Terri Pedroza v. Cintas Corp. No. 2

PEDROZA, Appellant, Terri Plaintiff — Pedroza, Plaintiff, David 2, doing NO. CORPORATION

CINTAS Corporation; as Cin

business Cintas Sponsor Corporation, and Admin

tas Corporation of The Cintas

istrator Plan, Defen Benefit

Partner Medical Appellees.

dants —

No. 03-1407. Appeals, States Court

United

Eighth Circuit. Dec. 2003.

Submitted: 11, 2005.

Filed: Feb. Carolyn King

Stuart H. Sue Chris- MO, man, Springfield, appellant. III, Vering John V. P. Jennifer MO, Kyner, City, appellee. Kansas BEAM, MELLOY, Before COLLOTON, Judges. Circuit MELLOY, Judge. Circuit Terri appeals Pedroza the district grant summary judg- court’s1 adverse of ment on her sexual same-sex discrimina- tion claims under Title VII and the Mis- Human Act. Rights souri Because she present failed to sufficient evidence to genuine question demonstrate a of materi- fact allegedly al as to whether the discrim- inatory sex, behavior was based on we grant affirm the district court’s of sum- mary judgment on her hostile work envi- Consequently, ronment claim. we also af- firm the district court’s dismissal of her retaliation, discharge, constructive “punitive damages” claims.

I. (“Cintas”) Cintas Pe- Corporation hired Springfield, to work at droza its Missouri facility on July promoted 1998. Cintas position of “team leader” after few months. leader is a nonsupervi- Team sory position involves some direction and coordination coworkers. She initially “pants department” worked eventually hang- in the but worked “shirt ing department” well. According as psychologist, Pedroza’s expert own witness person” Pedroza is a “concrete who has difficulty understanding the subtleties non-literal communication such as sarcasm suggest whose test scores intelligence mental borderline retardation. Dorr, 1. The Honorable Richard E. United of Missouri. Judge District States for the Western District In early all June Pedroza asked The instances one Straw for assistance on a work-related the actions of female cowork- relate to over, leader, In bent response, Pam As matter. Straw er, team Straw. another Pedroza, pointed her own buttocks numerous coworkers wit- early as buttocks, and Pe- rubbed her own and told Pedro- between Straw arguments nessed za, In droza, was “friction” “Kiss it Terri. You love it.” late claimed that there June, grabbed again claimed Pedroza’s face. Straw Straw between again repeatedly Believing attempting Straw was the two “butted women her, jerked away. When “bickered” with raised voices. kiss heads” and away, fact, jerked others that ceased her told Straw In said, “Kiss attempt my the first and ass.” Pedroza good a team leader before was not reported this incident to her immediate place. instance of harassment took said, supervisor, that Anderson reported Straw Garrett Anderson. One coworker if she told Pedroza that he would take care it. [Pedroza] it would be better “Well doing so she tell what she could knew was summer, Throughout Straw re- addition, In how it.” when girls to do Pedroza, at peatedly kisses used foul blew in the found work of Pe- Straw mistakes Pedroza, language around and rubbed her members, brought she droza’s team looking own while at buttocks Pedroza. the team directly mistakes to members complained Pedroza of this behavior on Pedroza, argues to as Pedroza rather than weekly reports gave several that she to appropriate. have been would coworker, Watkins. Another Donna Lew- is, much of According to Straw’s harass- witnessed Straw’s behavior and mid-May reported management this behavior to ing began behavior reported behalf. to Hu- through September continued when Pedroza’s Lewis resigned. mid-May, In at- man Rhonda Braker Pedroza Straw Resources Director grabbed to hand Pe- that and tried to kiss Pe- tempted hold Pedroza’s when Straw grandson pictures people of her to droza and that talked about “which droza showed way swung.” recoiled and asked [Straw] Straw. When Pedroza said, “You stop, to want me Straw Straw reported Pedroza claims that she also then you, honey?” grabbed Straw kiss actions to and told Braker Straw’s Braker attempted to Pedroza’s face and kiss her blowing that “Pam out there kisses jerked away on the mouth. Pedroza me, doing me and all these gestures Straw’s wet landed Pedroza’s kiss professional.” it’s not also Pedroza claims stated, it, “You cheek. Straw then love that when she told Braker Straw’s behav- honey.” immediately to the Pedroza went uncomfortable, ior her Braker made re- Russ Springfield Manager, Plant Watkins. sponded, boys already taking “the are care told that the behavior Watkins Pedroza of it.” Because Straw’s actions continued simply was personality. Straw’s management not any Pedroza did see response, secretly taped Pedroza also that on later occa- Pedroza a conver- claims sion, said, approached tape Straw her “Ter- sation with Braker. The reveals that ri, you’re today. you awfully quiet Didn’t Pedroza did mention the fact Straw blowing had get piece night?” last been kisses at Pedroza. ass however, Braker, responded telling “go Straw to home to testified at Pedroza’s un- did employment hearing her husband.” then told Pedroza that Pedroza Straw said, complain directly she didn’t have a husband and “I her about Straw and you, honey.” complaints want she learned Pedroza’s through investigation an that Watkins con- separate claim that she characterized as a ducted. punitive claim for damages alleging that Cintas acted with a disregard conscious July, Near the end of again Straw blew federally protected her rights. Pedroza stated, “Pam, kisses at Pedroza. Pedroza argued that Straw’s actions were based on don’t do that. That is sexual harassment.” sex they gender because were specific and To which replied, up. Straw “Write me motivated homosexual desire. Howev- it, you You love know it. me up.” Write er, when deposition asked her whether Near the end of August, Straw asked Pe- if lesbian, she knew Straw awas temporarily droza to let Straw borrow a know, admitted that she did not stating, “I worker from Pedroza’s team. After Pe- don’t way know which she may go. droza agreed, again grabbed She Pedro- face, time, go want to I ways. za’s and this both don’t kissed Pedroza on know.” (Pe- said, After ya the cheek and “I certain evidence was honey.” love excluded droza reported appeal any this incident does not evidentiary rul- Anderson and said that ings), she had to leave the remaining evidence that Pedroza work because simply she could not handle cited to support theory that Straw’s the stress over Straw’s behavior. Pedroza harassing behavior by was motivated ho- then left work use vacation time. desire, mosexual and therefore based on (1) sex, was arguably the sexual nature of vacation, on

