Lauren M. Hales, Plaintiff - Appellant v. Casey‘s Marketing Company, Defendant - Appellee
No. 16-3770
United States Court of Appeals For the Eighth Circuit
April 3, 2018
Before WOLLMAN and SHEPHERD, Circuit Judges, and GOLDBERG, Judge.
Appeal from United States District Court for the Southern District of Iowa - Davenport
Submitted: October 19, 2017
Filed: April 3, 2018
Before WOLLMAN and SHEPHERD, Circuit Judges, and GOLDBERG,1 Judge.
Lauren Hales sued her former employer, Casey‘s Marketing Company (Casey‘s), for hostile work environment sexual harassment (hostile work environment) and retaliatory termination in violation of Title VII of the Civil Rights Act of 1964,
Eighteen-year-old Hales was employed at Casey‘s Summer Street store in Burlington, Iowa, from April 9, 2013, through May 31, 2013. On May 28-29, 2013, Hales worked the 9:00 p.m to 5:00 a.m. shift at Casey‘s West Avenue store, also located in Burlington, Iowa. This was her second time working at this location.
At approximately 1:44 a.m. on May 29, a male customer entered Casey‘s West Avenue store, where he stayed for approximately twenty-two minutes. Hales had never met this customer before. The customer purchased some items and began speaking with Hales, asking her if she had a boyfriend and if she worked at the West Avenue location often. He also made comments about her appearance. The customer told Hales about where he lived, where he worked, what kind of vehicle he drove, that there was a dashboard camera on his vehicle, and, using a sexually suggestive tone, that he liked to film things.
In an attempt to “elude” the customer, Hales decided that she was going to go outside to smoke a cigarette. She asked a co-worker to keep an eye on her because a customer had been “hitting on her.” The co-worker asked Hales why she was going outside if the customer was still in the store and suggested that Hales should just ask him to leave. Hales responded that she could take care of herself.
The customer followed Hales outside and blocked the entrance to the store. Hales asserts that after the customer said that “his girlfriend calls him when it‘s raining outside to tell [him] how wet she is, [but that] that‘s his job,” Hales told him to “back off.” The customer replied, “What are you going to do about it?” In response, Hales extended her cigarette towards the customer in an attempt to make him move away. The customer instead stepped toward Hales and burned his left arm on her cigarette. The customer recoiled and then reentered the store, followed by Hales.
The customer returned to the Casey‘s West Avenue store the next day and reported that Hales had burned him with a cigarette. The West Avenue manager thereafter reviewed the surveillance tapes, and informed the Summer Street location manager about the incident between Hales and the customer.
On June 27, 2013, and February 10, 2014, Hales filed a complaint with the Iowa Civil Rights Commission (ICRC), arguing that her termination was based on discrimination and in retaliation for resisting sexual harassment. The complaint was cross-filed with the Equal Employment Opportunity Commission (EEOC). On June 1, 2014, Hales requested separate administrative releases from the ICRC and the EEOC. The ICRC issued Hales an administrative release letter on her ICRA complaint on June 4, 2014. The EEOC mailed Hales a Dismissal and Notice of Rights on her retaliation claim on September 24, 2014. It mailed Hales a Dismissal and Notice of Rights on her hostile work environment claim on October 8, 2014, which she received on October 13, 2014. The EEOC‘s letters stated that a lawsuit ”must be filed WITHIN 90 DAYS of your receipt of this notice, or your right to sue based on this charge will be lost.” (emphasis in original). The EEOC sent copies of the letter to James Hales (Mr. Hales), who is Hales‘s father as well as her attorney. Both sets of letters were sent to the same residential address, because Hales lived there with her father from June 2014 to September 2014.2
Hales filed suit in federal district court on January 7, 2015. Casey‘s moved to dismiss under Rule 12(b)(6) arguing that Hales‘s ICRA claim was time-barred because it was filed outside the statutory filing period. See
Hales sought to introduce evidence that she had previously been sexually assaulted, along with testimony from her counselor that Hales had been undergoing therapy in order to learn to have a voice and be “empowered” to resist sexual assaults. The district court granted Casey‘s motion in limine and motion to exclude expert opinion and testimony, concluding that evidence of Hales‘s previous sexual assaults was not relevant to her hostile work environment and retaliation claims.
Thereafter, Casey‘s moved for summary judgment. The district court determined that the hostile work environment claim failed as a matter of law because Hales did not show “severe or pervasive harassment affecting a term or condition of her employment.” Hales v. Casey‘s Mktg. Co., No. 3:15-CV-00004-RGE, at 19 (Aug. 17, 2016). The court also concluded that in light of the circumstances, Casey‘s was not liable for the customer‘s conduct. Hales argued that the customer‘s conduct should be imputed to Casey‘s because Casey‘s had knowledge of the customer‘s previous inappropriate conduct and had failed to take remedial action. The district court disagreed, concluding that upon receiving a previous report that this same customer had made sexual comments to female employees,
The court also determined that Hales‘s retaliation claim failed both procedurally and on the merits. Procedurally, the court ruled that the claim was time-barred because it was filed outside the EEOC‘s ninety-day limitation period and Hales had failed to establish any reason why the limitation period should be tolled. The court further concluded that Hales‘s retaliation claim would fail on the merits because she was not engaged in activity protected under Title VII.
I.
