Tenge v. Phillips Modern Ag Co.

• Decision Date: 28 April 2006
• Docket Number: No. 05-2803.,05-2803.
• Citation: 446 F.3d 903
• Parties: Maelynn TENGE, Plaintiff-Appellant, v. PHILLIPS MODERN AG CO.; Scott Phillips, Individually and in his official capacity; Lori Phillips, Individually, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

446 F.3d 903

Maelynn TENGE, Plaintiff-Appellant, v. PHILLIPS MODERN AG CO.; Scott Phillips, Individually and in his official capacity; Lori Phillips, Individually, Defendants-Appellees.

No. 05-2803.

United States Court of Appeals, Eighth Circuit.

Submitted: March 14, 2006.

Filed: April 28, 2006.

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Richard D. Stochl, argued, New Hampton, Iowa, for appellant.

Gregory M. Lederer, argued, Cedar Rapids, Iowa (Leonard T. Strand, Cedar Rapids, Iowa, on the brief), for appellees.

Before COLLOTON, JOHN R. GIBSON, and GRUENDER, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Maelynn Tenge appeals from the district court's¹ grant of summary judgment to Phillips Modern Ag Company and Scott Phillips on her claims of sex discrimination in violation of Title VII of the Civil Rights Act of 1964 and the Iowa Civil Rights Act, and to Lori Phillips on Tenge's claim of tortious interference with a business relationship. The district court held that Tenge failed to establish a prima facie case of sex discrimination and ruled that Tenge had not generated a factual dispute as to whether Lori Phillips had improperly interfered with Tenge's employment. We affirm.

I.

We state the facts in the light most favorable to Tenge. Phillips Modern Ag Company is owned and operated by Scott Phillips, whose wife Lori is also involved with the company. Tenge first began working for the company in 1993 as a secretary, but she gradually assumed more responsibility and eventually became the highest paid employee. For the entire period of her employment, Tenge was an at-will employee. As a result of her position in the company, Tenge worked closely with Scott on a regular basis. Scott said that he was always satisfied with her work performance and that she never failed to perform an assigned task. However, around 2002, Lori began to believe that Scott and Tenge were involved in a romantic relationship, and she grew concerned that Tenge was attempting to seduce Scott.

When asked during her deposition whether she had engaged in any intimate or sexual activity with Scott, Tenge admitted to two instances of touching that occurred in Lori's presence. On one occasion, Tenge and her husband were at a bar with Lori, Scott, and other co-workers. Tenge admitted that she "pinch[ed] [Scott] in the butt in fun" and that she did not care whether Lori saw it. On the second occasion, they were at a concert with their spouses, and Tenge testified that Scott "pinched me in the butt and grabbed my hand ... and just kind of like flung it, but that was just a quick instant." A few days later, Scott told Tenge that Lori was upset about them touching each other. At her deposition, Tenge agreed that this was physical contact that was suggestive and of a risqué nature, and that Lori could have suspected the two had an intimate relationship.

Tenge also testified that she wrote notes of a sexual or intimate nature to Scott some five to ten times. She stated that she put these notes in a location where other people could see them, even though she was not getting along with Lori and she knew that Lori might have the power to fire her. Indeed, Lori found one of these notes in the company dumpster, pieced it together, and reacted by terminating Tenge's employment in November 2002. Tenge admitted that if a person other than she or Scott had read the note, he or she would conclude that Tenge was interested in engaging in intimate sexual behavior with Scott. Although Scott reinstated Tenge and the two agreed that she would continue to work as an at-will employee beyond the end of the calendar year, he ultimately dismissed her on February 17, 2003. Tenge testified that Scott told her that Lori was "making me choose between my best employee or her and the kids."

Tenge filed charges of employment discrimination on the basis of sex with the Iowa Civil Rights Commission and the Equal Employment Opportunity Commission, and she received right to sue letters. She subsequently filed a complaint in the United States District Court for the Northern District of Iowa against Phillips Modern, Scott, and Lori, alleging, inter alia, employment discrimination on the basis of sex in violation of Title VII of the Civil Rights Act of 1964 and the Iowa Civil Rights Act, as well as a state law claim for tortious interference with a business relationship against Lori.² The district court granted summary judgment in favor of Phillips Modern, Scott and Lori on these claims.

