Quick v. Donaldson Co., Inc., 95-3387

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore BEAM and MURPHY; MURPHY; NANGLE
Citation90 F.3d 1372
Parties71 Fair Empl.Prac.Cas. (BNA) 551, 68 Empl. Prac. Dec. P 44,184, 65 USLW 2086 Phil QUICK, Appellant, v. DONALDSON COMPANY, INC., Appellee.
Docket NumberNo. 95-3387,95-3387
Decision Date23 September 1996

Page 1372

90 F.3d 1372
71 Fair Empl.Prac.Cas. (BNA) 551,
68 Empl. Prac. Dec. P 44,184, 65 USLW 2086
Phil QUICK, Appellant,
No. 95-3387.
United States Court of Appeals,
Eighth Circuit.
Submitted April 11, 1996.
Decided July 29, 1996.
Rehearing and Suggestion for Rehearing
En Banc Denied Sept. 23, 1996. *

Page 1374

Victoria Louise Herring, Des Moines, IA, argued, for appellant.

Randy G. Millard, argued (Stephen T. Brenneke, on brief), Minneapolis, MN, for appellee.

Before BEAM and MURPHY, Circuit Judges, and NANGLE, ** District Judge.

MURPHY, Circuit Judge.

This case raises hostile environment sexual harassment claims based on allegations that male co-workers physically and verbally harassed Phil Quick for two years and that his employer, Donaldson Company, Inc. (Donaldson), knew of the harassment but failed to respond with proper remedial action, in violation of Title VII, 42 U.S.C. § 2000e-2(a)(1), and the Iowa Civil Rights Act, Iowa Code Chapter 216. The district court granted summary judgment to Donaldson, and Quick appeals from that judgment. We reverse and remand.


Phil Quick joined Donaldson in January 1991 as a welder and press operator in its muffler production plant in Grinell, Iowa. About eighty-five percent of the 279 employees at the plant are male. Quick claims he was the workplace victim of "bagging," physical assault, and verbal harassment, including taunting about being homosexual. 1 He asserts that he has an action under Title VII and state law for sex discrimination based on sexual harassment in a hostile work environment.

Quick alleges that at least twelve different male co-workers bagged him on some 100 occasions from January 1991 through December 1992. "Bagging" is defined in the record in various ways, but typically involved an action aimed at a man's groin area. According to Quick, bagging meant the intentional grabbing and squeezing of another person's testicles. Supervisor Roger Daniels explained that one man would walk past another and make a feinting motion with his hand toward the other's groin. Daniels stated bagging was widespread, that people in a variety of departments participated in it, and that he himself had bagged others. Supervisor Brett Musgrove, who first observed the practice at Donaldson in approximately 1987, referred to it as a flicking gesture towards a man's genitals to startle him. Plant manager Harold Schoen became aware in 1981 that bagging occurred at the plant, which he described as a hand motion toward an employee's groin area. Schoen said he warned Quick when he was hired in 1991 that it could happen to him.

Other employees testified in deposition that bagging involved hitting another's testicles or upper thigh or snapping someone in the groin area. The record does not contain any incidents of a female plant employee being bagged, but it does reveal that in August 1993 a woman employee refused a male supervisor's request to bag him.

The majority of the 100 bagging incidents involving Quick occurred between January

Page 1375

and September of 1991. During this time, Quick also saw at least one other male employee being bagged every day. In August 1991, Quick complained to supervisor Daniels about being bagged. No remedial action was taken by Daniels or Donaldson. After Daniels observed employees bag Quick on several occasions, Quick says Daniels told him that the next time somebody bagged him "to turn around and bag the shit out of them." The bagging incidents decreased after Quick was transferred to another department on September 3, 1991. Between that time and December 1992, Quick was bagged by a male co-worker on some six occasions.

Sometime during the fall of 1992, Schoen, the plant manager, instructed the supervisors to stop the bagging actions and reviewed with them the company's written sexual harassment policy. According to supervisor Musgrove, each supervisor then reviewed that policy with department employees and explained why the practice could not continue. One employee, David Ashburn, also stated that Donaldson circulated a memo around that time saying that bagging was harassment. After this, the bagging apparently ended.