A. ICRA Claim
Hales argues that the district court should have found Iowa‘s ninety-day filing period to be equitably tolled because the EEOC‘s right-to-sue letter was not issued until after the ICRA statutory filing period had expired. We review the grant of a 12(b)(6) motion to dismiss de novo. Schmedding v. Tnemec Co., Inc., 187 F.3d 862, 864 (8th Cir. 1999).
Hales concedes that absent tolling, her ICRA claim was untimely filed. But she argues that if the ICRA filing deadline is not equitably tolled during the pendency of an EEOC review she would be estopped from bringing her federal claim in federal court because both claims arose from a common nucleus of fact. The Supreme Court rejected a similar argument in Johnson v. Railway Express Agency, Inc., 421 U.S. 454 (1975), holding that the filing of a Title VII claim with the EEOC does not toll the statute of limitations in an action arising under
Following the Supreme Court‘s rationale in Johnson, we conclude that the pendency of an EEOC review does not toll a state civil rights claim and that Hales‘s ICRA claim is thus time-barred. Because we hold that Hales‘s retaliation claim is time-barred, we need not address her evidentiary arguments regarding that claim.
B. Hostile Work Environment
Hales argues that her hostile work environment claim should have survived summary judgment because the customer‘s conduct was severe enough to affect a term or condition of her employment and because Casey‘s failed to take sufficient
We review the district court‘s grant of summary judgment de novo. Henthorn v. Capitol Commc‘ns, Inc., 359 F.3d 1021, 1024 (8th Cir. 2004). Summary judgment is proper if, when viewing the evidence in a light most favorable to the non-moving party, no genuine issue of material fact exists and the nonmoving party is entitled to judgment as a matter of law. Id. at 1026. Mere allegations that are not supported by specific facts are insufficient to establish a genuine issue of material fact and will not withstand a summary judgment motion. Id.
To prevail on a hostile work environment claim, a plaintiff must prove the following five elements: (1) that she is a member of a protected group; (2) that she was the subject of unwelcome sexual harassment; (3) that a causal nexus existed between the harassment and protected group status; (4) that harassment affected a term, condition, or privilege of employment; and (5) that her employer knew or should have known of the harassment and failed to take prompt and effective remedial action. Klein v. McGowan, 198 F.3d 705, 709 (8th Cir. 1999). The fourth element includes both subjective and objective components. Blomker v. Jewell, 831 F.3d 1051, 1056 (8th Cir. 2016). In order to show that the harassment affected a term or condition of employment, “the conduct must be sufficiently severe or pervasive to create an environment that a reasonable person would find hostile or abusive and that actually altered the conditions of the victim‘s employment.” Crist v. Focus Homes, Inc., 122 F.3d 1107, 1111 (8th Cir. 1997).
Hales argues that an isolated incident may be sufficient to establish an effect on an employee‘s work condition. While this might be true in an “extremely serious” incident, the incident in this case does not meet the demanding standard set forth in the case law. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); see also Alagna v. Smithville R-II School Dist., 324 F.3d 975, 980 (8th Cir. 2003) (holding that a male teacher‘s touching a female teacher, telling her that he loved her, and acting inappropriately for two years was not sufficiently severe to satisfy a claim for hostile work environment sexual harassment). During the incident at Casey‘s, the customer never touched or overtly threatened Hales. Although Hales claims she felt threatened, she has failed to make a sufficient showing that the customer‘s conduct was so severe or pervasive as to affect a term, condition, or privilege of her employment. As a result, we conclude that Hales‘s work environment was not so offensive as to be objectively hostile. See Alagna, 324 F.3d at 980-81.
Hales has also failed to show that Casey‘s knew of the customer‘s harassing conduct but failed to take remedial action. An employer‘s liability turns on whether the employer was aware of the conduct and whether it took appropriate action to remedy the circumstances in a timely and appropriate manner. See Crist, 122 F.3d at 1111. When Casey‘s received the first complaint from the other female employees, it took immediate action, telling the customer that he would be banned from the store and that the police would be called if his behavior continued. Accordingly, because Hales fails to satisfy both the fourth and fifth elements required under a Title VII hostile work environment claim, the district court correctly granted summary judgment in favor of Casey‘s.3
Hales‘s reliance on Oncale is misplaced, however, for the social context inquiry Oncale says should be examined relates to whether a reasonable person would find the harassment so severe that it would affect a term or condition of employment. It does not, as Hales suggests, require courts to delve into a plaintiff‘s personal background when assessing the objective severity of harassment. Thus, we conclude that the district court did not abuse its discretion in excluding the evidence as irrelevant under
C. Retaliatory Discrimination
Hales also maintains that the district court erred in granting summary judgment in favor of Casey‘s because her retaliation claim was timely filed based on when she received the EEOC‘s administrative release letter.
Title VII allows an aggrieved party to bring a civil action within ninety days after notice of dismissal is given by the EEOC. See
“Generally, the ninety-day filing period begins to run on the day the right to sue letter is received at the most recent address that a plaintiff has provided the EEOC.” Hill v. John Chezik Imps., 869 F.2d 1122, 1124 (8th Cir. 1989). It is presumed that a plaintiff will receive the notice three days after the mailing date.
Hales claims that she did not receive her right to sue letter related to her retaliation claim until June 3, 2015, but she has offered no evidence to support this claim, and she does not explain why she filed her suit six months before that date. She cites her third amended complaint, which alleges that the letter arrived on June 3, 2015, as well as her father‘s February
The judgment is affirmed.