While Pedroza received a the offensive acts (repeatedly themselves Smith, call from Cliff the Manager General attempting to kiss Pedroza on the mouth Springfield facility. the Smith asked cheek, or grabbing face, Pedroza the Pedroza to return to work for a meeting hand, stroking Pedroza’s and making sug- with Braker. At this meeting, which Pe- comments) (2) gestive Smith’s state- secretly recorded, droza Smith said he did ment that Pedroza needed to be more Straw, open not want to lose Pedroza or he minded about other people’s lifestyles. It thought it had all pro- been “blown out of undisputed is portion,” friction,” Straw had five “we’re tired of the children marriage Pedroza a former open needed to be “more and was in a long- minded term, live-in, people’s lifestyles.” other heterosexual relationship boyfriend. with her There was no other The team members who worked with regarding evidence history Straw’s sexual suggested that the two or preferences. job switch duties within the company. Straw and positions Pedroza did switch summary Cintas moved for judgment on —a title, move that change pay, involved no all claims. The district court held that or working conditions and that Pedroza there was insufficient evidence to create a allege does not awas demotion. After the question of material fact as to the issue of switch, Straw continued to blow kisses at whether harassing the conduct was based reported Anderson, addition, In sex. the district court management act, when Cintas did not harassing found that the conduct was not resigned. so pervasive as to constitute a hostile work Finally, environment. the district court brought Pedroza then against this action found that there was no adverse employ- alleged Cintas. She sexual harassment (hostile ment action. Pedroza abandoned her environment), retaliation, work reli- gious during constructive discrimination claim discharge religious sum- dis- (Pedroza mary judgment process, crimination is a Jehovah’s and the district Wit- ness) under Title VII and the court all remaining Missouri dismissed of Pedroza’s Human Rights Act. Pedroza also brought a claims. Pedroza appeals.

