Torres v. Quatro Composites, A Division of Tec Industries, L.L.C.
ORDER denying 10 Motion for Summary Judgment. Defendant's Motion for Summary Judgment is hereby denied as to all of Plaintiff's claims. Signed by Senior Judge Donald E O'Brien on 10/1/12. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
QUATRO COMPOSITES, L.L.C., A
Division of Tec Industries,
On May 27, 2011, Sigisfredo Torres, Plaintiff, filed a
The Complaint consists of five counts:
racially hostile work environment, (2) racial discrimination,
(3) sexually hostile work environment, (4) retaliation based
on Plaintiff’s race and sex, and (5) related violations of the
Iowa Civil Rights Act.
Docket No. 1.
Currently before this
Court is Defendant’s Motion for Summary Judgement as to all
Docket No. 10-1.
Defendant “engineers and manufactures advanced composite
products for the aerospace, military, and medical industries.”
Docket No. 10-2, 1 and Docket No. 13-1, 1.
at Defendant’s plant in Orange City, Iowa. Id. Plaintiff had
formerly worked at Defendant’s plant in Poway, California, but
requested a transfer to Orange City, Iowa, in March of 2006.
In August of 2007, Plaintiff also requested the transfer
of his mother, Luz Garcia, from the plant in Poway to Orange
Plaintiff alleges that in an Orange City plant meeting in
Plaintiff’s soon to be “team lead,”1 asked whether Plaintiff
Docket No. 15-4, 2.
Plaintiff also alleges
that when his mother was being transferred from the Poway
plant, Ms. DeVos told several people that “it should be
mandatory for all employees to speak English . . . .”
No. 15-4, 12.
Soon after Plaintiff started work, Plaintiff
alleges Ms. DeVos began keeping tabs on his time clock and
sharing the information she discovered with other employees.
At Defendant’s plant, team leads organized the work for
their departments, assigned people to work projects, directed
them in the completion of their work, set the number of hours
they worked, and evaluated their work performance. Docket No.
15-4. Team leads did not have the “authority to hire, fire,
promote, or reassign employees to a different department.”
Docket No. 10-2, 2 and Docket No. 13-1, 3.
Docket No. 15-4, 4.
She “would also watch [Plaintiff] while
he was working, and would stand and stare at him if he was on
the phone or if he was on break.”
Docket No. 15-4, 4.
DeVos also began treating Plaintiff like he was stupid and
told other employees to tell him to “fuck off” and call him an
“asshole” and “dumb Mexican.”
Docket No. 15-4, 4 and Docket
No. 10-3, 8.
At some point, Plaintiff’s bottle of hot sauce was stolen
“after repeated comments” about him using it on all his food.
Docket No. 15-4, 3.
He also contends co-workers “began
putting derogatory notes on his lunch in the refrigerator in
deposition, Plaintiff testified that the notes were about
“little things,” like remembering to clock out.
Plaintiff did not indicate the notes consisted of
racial or sexual content. Id. However, Plaintiff does allege
that he was called “dumb Mexican” or “dumb ass” every other
Docket No. 15-4, 6.
Some of Plaintiff’s co-workers, on
a daily basis, also began making jokes about the supposedly
small size of Mexican penises, as well as other sexually
Docket No. 15-4, 6.
Though the Plaintiff
admits he would occasionally laugh at the comments, he claims
Docket No. 15-4, 6.
In addition, on a single occasion a co-worker stated that
trailer trash was a step up from being a Mexican; and on
another occasion, Plaintiff was asked to do a rain dance
because he was the closest thing the company had to an Indian.
Docket No. 15-4, 7.
According to Plaintiff, one of his co-workers also began
calling him a border crosser.
Docket No. 13-4, 6.
Plaintiff admits that he laughed about it and told her the
correct term was “border jumper,” he thought that, at some
point, the joke got “out of hand.”
Docket No. 13-4, 4.
Plaintiff asked his co-worker to stop on a few occasions, but
Docket No. 13-4, 4.
On July 19, 2007, Plaintiff’s superiors, Mr. Heemstra and
Ms. Ahlers, held meetings with Plaintiff and Ms. DeVos.
Docket No. 15-4, 8.
Plaintiff and Ms. DeVos signed an
agreement to treat each other civilly.
Docket No. 15-4, 8.
Plaintiff contends he first formally complained that the
reprimanded by Ms. DeVos in front of his co-workers.
No. 15-4, 8.
