single day[.]"

In April of 2016, Lopez "started noticing [the harassment] more" and "it became problematic" after she won a Whirlpool weight-loss contest. She testified that "almost every time [she] came in contact with [Penning] there was some sort of touch involved on his end" often "[w]here he'd come up from behind" to touch her shoulder, arm, or back. Because she already "told him" not to touch her, "any touch after that was not okay."

Once, Penning's groin touched her when he stood behind her in a line. Another time, Lopez needed first aid, Penning kept her from going to the nurse, administered the aid himself, blew on her finger, and called her "baby." Lopez did not report either incident to HR, any supervisor, or her union.

However, according to Lopez, Gralund knew that she wanted Penning to stay away from her. Lopez also testified that she "[made] it clear to [Gralund] that on many occasions there had been physical interaction" from Penning. After one conversation, Gralund told Lopez that she would talk to Penning. Because "for a while ... it seemed like ... everything was fine[,]" Lopez assumed that Gralund spoke with Penning. Lopez also testified that she did not report every Penning incident because "[t]hat would have been redundant and probably irritated the hell out of [Gralund]."

In the summer of 2016, Whirlpool gave Gralund a new role on a different line and did not immediately replace her old role. During the transition, Penning "handled distributing labor and addressing issues on the BIR line, including directing line workers on their job duties."

On August 11, 2016, Lopez felt unqualified to perform a task Penning assigned to her. She demanded to see HR and union representatives. Penning told her it would be "insubordination if [she] refused to do a job" and denied her request. When Lopez stated "legally you can't deny me that," Penning "radioed somebody" who "told him, [‘]yeah, if she asks for HR, you get her to HR.[’]" Penning "was not happy" but took her to HR.

However, no one from HR or the union met with Lopez. Instead, Gralund met with her. In testifying about that meeting, Lopez described Gralund as acknowledging that Lopez "was already unnerve[ed] to ... have [Penning] close by" and that she lacked the qualifications for that day's task. Gralund encouraged Lopez to bid for a spot on her new line. Lopez viewed that encouragement as an incentive to stop complaining about Penning. Afterward, Gralund told HR employee Sue Schoenfelder about the meeting, that Lopez "was a good worker," and the possibility of joining Gralund's line.

On August 16, 2016, Lopez's co-workers—but not Penning—ignored her request for a brace to avoid re-injuring her shoulder. On August 17, Penning told Lopez to wear personal protective equipment while she worked in a stuffy, hot area. But Lopez would not do so without a fan. When Penning refused to address the temperature, Lopez told him that she was going to HR even after he threatened termination.³

That same day, while meeting with Schoenfelder and a union representative, Lopez made her first written complaint. It noted that: (1) on August 11, when Lopez wanted to discuss feeling unqualified for that day's task, she did not receive a meeting with an HR or union representative; (2) on August 16, Lopez only received a brace after waiting six hours and demanding to see the nurse; and (3) on August 17, Penning directed Lopez to a task in hot working conditions without access to ice, a fan, or moving air. Schoenfelder told Lopez that Whirlpool would investigate her complaints.

Lopez conceded that the August 17 complaint failed to mention Penning's harassment, yet testified that she told Schoenfelder and the union representative "everything about [Penning], basically spilled [her] guts." She also testified that she omitted the other details about Penning because Schoenfelder told her to write "a quick summary" about the meeting-prompting events of August 11, 16, and 17.

On August 22, 2016, Penning hovered close to Lopez's workspace and stared at her for an hour. Lopez called an unidentified HR employee to note "that [she] felt like [Penning] was retaliating" and that "he was angry[.]" She expressed discomfort and a desire to leave the BIR line, including by "tak[ing] any position they would give" her. The HR employee asked "are you sure you're not overreacting?" From that moment, Lopez "knew that [she] did not have anybody on [her] side."

The next day, when Penning stared at her again for forty-five minutes with a "pissy face," Lopez did not report his conduct. But after the second hovering day, Lopez resigned in a voicemail. She testified that she did not "feel safe there anymore, and [she] didn't want to work in a place where [she] felt like [she] had to worry all the time[.]" She "doubt[ed]" mentioning "Penning" or "sex harassment" in her voicemail.

After resigning, Lopez sued Whirlpool for sex discrimination and retaliation in violation of Title VII of the Civil Rights Act and the Iowa Civil Rights Act ("ICRA").

During discovery, the parties had trouble scheduling Lopez's deposition. Without repeating the district court's thorough fact recitation, we note that Whirlpool spent time and money on multiple depositions that never occurred. Whirlpool noticed the first deposition for a Tuesday and its counsel travelled from Chicago to Cedar Rapids for a Tuesday-through-Thursday stay. On Tuesday morning, Lopez's counsel's cited snow in asking to reschedule for Thursday. On Wednesday afternoon, he asked to reschedule again because, although "[b]ased on prior conversations, [he] had assumed [his] client would be available" for Thursday, "she [w]as not available" on that date.

Based on that incident and other delays, before discovery closed, Whirlpool moved to sanction Lopez's counsel and to extend certain deadlines. In support, Whirlpool invoked 28 U.S.C. § 1927 (allowing courts to hold attorneys liable for excessive costs) and the court's "inherent power" to sanction. The magistrate judge imposed a $2,000 sanction against Lopez's counsel and allowed Whirlpool to depose Lopez. The magistrate judge concluded that Lopez's counsel insufficiently explained why the deposition could not have occurred on Whirlpool's first three-day trip. Relying on Fed. R. Civ. P. 37(d)(3), the district court upheld the magistrate judge's order.

After deposing Lopez, Whirlpool moved for summary judgment on all counts. In granting that motion, the district court reasoned that Lopez could not prove a prima facie case on either sex discrimination or retaliation. Lopez appeals the sanctions and summary judgment orders.

II. Discussion

We review a district court's grant of summary judgment de novo, viewing the evidence in the light most favorable to Lopez as the nonmoving party and granting all reasonable inferences in her favor. Paskert v. Kemna-ASA Auto Plaza, Inc. , 950 F.3d 535, 538 (8th Cir. 2020). "[B]ecause [Lopez] presents no separate arguments under the ICRA, which was modeled after Title VII ..., we address her state civil rights claims together with her Title VII claims." Id. We apply a deferential abuse-of-discretion review to a district court's "decision to impose a sanction, the nature of the sanction imposed, and the factual basis for the court's decision." Chrysler Corp. v. Carey , 186 F.3d 1016, 1019 (8th Cir. 1999).

A. Hostile Work Environment

To recover on a claim for a hostile work environment based on co-worker harassment, 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." Blomker v. Jewell , ...