Cherry v. Menard, Inc.

101 F.Supp.2d 1160

Nancy CHERRY, Plaintiff, v. MENARD, INC., Defendant.

No. C99-4029.

United States District Court, N.D. Iowa, Western Division.

June 15, 2000.

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David L. Reinschmidt, Munger, Reinschmidt & Denne, Sioux City, IA, for Plaintiff.

John Werner, Grefe & Sidney, Des Moines, IA, for Defendant.

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

BENNETT, Chief Judge.

TABLE OF CONTENTS
I. INTRODUCTION ....................................................................... 1164
     A. Procedural Background ........................................................... 1164
     B. Factual Background .............................................................. 1164
 II. STANDARDS FOR SUMMARY JUDGMENT ..................................................... 1166
III. LEGAL ANALYSIS ..................................................................... 1168
     A. Cherry's Sexual Harassment Claim—hostile work environment ..................... 1168
        1. Cherry's showing of the effect on her employment ............................. 1169
        2. Employer liability for supervisory sexual harassment ......................... 1170
              a. The Ellerth/Faragher affirmative defense ............................... 1170
              b. Constructive discharge is a tangible employment action as defined
in Ellerth and Faragher .............................................. 1171
              c. Application of the Ellerth/Faragher affirmative defense ................ 1177
        3. Employer liability for non-supervisory co-worker sexual harassment ........... 1178
     B. Cherry's Racial Harassment claim-hostile work environment ....................... 1180
        1. Cherry's showing of the effect on her employment ............................. 1180
        2. Employer liability for supervisory racial harassment ......................... 1182
        3. Employer liability for non-supervisory co-worker racial harassment ........... 1183
     C. The Retaliation Claims .......................................................... 1184
        1. Cherry's evidence of "adverse action" ........................................ 1185
        2. Cherry's evidence of causal connection ....................................... 1187
     D. Constructive Discharge .......................................................... 1187
        1. Proof of constructive discharge .............................................. 1187
        2. Cherry's evidence of constructive discharge .................................. 1188
 IV. CONCLUSION ......................................................................... 1189

In this employment discrimination lawsuit, the plaintiff-employee alleges that her former employer violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by subjecting her to a hostile work environment and then retaliating against her for engaging in protected activity to remedy the alleged harassment. The plaintiff-employee further alleges that the hostile work environment and the retaliation caused her constructive discharge. The employer has moved for summary judgment on all counts. Because plaintiff's allegations of sexual and racial harassment are directed against not only her non-supervisory co-workers, but also against her supervisors, the court must consider the affirmative defense set forth by the United States Supreme Court in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Additionally, the court is called upon to resolve a critically important question triggered by the Ellerth/Faragher affirmative defense analysis: Whether a constructive discharge constitutes a "tangible employment action" as defined in Ellerth and Faragher?

I. INTRODUCTION

A. Procedural Background

On April 21, 1999, plaintiff Nancy Cherry ("Cherry") filed a complaint against her former employer, defendant Menard, Inc. ("Menards"), seeking damages resulting from her alleged constructive discharge. In her complaint, Cherry alleges three causes of action: (1) a claim of a sexually hostile work environment; (2) a claim of a racially hostile work environment; and (3) a claim of retaliation. Menards answered the complaint on June 24, 1999, generally denying Cherry's claims and asserting various defenses, including the two prong affirmative defense outlined in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).¹ Presently before the court, is Menards's March 27, 2000, Motion for Summary Judgment.

On May 23, 2000, the court heard oral arguments on Menards's Motion for Summary Judgment. Menards was represented by John Werner of Grefe & Sidney, Des Moines, Iowa. Cherry was represented by David L. Reinschmidt of Munger, Reinschmidt & Denne, Sioux City, Iowa. The court will begin with the factual background established by the summary judgment record. Next, the court will set forth the standards applicable to a motion for summary judgment. Finally, the court will turn to its legal analysis of Menards's motion.