There is no indication Ms. DeVos made any
racially or sexually derogatory comments while she reprimanded
Plaintiff; and Plaintiff admits that he had made a mistake in
Docket No. 15-4, 9.
While Ms. Ahlers and
Mr. Heemstra did speak to Ms. DeVos about the situation, no
formal disciplinary action was taken against her.
complaints from 2007 through his termination in 2009. Docket
Plaintiff’s wife, who also worked at Defendants’
Orange City plant, also filed complaints related to the
treatment of her husband. Docket No. 15-4, 7. Though several
complaints were lodged, Plaintiff contends his co-workers
continued to harass him, including nearly daily comments about
the size of Mexican penises, but were never formally punished.
Docket No. 15-4, 4, 12 and 13.
In April of 2009, Plaintiff contends he declined the
sexual advances of a fellow female employee who then, spurned
by Plaintiff’s rebuke, made up rumors that Plaintiff was
having an affair with another female co-worker.
incident, Plaintiff began to avoid contact with his coworkers, “other employees told him that [Ms.] DeVos continued
to make derogatory comments” related to his race.
On November 24, 2009, Luz Garcia, Plaintiff’s Mother, and
Steve Gettner were working in adjoining work spaces.
No. 10-2, 1 and Docket No. 13-1, 1.
Ms. Garcia did not feel
she had enough work space and pushed some of Mr. Gettner’s
things sitting on a table they were sharing into a machine Mr.
Gettner was using.
Docket No. 10-2, 1 and 13-1, 1.
to the testimony of the Plaintiff, Mr. Gettner then grabbed
boxes and shoved them at Ms. Garcia, hitting her in the
stomach with them.
Docket No. 15-4, 13.
to talk to his supervisors about what had happened but they
were in a meeting.
Docket No. 15-4, 14 and Docket No. 10-2,
Soon thereafter, Plaintiff ran into Mr. Gettner on the
loading docks and, in his own words, “lost it.”
Plaintiff came within a foot of Mr. Gettner and
aggressively told him that if he ever disrespected his mom
again, Plaintiff would “kick his ass.”
Docket No. 13-4, 17.
Mr. Heemstra’s notes indicated “Mr. Gettner was ‘visibly
shaken’ when he reported the incident” to him. Docket No. 102, 2 (quoting Docket No. 10-3, 47 and 100).
by the company President, Mr. Roesner, Plaintiff admitted that
he had made a mistake but also explained the events leading up
to his reaction.
Docket No. 10-2, 2 and Docket No. 13-1, 2.
Sometime after the incident between Mr. Gettner and Plaintiff,
Plaintiff’s mother was taken to the emergency room and treated
for an anxiety attack.
Docket No. 13-4, 79.
Ostensibly due to Plaintiff’s altercation with Mr.
Gettner, Defendant suspended Plaintiff; and Plaintiff was
terminated a week later.
The Defendant did not take any disciplinary action
against Mr. Gettner.
Docket No. 10-2, 2 and Docket No.
Docket No. 13-2, 11.
threatened to kick another employee’s ass in which the nonHispanic employee was not terminated.
Docket No. 13-3, 11.
The Defendant contends that Plaintiff often participated
in the jokes shared between co-workers about Mexicans.
instance, Plaintiff participated in joking about the number of
people Mexicans can fit into a single car.
Docket No. 10-2,
He also, at one point, shaped a piece of silicon into the
shape of a penis upon a co-worker’s request, though he knew
the co-worker who made the request was going to put it into
the locker of another female co-worker.
Docket No. 10-2, 5
When the female co-worker got mad and reported the
incident to supervisors, Plaintiff told her, “If you can’t
handle a joke, then you shouldn’t be joking.”
Docket No. 10-
However, Plaintiff’s overall testimony reflects that
though he attempted to initially laugh off what he perceived
as racial and sexual harassment, he, at some point, felt
things began to cross a line.
Docket No. 13-1, 5.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only if the record shows
“there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
R. Civ. P., Rule 56(c).
A fact is material if it is necessary
“to establish the existence of an element essential to [a]
party’s case, and on which that party will bear the burden of
proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322
There is a genuine issue as to a material fact if,
based on the record before the court, a “rational trier of
fact” could find for the non-moving party.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
When considering a motion for summary judgment, a “court
must view the evidence in the light most favorable to the
nonmoving party . . . .”
Hutson v. McDonnell Douglas Corp.,
63 F.3d 771 (8th Cir. 1995).
This requires a court to draw
any reasonable inference from the underlying facts in favor of
the nonmoving party and to refrain from weighing the evidence,
making credibility determinations, or attempting to discern
the truth of any factual issue in a manner which favors the
moving party unless there is no reasonable alternative.