1068

II. and that the offensive behavior was non-actionable, merely vulgar behavior. grant the district court’s We review This distinction exists because “Title VII novo, view summary judgment de prohibit physical does not all verbal or non- most favorable to the light record a workplace” harassment in not “a and is in and draw all reasonable moving party, general civility code for American favor. party’s McCowan ferences in Inc., workplace.” Sys., Oncale Sundowner 349 F.3d Health v. St. John’s Off Cir.2003). Servs., Inc., (8th judg 75, 80, 540, Summary 523 U.S. 118 542 shore only (1998) 998, where there exist 201 appropriate (recog ment S.Ct. 140 L.Ed.2d of material fact such genuine questions no nizing a claim for same-sex harassment jury could return a that no reasonable that created a hostile work environment non-moving party. verdict an oil where forced Inc., Liberty Lobby, 477 U.S. Anderson v. in the Gulf platform worker of Mexico 242, 247-48, 106 91 L.Ed.2d S.Ct. job his quit rape). out of fear same-sex (1986). Consequently, to succeed a hostile work VII, plain environment claim under Title employer prohibits Title an VII tiff must “that the issue show conduct at against discriminating employee an from merely tinged was not sexu offensive employee’s sex. 42 U.S.C. based on the connotations, al 2000e-2(a)(l). actually but constituted § Discrimination based on ” ... ... working a hostile environ because of sex.’ ‘discrimination] sex creates Title VII. Harris v. (quoting ment violates Id. at 118 S.Ct. U.S.C. Forklift Inc., 17, 21, Sys., 2000e-2(a)(1)). 510 U.S. S.Ct. § (1993) (“When the work 126 L.Ed.2d McCown, recognized As we in the Su- discriminatory in permeated place preme Court set forth a non-exhaustive list ridicule, timidation, and that is suffi insult possible evidentiary that included three ciently pervasive or to alter the severe routes same-sex harassment plaintiffs employment conditions the victim’s of and follow to that show harassment was based environment, working create an abusive on sex: violated.”) (internal Title VII is citations First, plaintiff a can show that the con- omitted). marks To quotation state a duct was motivated desire. sexual a prima facie case for claim of sexual dis Second, a plaintiff can show that the a crimination hostile envi based work harasser general was motivated a (a) ronment, employee an must show: she hostility presence to the of the same (b) belongs protected group; to a she was third, gender workplace. in a And subject harassment; unwelcome sexual to plaintiff may comparative offer direct (c) sex; (d) the harassment was based on evidence how the about harasser treated term, condition, affected a harassment both and females in (e) males a mixed-sex employment; privilege or of her workplace. employer knew or should have known of proper and failed to take McCown, Oncale, (citing 349 F.3d at 543 McCowan, remedial F.3d action. at 1281). 80-81, Here, at 532 U.S. S.Ct. case, 542. In present we address the ap- the second third methods are not requirement, third whether the harass plicable. appears workplace The relevant ment was on sex. based female, and, exclusively to have been rate, any comparative Pedroza offers no requirement The based on sex plaintiff regarding forces a evidence treatment males prove to that she was the target Further, of harassment of her sex at because Cintas. concedes generally Straw was not hostile towards attempting to kiss the mouth and workplace. other women in the cheek, attempting hand, to hold Pedroza’s pointing to her own buttocks and telling question What remains is the of wheth it,” Pedroza to saying “kiss to er, summary based on the judgment rec my “kiss ass” when Pedroza light ord taken a most favorable to asked for Pedroza, any jury help, blowing reasonable could find kisses at say- that sexual desire motivated Straw’s ac ing that she didn’t have husband tions points towards Pedroza. Pedroza to that she wanted Pedroza —as evidence that the facts that one coworker suggested sexual desire motivated Straw’s behavior. “people” questioned way “which [Straw] Cintas, hand, on the other (8th Cir.2004) (noting the burden on a misinterpreted and Straw’s actions.2

