Jones v. John Morrell & Co., C 01-4088-MWB.

243 F.Supp.2d 920

Ladonna JOENS, Plaintiff, v. JOHN MORRELL & CO., a Delaware Corporation, Defendant.

No. C 01-4088-MWB.

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

February 7, 2003.

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Stanley E Munger, Jay Elliott Denne, Munger, Reinschmidt & Denne, Sioux City, IA, for Plaintiff.

Melanie L Carpenter, Gary P Thimsen, Woods, Fuller, Shultz & Smith, PC, Sioux Falls, SD, Scott C Folkers, Scott Folkers Law Firm, Sioux Falls, SD, Leslie R Stellman, Barry Bach, Hodes, Ulman, Pessin & Katz, PA, Towson, MD, for Defendant.

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT'S MOTION FOR SUMMARY

BENNETT, Chief Judge.

TABLE OF CONTENTS

I.  BACKGROUND ....................................................... 925
A. Procedural Background ............................................. 925
B. Factual Background ................................................ 926
II.  LEGAL ANALYSIS .................................................. 927
A. Standards For Summary Judgment ................................... 927
B. The Sexually Hostile Work Environment Claim ...................... 928
1. Arguments of the parties ......................................... 928
2. Sufficiency of the alleged harassment ............................ 929
   a.   Based on sex ................................................ 929
   b.   Affecting a term or condition of employment ................. 930
3. Employer liability ............................................... 931
   a.  Employer liability for "supervisor" or "co-worker"
harassment ................................................... 931
   b.  Does this case involve "coworker" or "supervisor"
harassment? .................................................. 934
       i.   Who is a "supervisor" within the meaning of Ellerth
and Faragher? ........................................... 934
      ii.   Was Johnson such a "supervisor"? ......................... 941
   c.  Are there genuine issues of material fact under the
appropriate standard for employer liability? ................ 942
       i.   What constitutes sufficient notice that alleged
harassment is "based on sex"? ........................... 943
      ii.   Was sufficient notice given here? ........................ 945
C. The Disparate Treatment Claim ..................................... 946
   1.  Arguments of the parties ...................................... 946
   2.  Joens'sprima facie case ....................................... 947
   3.  Joens's showing of pretext .................................... 948
D. Retaliation ....................................................... 949
1.  Arguments of the parties ......................................... 949

2. Joens's showing in support of her retaliation claim ........ 950
III. CONCLUSION ...................................................... 951

One "burning question" for employer liability for workplace sexual harassment in the wake of the Supreme Court's landmark decisions in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), is, does a particular case involve "supervisor" or "co-worker" harassment? That question—among others—is squarely presented here, on the employer's motion for summary judgment, where the employer initially assumed that the plaintiffs allegations involved only "coworker" harassment, but the plaintiff responded that the "thrust" or "core" of her claim was harassment by "a foreman" of the company, which she contended required application of the employer liability standards for "supervisor" harassment. At the court's behest, the parties have probed more deeply the question of whether this is a "co-worker" or "supervisor" harassment case, and hence, what standard of employer 1 ability is at issue. Another question of equally "burning" significance here, for purposes of either the employer's Ellerth/Faragher affirmative defense, if this is a "supervisor" harassment case, or the plaintiffs proof that the employer knew or should have known of the harassment, if this is a "co-worker" harassment case, is, what kind of complaint from the plaintiff is sufficient to put an employer on notice that the alleged harassment is "based on sex"? The court's resolution of these and other issues related to the plaintiffs claims of sexual harassment, disparate treatment based on sex, and retaliation for complaining about harassment and disparate treatment, are herein.

I. BACKGROUND

A. Procedural Background

In this action, filed August 13, 2001, pursuant to Title VII of the Civil Rights Act of 1964, plaintiff LaDonna Joens asserts the following claims against her current employer, defendant John Morrell & Co.: (1) hostile environment sexual harassment; (2) sexual discrimination (disparate treatment) in overtime hours; and (3) retaliation for complaining about sexual harassment and discrimination. This matter is set for trial to begin on March 31, 2003. However, this matter comes before the court pursuant to John Morrell's November 29, 2002, motion for summary judgment on all of Joens's claims, which, if granted, would obviate the need for any trial. Joens resisted John Morrell's motion for summary judgment on January 3, 2003, and John Morrell filed a reply in further support of its motion on January 17, 2003.