Chillicothe, 512 F.3d 1013, 1018 (8th Cir. 2008) (citing
Thomas v. Corwin, 483 F.3d 516, 526-27 (8th Cir. 2007)).
Procedurally, the movant bears the initial burden “of
informing the district court of the basis for its motion and
identifying those portions of the record which show a lack of
a genuine issue.” Hartnagel v. Norman, 953 F.2d 394, 395 (8th
Cir. 1992) (citing Celotex, 477 U.S. at 323). Once the movant
has carried his burden, the non-moving party is required “to
go beyond the pleadings” and through “affidavits, or by the
‘depositions, answers to interrogatories, and admissions on
file,’ designate specific facts showing that there is a
genuine issue for trial.’” Celotex, 477 U.S. at 323 (citing
Fed. R. Civ. P. 56(e)).
RETALIATION AND DISCRIMINATION CLAIMS:
DOUGLAS BURDEN SHIFTING FRAMEWORK
Both the Civil Rights Act of 1964 (hereinafter “Title
VII”) and the Iowa Civil Rights Act of 1965 (hereinafter
“ICRA”) make it unlawful for an employer to discriminate
against an employee based on race, color, religion, sex, or
national origin, and “Iowa Courts . . . turn to federal law
for guidance in evaluating ICRA.”
42 U.S.C. § 2000e-2; Iowa
Code §216.6;2 and Vivian v. Madison, 601 N.W.2d 872, 873 (Iowa
Title VII and ICRA also prohibit retaliation against
In addition to discrimination based on race, color,
religion, sex, and national origin, the Iowa Civil Rights Act
of 1965 also makes it unlawful for an employer to discriminate
against an employee on the basis of age, creed, sexual
orientation, gender identity, and disability.
Iowa Code §
employees for opposing practices made unlawful within the
Young-Losee v. Graphic Packaging Intern., Inc., 631
F.3d 909, 911-12 (8th Cir. 2011) (citing 42 U.S.C. § 2000e3(a)); Smith v. Allen Health Systems, Inc., 302 F.3d 827, 836
(8th Cir. 2002) (citing O’Bryan v. KTIV Television, 64 F.3d
A party may prove a discrimination or retaliation claim
through either direct or indirect evidence.
SuperValu, Inc., 674 F.3d 962, 972 (8th Cir. 2012).
evidence “is evidence ‘showing a specific link between the
alleged discriminatory animus and the challenged decision,’”
(quoting Thomas v. First Nat’l Bank of Wynne, 111 F.3d 64, 66
(8th Cir. 1997)).
If there is direct evidence linking a
defendant’s alleged discrimination with an adverse employment
decision, or there is direct evidence linking an adverse
judgment is generally inappropriate.
When a Plaintiff relies on indirect
evidence, the 8th Circuit and Iowa Court’s employ the burden
shifting framework the Supreme Court announced in McDonnell
Douglas Corp. v. Green.
411 U.S. 792 (1973).
McDonnell Douglas framework, a plaintiff “must first establish
a prima facie case of discrimination” and/or retaliation.
Guimaraes, 674 F.3d at 973 (citing Torgerson v. City of
Rochester, 643 F.3d 1031, 1046 (8th Cir. 2011)).
Once a prima facie case is established, there is a
rebuttable presumption of discrimination and/or retaliation.
Id. at 973.
“The burden then shifts to the defendant to
If the defendant fails to provide such a
reason for his decision, summary judgment is inappropriate.
If the defendant does provide “such a reason, the
presumption disappears, and the burden shifts back to the
plaintiff to show that the proffered reason was a pretext for
Defendant makes one general argument against all of
Plaintiff’s retaliation and discrimination claims3 and one
In relation to all of Plaintiff’s retaliation and
In relation to Plaintiff’s retaliation claims,
Defendant contends that Plaintiff has failed to establish a
prima facie case of retaliation.
Whether Plaintiff has Established a Prima Facie Case
In order to establish a prima facie case in a retaliation
claim, a plaintiff must “show (1) he engaged in protected
conduct, (2) he suffered a materially adverse employment act,
and (3) the adverse act was causally linked to the protected
Guimareas, 674 F.3d at 978.
Plaintiff has failed to make a showing that his termination
was causally linked to his complaints of discrimination.