party resisting summary judgment to des ignate specific the that facts create the argument, To buttress points its Cintas fact); question Jaurequi triable v. Car to a line of from cases this and other Co., (8th Mfg., ter 173 F.3d 1085 circuits wherein courts found that instanc Cir.1999) (“[A] ‘obligat district court is not es of same-sex harassment were ed to through wade and search the entire rather, not “based on sex” but vulgar were record specific for some facts might which “tinged and boorish behavior that was with claim.”’) support the nonmoving party’s offensive sexual connotations” sug but not (internal omitted). citation gestive by of motivation sexual desire. McCowan, See (finding 349 F.3d at 541-43 rely solely therefore must on the harassing nature of Straw’s that by actions harassment was not motivated sex grabbing Pedroza’s face and ual desire suggested where the victim the themselves — disagree regarding 2. We with Straw They preclude jury the infer- sexual. do not from ences that flow finding from the facts that she by that Straw was motivated some long-term had children degree and had been in a of homosexual desire towards Pedro- relationship with a man. These facts tend to za. It would be naive and artificial for us to prove only strictly that Straw was not homo- conclude otherwise. males, him,” we “just trying to ‘irritate’ sex harassment between must harasser was victim on the grabbed compare the the this ease to harasser facts of the and the buttocks, against waist, chest, pressed male, and only cases involved same- above intercourse, and in simulated Instead, the victim argues, she sex harassment. we objects in the victim’s put attempted in apply a different standard the must Sears, & buttocks); v. Roebuck Linville of female harassment context same-sex Cir.2003) (8th Co., 823-24 F.3d separates permissible the line that find on sex not based (finding vulgar behavior unpleasant albeit from struck repeatedly harasser where behavior that is based sex. prohibited scrotum); v. Davis Coastal in the victim points to cases such as Johnson in Inc., Sec., 275 F.3d Int'l specifically court noted the com- which the (D.C.Cir.2002) (finding that harassment in the vulgar expressions mon use of work- on sex two harassers not based where was by uttered men place “particularly when relationship antagonistic a pre-existing had to other Id. Pedroza speaking men.” con- grabbed and repeatedly victim with the that, bawdy, because such “locker cludes crotches, gestures, kissing made their own commonplace not as room” behavior is victim); oral sex towards and described females, jury could among reasonable Hondo, Inc., 408, 410- 125 F.3d Johnson readily more infer actual sexual desire Cir.1997) (7th (finding that harassment or acts based on similar statements sex the harasser based on where was not and, females, accordingly, we should be victim, against repeatedly brushed summary judgment to grant more hesitant manipulated own crotch in his grabbed in a female case involves same-sex victim, repeatedly de front of the harassment. victim). The oral sex towards the scribed explained Johnson Seventh Circuit specific point, this we disagree On supported this line of eases: reasoning First, Pedroza. do not find it with we unfortunately, expressions such as Most of Title VII to appropriate the context dick,” ass,” my my “suck ... “kiss establish dual standards for “based circles, commonplace in are certain required in male and showing sex” female not, expres- than these more often when Further, same-sex harassment cases. ut- (particularly are used when sions if we were inclined to draw such a even men), to other speaking tered men distinction, nothing Pedroza offers but her has no whatsoever their use connection preva to the unsupported opinions own as they make to which with the sexual acts vulgar' language lence of and behavior in accompa- they when are reference-even workplaces. According female dominated here, nied, they as sometimes were ly, reject argument that we Pedroza’s we Ordinarily, crotch-grabbing gesture. cannot look cases that involve male simply expressions animosity they are same-sex harassment determine wheth juvenile provocation!)]” or female, plaintiff aer same-sex harassment Johnson, urges F.3d at 412. us required showing has made create a matter that Pedroza’s to hold as of law on sex jury question under the based re analogous harassers’ actions are to the quirement. that no actions the above cases and jury could de- reasonable infer homosexual Looking entirety at evidence sire from Straw’s actions. consider, may comparing that we developing body case facts of this to the that,