By order dated January 23, 2003, the court requested that the parties address in their oral arguments certain questions concerning whether this case involves "supervisor" or "co-worker" harassment and what kind of reports of "harassment" would be sufficient to put an employer on notice that such harassment might be "based on sex." In response to that order, John Morrell filed two supplemental affidavits on January 29, 2003, one from Dennis Reitz, concerning who exercised supervisory authority over the "box shop" where the plaintiff was employed, and one from Steve Joyce, John Morrell's Director of Human Resources, concerning who exercises the authority to hire and fire employees in the "box shop" and the company generally.

The court heard the parties' unusually animated and informative oral arguments on John Morrell's motion for summary judgment on January 30, 2003. At the oral arguments, plaintiff LaDonna Joens was represented by Jay E. Denne of Munger, Reinschmidt & Denne, L.L.P., in Sioux City, Iowa. Defendant John Morrell & Co. was represented by Leslie Robert Stellman of Hodes, Ulman, Pessin & Katz, P.A., in Towsen, Maryland, and Scott C. Folkers of John Morrell & Company. John Morrell's motion for summary judgment is now fully submitted.

B. Factual Background

Although whether or not a party is entitled to summary judgment ordinarily turns on whether or not there are genuine issues of material fact for trial, see, e.g., Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir. 1996), the court will not attempt here a comprehensive review of the undisputed and disputed facts in the record. Rather, the court will present here only sufficient factual background to put in context the parties' arguments for and against summary judgment on Joens's claims.

The parties agree that Joens began working for John Morrell, which operates a meat packing plant in Sioux City, Iowa, in 1986. They also agree that, since the early 1990s, Joens has been employed in the "box shop." At the times pertinent to her complaint, Joens worked the day shift as the operator of a box forming machine, which makes the bottoms of the boxes in which product is placed, while a male employee, Doug Severson, worked at the same job on the evening shift making box tops. Joens's supervisor was Dennis Reitz, while Doug Severson's supervisor was Scott Thompson.

Joens alleges that she was sexually harassed by male-co-workers, who engaged in conduct including sexually suggestive activities with bananas in the lunchroom, telling "blonde jokes," and telling other sexual jokes. She also complains that one male employee engaged in at least one incident of improper touching. However, her claim that she was subjected to a sexually hostile work environment relies primarily on her allegations that a "cut floor foreman" named Herman Johnson almost daily subjected her to lengthy complaints about her performance, in abusive—albeit apparently gender-neutral— terms, when he wanted more boxes or did not think that Joens had provided enough boxes before the start of a "kill" shift. Joens contends that Johnson did not subject men in the box shop to the same kind of treatment. In support of both her disparate treatment claim and her retaliation claim. Joens also alleges that her male counterpart on the night shift, Severson, was permitted to work more overtime hours, and that he was allowed to do so not just because of sex, but in retaliation for Joens's repeated complaints about harassment and the disparity in overtime hours.

John Morrell contends that Joens never complained that any harassment by Johnson was based on sex until she filed her administrative charge with the Iowa Civil Rights Commission and that, in any event, such "harassment" was neither because of sex nor sufficiently severe or pervasive to constitute actionable sexual harassment. John Morrell also contends that Severson's excess overtime hours were not properly authorized, which John Morrell's Human Resources Manager, Steven Joyce, did not discover until he investigated Joens's administrative charge of discrimination. Consequently, John Morrell contends, the disparity was not the result of either discriminatory or retaliatory animus, and, indeed, was contrary to a collective bargaining agreement requiring equalization of hours between shifts. John Morrell also contends that, for the year following its corrective actions, which included notifying Severson that he could only work overtime when authorized to do so by a supervisor, Joens actually...