Quick also claims that male co-workers assaulted him on two occasions. On August 23, 1991, one worker held Quick's arms, while another grabbed and squeezed Quick's left testicle, producing swelling and bruising. After Quick reported the assault to Daniels, Donaldson fired the employee who had held Quick's arms, but took no action against the other worker. The second assault occurred on September 13, 1991, when a co-worker punched Quick in the neck during an argument over a broken machine. Quick reported this incident to his supervisor at that time, Brett Musgrove, who did not react.

Quick alleges in addition that he was verbally harassed and falsely labeled a homosexual. Male employees placed tags on Quick's forklift and belt loop which referred to a sexual act with a cucumber and stated "Pocket Lizard Licker" and "Gay and Proud." In December 1992, a male co-worker wrote "queer" on Quick's work identification card. Quick showed the inscription to his new supervisor, Daryl Marks, who did nothing. Finally, in June 1993, while Quick was at a local bar, a co-worker called him a "fucking scab" for having withdrawn his union membership.

As a result of these actions, Quick obtained medical and psychological treatment, which he asserts will continue in the future. He currently experiences a bobbing sensation in his left testicle due to the alleged assault and battery in August 1991.

In August 1993, Quick filed a charge of discrimination with the Iowa Civil Rights Commission, as well as a state tort action against Donaldson, Roger Daniels, and Brett Musgrove, alleging injuries due to the verbal and physical assaults by his co-workers and supervisors. Quick amended his complaint in January 1994, adding two counts of sexual discrimination by Donaldson in violation of Title VII and the Iowa Civil Rights Act. 2 Defendants removed the case to federal court in February 1994, and discovery began. The parties consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Donaldson filed a motion for summary judgment in May 1995 on all claims, as did Musgrove and Daniels.

On August 4, 1995, the magistrate judge granted summary judgment for Donaldson on Quick's federal and state sex discrimination claims and on a state law claim regarding a blood test it had ordered for Quick. The remaining state law claims against Donaldson and his two supervisors were dismissed without prejudice. 3

The court reached a number of legal conclusions in the process of ruling on Donaldson's motion on the sex discrimination claim. It held that Title VII protects a male employee from discriminatory sexual harassment only where he can show an anti-male or

Page 1376

predominantly female environment making males a disadvantaged or vulnerable group in the workplace and treating female employees differently and more favorably. Applying this test and ruling that only discrimination of a sexual nature is actionable under Title VII, the court dismissed his claim under the federal statute. It said there was no evidence that Donaldson had an anti-male or predominantly female environment, that females were treated differently, or that the bagging actions were sexual in nature. Although it acknowledged that Quick had been subject to unwelcome harassment by his co-workers, it found the cause was personal enmity or hooliganism, not his sex. The court also dismissed the state civil rights claim on the basis that Iowa courts would apply a similar test to the one used under Title VII.

On appeal, Quick argues that the magistrate judge employed an incorrect standard to judge his federal and state sex discrimination claims and that summary judgment was inappropriate because of disputed material facts. In addition, he contends that his state civil rights claim should be permitted to proceed in the Iowa courts in any event.


Quick argues that summary judgment was granted on his Title VII claim based on an erroneous understanding of the law. Quick asserts that Title VII prohibits workplace sex discrimination against any individual, regardless of whether that person is part of a minority group. It was therefore error to rule that male employees are protected under Title VII only if they are members of a disadvantaged or vulnerable group, requiring proof of an anti-male work environment. He maintains it was also wrong for the district court to conclude that the harassment was not "of a genuine sexual nature" and not based on his sex. Quick reasons that since bagging at Donaldson was directed only at the area of male sexual organs, he would not have been subjected to it but for being male. He points to the absence of any evidence of female employees being bagged.

Donaldson apparently does not dispute that bagging was a pervasive practice at the plant, that Quick was bagged numerous times, that management was aware of it, and that it failed to take immediate and appropriate remedial action. It agrees with the district court, however, that harassment between heterosexual males is not actionable under Title VII unless the plaintiff can show an anti-male work environment. 4 Donaldson asserts that Quick failed to show such an environment because other males viewed bagging as mere horseplay. It notes that the only evidence that males were the sole targets of bagging was Quick's deposition testimony that he was unaware of any female employees being bagged. Donaldson argues Quick was harassed not because he is a male, but rather because he was unpopular. It concludes that the district court properly dismissed Quick's Title VII claim.

A party is entitled to judgment as a matter of law only if it can show that no genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby...

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