Pedroza counters this case because authority under the “based sex” harass- allegations involves of same-sex cases, analysis in ment between rather than same- same sex harassment we females the district court correctly jury believe deter- from finding Straw was motivat- that the to suggest mined evidence moti- by degree ed some of sexual desire to- vation homosexual desire was insuffi- Pedroza,” ante, 2, wards n. but I question cient to create a triable of fact. think it is an say overstatement Accordingly, Pedroza’s hostile work envi- “[tjhese prove facts tend to only that ronment claim fails. Straw was not strictly homosexual.” Id. A long-term heterosexual relationship is rele- no separate argu raises vant to whether Straw acted out of homo- law, ments based on state and we hold that is, sexual desire —that it has a “tendency” Pedroza’s retaliation and constructive dis to make the existence of homosexual de- charge claims fail for the same reason as if, sire probable say, less than Straw had hostile work environment claim. Pe been in a long-term droza’s retaliation and constructive homosexual relation- dis charge ship, claims also fail due to the see Fed.R.Evid. absence 401—but it is no employment of an adverse action. Pedro means conclusive on point. I thus za voluntarily positions switched after agree that argument Cintas’s in favor of Straw and suggested Pedroza’s coworkers summary judgment on this basis should be the switch. There was no diminution in rejected. benefits,

pay or working conditions did change in a manner that we char

acterize as argues adverse. Pedroza unfairly switch,

she was criticized after the

but position criticism in a new is to be

expected. Finally, regarding Pedroza’s

separate punitive claim for damages, even

if we had found that her underlying claims summary judgment,

survived America, there UNITED STATES of nothing that justify placing would our Appellee, present case the “narrow class of cases” where the employer acts “with malice or federally

reckless indifference” to the pro KENYON, Ronald Gene also known as rights tected of its employees. Lawrence Bingen, Appellant. Ronald G. Inc., v. CNF Transp., 340 F.3d No. 04-1182. (8th Cir.2003). Here, the undisputed evi dence shows that Cintas management at Appeals, United States Court of tempted to curtail Straw’s actions. As Eighth Circuit. such, if ultimately even Pedroza had pre vailed, Submitted: June 2004. punitive an award of damages appropriate. would not be Filed: Feb. 2005. affirm the judgment We of the district court.

COLLOTON, Circuit Judge, concurring. court,

I concur in opinion of the

a brief clarification concerning footnote 2. agree

I the facts that Straw had

children long-term and had been in a rela-

tionship with a man preclude “do not notes it swung” Manager and General Smith told undisputed was that Straw had chil- five open Pedroza to be more people’s other dren from a marriage; former Straw was lifestyles. mayWe consider the com not long-term, live-in, in a heterosexual rela- ments or rumors from non-management tionship boyfriend; with her Straw and regarding coworkers Straw’s sexual orien a generally antagonistic had rela- tation because the granted district court tionship with each other that preceded any Cintas’s motion in limine exclude these allegedly conduct; and, harassing accord- comments, and Pedroza does not contest ing to expert, Pedroza’s own Pedroza was ruling. We also refuse to consider person” “concrete intelligence limited because, although Smith’s comment who difficulty had understanding sarcasm district court file a transcript contained and who tended to take statements literal- the recorded conversation in which Smith ly. Pedroza asks us to conclude that a comment, “lifestyle” made the Pedroza did jury question exists as to whether sexual bring this statement to the attention of desire motivated Straw’s behavior. Cintas the district court in her in opposition brief asks us to conclude that per- the evidence summary judgment Cintas’s motion or only mits one interpretation, reasonable any counter statement of the facts be namely, that vulgar Straw was a and boor- fore the district court. See Crossley v. ish coworker sought antagonize who Georgia-Pacific 1112, 1114 Corp., 355 F.3d Pedroza and that Pedroza misunderstood

Case Details

Case Name: Terri Pedroza v. Cintas Corp. No. 2

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Feb 11, 2005

Citation: 397 F.3d 1063

Docket Number: 03-1407

Court Abbreviation: 8th Cir.