Denise Blomker v. Sally Jewell
2016 U.S. App. LEXIS 14386
| 8th Cir. | 2016Background
- Denise Blomker, a federal employee, sued the Department of the Interior pro se alleging hostile-work-environment sexual harassment and retaliation after disciplinary actions and eventual termination.
- She alleged seven incidents by two male coworkers over ~3 years (comments, close stands, alleged erection, and crotch‑picking behavior); no allegation of sexual touching in the complaint.
- The Department issued a removal letter citing (among other things) Blomker’s profane insults to a supervisor, grabbing/twisting a supervisor’s arm, copying others on emails after orders not to, and prior discipline; the letter mentioned her threats to file EEO claims but emphasized the assault and prior record.
- The Department moved to dismiss under Fed. R. Civ. P. 12(b)(6) (and argued failure to exhaust); the district court dismissed the harassment and retaliation claims on the merits and declined to decide exhaustion.
- The Eighth Circuit affirmed dismissal: (1) the harassment allegations were not sufficiently severe or pervasive to state a hostile‑work‑environment claim as a matter of law; (2) Blomker failed to plausibly plead that protected activity was the but‑for cause of her termination because the removal letter shows independent grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether complaint plausibly alleges hostile‑work‑environment sexual harassment | Blomker: seven incidents over ~3 years amount to severe or pervasive harassment | Dept.: incidents are isolated/insufficiently sexual or severe to alter employment conditions | Dismissed — allegations fail the objective/severe‑or‑pervasive standard |
| Whether conduct alleged was "based on sex" and affected a term/condition of employment | Blomker: conduct was sexualized and altered working conditions | Dept.: conduct was not definitively sexual or sufficiently harmful to affect terms/conditions | Dismissed — fourth element (term/condition) not satisfied |
| Whether retaliation pleaded with required causation (but‑for cause) | Blomker: removal letter spec references to her EEO threats show retaliation | Dept.: removal letter also lists nondiscriminatory, serious misconduct and prior discipline supporting termination | Dismissed — complaint shows on its face nondiscriminatory reasons, failing to plausibly allege but‑for causation |
| Whether exhaustion of administrative remedies required here (court decision) | Blomker: alleged she filed EEO complaints and sought right‑to‑sue; exhaustion issue not resolved | Dept.: argued failure to exhaust administratively | Not reached — appellate court affirmed on merits and did not decide exhaustion |
Key Cases Cited
- Braden v. Wal‑Mart Stores, Inc., 588 F.3d 585 (8th Cir. 2009) (pleading standard for pro se complaints at motion to dismiss stage)
- Schmedding v. Tnemec Co., 187 F.3d 862 (8th Cir. 1999) (elements of hostile‑work‑environment claim)
- Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787 (8th Cir. 2009) (objective and subjective components of the fourth element)
- Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) (standard for severe or pervasive harassment)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility pleading standard)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading must state a plausible claim for relief)
- Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72 (2d Cir. 2015) (but‑for causation requirement for Title VII retaliation)