We review the district court's grant of summary judgment de novo and may affirm on any basis supported by the record. Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1043 (8th Cir.2005). Summary judgment is proper when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue of material fact for trial, and the moving party is entitled to judgment as a matter of law. Fed R. Civ. P. 56(c).

II.

Tenge argues that she was terminated because she is a woman in violation of Title VII of the Civil Rights Act, which makes it unlawful for an employer to discriminate against an employee on account of that individual's sex. 42 U.S.C. § 2000e-2(a)(1).³ An employee's Title VII claim for sex discrimination can survive summary judgment in one of two ways. First, the employee can produce direct evidence of discrimination that demonstrates "a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action." Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004). Alternatively, an employee can use the McDonnell Douglas burden-shifting framework to establish an inference of unlawful discrimination. Turner v. Gonzales, 421 F.3d 688, 694 (8th Cir.2005).

Tenge first argues that Scott's statement that he had to choose between his best employee and his marriage is direct evidence of sex discrimination. She claims that arousing the jealousy of the boss's wife is an illegal criterion for discharge under Title VII. Tenge admits that she engaged in sexual conduct with Scott that could have led Lori to suspect an inappropriate relationship. Thus, we are not presented with a situation where an employee has engaged in no sexually suggestive behavior, but is terminated simply because an employer or supervisor's spouse perceives the employee to be a threat. Nor does Tenge claim that the conduct arose in the context of a hostile work environment or due to unwelcome advances from Scott. As a result, this case presents the limited question of whether Title VII's prohibition on discrimination on the basis of "sex" includes a termination on the basis of an employee's admitted, consensual sexual conduct with a supervisor. Although this circuit has not yet decided a case presenting this specific legal question, for the reasons stated below, we conclude that it is not illegal under Title VII for an employer to discharge an employee on such grounds. Consequently, Scott's stated reason for terminating Tenge cannot amount to direct evidence of sex discrimination.

The word "sex" was not added to Title VII until shortly before the bill was passed, so there is "little legislative history to guide us in interpreting the Act's prohibition against discrimination based on `sex'." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). However, it is clear that in enacting Title VII, Congress aimed to eliminate the entire spectrum of disparate treatment of men and women in the workplace. Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 707 n. 13, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978). Accordingly, in interpreting the meaning of "sex discrimination," the Supreme Court has expanded Title VII's reach beyond simply prohibiting employers from making distinctions between employees based on their gender. Meritor, 477 U.S. at 64-65, 106 S.Ct. 2399. Title VII now prohibits both quid pro quo harassment, where an employee's submission to or rejection of a supervisor's unwelcome sexual advances is used as the basis for employment decisions, and hostile work environment harassment, where "the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (quotations omitted). As Tenge does not raise either type of sexual harassment claim, we must consider whether Title VII is implicated when distinctions are made in the workplace based on an employee's admitted, consensual sexual conduct with a supervisor in a non-hostile working environment. There are two lines of cases relevant to this inquiry.

First, many appellate courts have addressed cases of "sexual favoritism," where one employee was treated more favorably than members of the opposite sex because of a consensual relationship with the boss. Faced with such a scenario, the Second Circuit rejected a Title VII claim brought by the disadvantaged group, holding that "[t]he proscribed differentiation under Title VII ... must be a distinction based on a person's sex, not on his or her sexual affiliations." DeCintio v. Westchester County Med. Ctr., 807 F.2d 304, 306 (2d Cir.1986). The court reasoned that the male employees "were not prejudiced because of their status as males; rather, they were discriminated against because [the supervisor] preferred his paramour." Id. at 308. After this decision, other appellate courts have uniformly followed this reasoning in similar cases. See, e.g., Schobert v. Illinois Dep't of Transp., 304 F.3d 725, 733 (7th Cir.2002) ("Whether the employer grants employment perks to an employee because she is a protege, an old friend, a close relative or a love interest, that special treatment is...