B. Factual Background

Nancy Cherry is a thirty-three year old African-American female. Cherry was an employee for Menards from approximately July 17, 1997 until June 22, 1998. When Cherry commenced her employment with Menards in 1997, the store manager was Glen Brunick. In November of 1997, however, Brad Kwallek replaced Glen Brunick and became the new store manager and remained such throughout Cherry's employment with Menards. Initially, on or about July 17, 1997, Cherry was hired on a part-time basis at the Menards store in Sioux City, Iowa, as a sales associate in the electrical department. Cherry's managers in the electrical department were Glenn Clark and Janelle Knight. Thereafter on or about November 23, 1997, Cherry switched to the plumbing department where she began to work on a full-time basis. Cherry's supervisors in the plumbing department were John Kerns and Clark Ulven.

Cherry's claim of a sexually hostile work environment is based on allegations of harassment by both supervisors and nonsupervisory co-employees. Cherry claims that in January of 1998, Clark Ulven, her supervisor in the plumbing department, grabbed his penis and uttered extremely crude remarks to Cherry, emphasizing that he had black women before, and further explaining what he did with these women sexually. Cherry claims that Ulven crudely talked about a girl named Stacey (another employee at Menards) to her, explaining how he wanted to take advantage of her, and that she was a whore because she allowed all the guys in the yard to be with her. On or about April 10, 1998, Cherry claims that her co-worker, James Jepsen, told her she had a nice ass. Thereafter, on April 13, 1998, Cherry claims that Jepsen told her, "I would like to fuck you." On April 16, 1998, Cherry claims that Jepsen grabbed her butt. Cherry also claims that Jepsen told her that he dreamed of having sex with her. Cherry claims that in late May, 1998, Jepsen grabbed Cherry around the waist and kissed her on the lips. Cherry claims that Jepsen and Ulven routinely used vulgar, sexual language and talked about sex in the presence of female employees. Lastly, Cherry claims that Gene Smith refused to help her with the customers, and walked away, grabbing his penis saying he was going to the bathroom.

Regarding all of her complaints of sexual harassment, Cherry claims that after reporting these complaints to Menards, it did not respond. Thus, Cherry claims that Menards took no remedial measures to stop Ulven's, Smith's, and Jepsen's sexually hostile behavior or to correct the sexually hostile work environment that was pervasive throughout Menards. Because no remedial measures were taken, and because the sexually hostile environment at Menards was pervasive and destructive, Cherry alleges that she was constructively discharged. In contrast, Menards asserts that Cherry failed to report several of the allegations listed above, and therefore, Menards was unaware of the sexually hostile work environment. As for the allegations that Cherry did report specific incidents of hostile behavior to Menards, Menards claims that it took prompt and remedial action to cure such conduct, which included investigating Cherry's complaints as well as reprimanding those individuals who Cherry alleged sexually harassed her.

Cherry's claim of a racially hostile work environment is likewise based on the actions of both her supervisors and nonsupervisory co-workers. In September of 1997, Cherry claims that she was introduced to the racially hostile environment through several months of constant degrading comments about minorities made by her supervisor, Glenn Clark. Cherry claims that although many of the comments and actions taken by Clark were directed at other races, including Asians and Hispanics, Cherry was offended because she claims that Clark's behavior was directed toward minorities in general, African-Americans included. For example, Cherry claims that Clark referred to Mexicans as "spics," and Asians as "gooks." Cherry further claims that Clark stated "they need to get back on the boat and sail away, they need to go back to the border, I hate those Mexicans." Cherry also observed that when Mexicans would come up to Clark and ask him a question, "he'd just look at them and walk right away from them." In October of 1997, Cherry claims one of her co-workers, William Engelman, referred to a white customer who had a black child as a "nigger-digger." On or about October 25, 1997, Cherry claims that she saw a grill display in the electrical department with big red letters "KKK." Cherry told Dan Browning, who was the assistant plumbing manager, about this...