Throughout this Order this Court refers to Plaintiff’s
discrimination and retaliation claims, rather than claim,
because Plaintiff has plead violations under both Title VII
To prove a causal link, a plaintiff “must demonstrate
that defendant’s ‘retaliatory motive played a part in the
adverse employment action.’”
Thomas v. Corwin, 483 F.3d 516,
531 (8th Cir. 2007) (quoting Kipp v. Mo. Highway & Transp.
Comm’n, 280 F.3d 893, 896-97 (8th Cir. 2002)).
giving rise to an inference of a retaliatory motive on the
part of the employer is sufficient to establish the requisite
The Defendant contends that Mr. Roessner, who made the
ultimate decision to terminate Plaintiff, was unaware of the
Docket No. 13-3, 11.
also notes that Plaintiff admits that his supervisors, who
provided input to Mr. Roessner prior to his decision, did not
discriminate against Plaintiff.
Docket No. 13-3, 12.
unnecessary to consider each in detail because this Court
ultimately finds in Plaintiff’s favor.
Notably, the record establishes that despite allegedly
repeated complaints from Plaintiff from 2007 up until the
incident with Mr. Gettner, Defendant failed to take any formal
discriminating against Plaintiff.
Docket No. 15-4, 10.
addition, there is information on record that Plaintiff told
Plaintiff’s wife, Mrs. Torres, claims she made Mr. Roessner
aware of Plaintiff’s history of complaints just prior to Mr.
Roessner’s decision to terminate Plaintiff.
10 and 11 (citing 13-4, 36).
Docket No. 13-3,
An adverse employment action
that follows soon after a plaintiff has engaged in protected
activity, may aid in establishing causality.
Davison v. City
of Minneapolis, Minn., 490 F.3d 648, 657 (8th Cir. 2007); see
also Hudson v. Norris, 227 F.3d 1047, 1051 (8th Cir. 2000)
(stating that the Eighth Circuit views regarding the value of
a temporal connection between protected conduct and an adverse
itself, to create an inference of causation . . . to being
nothing more than a ‘slender reed of evidence . . . that was
not enough to support an inference of causation’”) (citations
Furthermore, the Defendants failed to question Ms.
Garcia about the incident between her and Mr. Gettner; and no
formal disciplinary action was taken against Mr. Gettner for
his alleged actions in relation to Ms. Garcia. Docket No. 1515
Finally, there is evidence on record indicating that
when dealing with a situation in which a non-Hispanic employee
threatened to kick another employee’s ass, Defendants did not
resort to terminating the non-Hispanic employee who made the
Docket No. 15-4, 19.
Given Defendant’s allegedly
repeated failure to take formal disciplinary action against
temporal proximity between Plaintiff’s protected conduct and
his termination, and Defendants’ history of dealing with
similar threats, a reasonable jury could infer that there was
a sufficient causal connection between Plaintiff’s protected
conduct and his termination.
Defendant refers to this as a “non-threatening threat”
because the employee who was threatened blew it off and
“‘really didn’t worry about it . . . .’” Docket No. 15-1, 8
(citing Docket No. 10-3, 94-95).
As discussed in the next section of this Memorandum and
Opinion Order, this Court does not think this situation was
sufficient to create a jury question as to whether Defendant’s
purported reason for terminating Plaintiff was a mere pretext; however, the standard for establishing a causal
connection between protected conduct and an adverse employment
action is less demanding, and so it does constitute evidence
B. Whether Defendant had a Legitimate, Nondiscriminatory
Reason for Terminating Plaintiff?
As previously noted, after a Plaintiff establishes a
a prima facie case under the McDonnell Douglas burden shifting
framework, a Defendant may counter by presenting evidence of
“a legitimate, nondiscriminatory reason for its decision.”
Guimaraes, 674 F.3d at 973.
It then becomes the plaintiff’s
burden to show that a defendant’s purported reason for his
decision is a mere pretext for retaliation.
Defendant contends Plaintiff’s retaliation claims5 fail
because Defendant had a legitimate, nondiscriminatory reason
for terminating Plaintiff, i.e., he threatened Mr. Gettner
(Docket No. 10-1, 7-11).
Plaintiff contends that because he
employees, there is sufficient evidence for a reasonable jury
to conclude that Defendant’s purported reason for terminating
him was a mere pretext.
Docket No. 13-3, 6.
Again, Plaintiff makes claims under both ICRA and Title
discrimination was the real reason” for the decision.
Mary’s Honor Center v. Hicks, 509 U.S. 502, 515-16 (1993).
However, a strong showing that a defendant’s purported reason
for terminating a plaintiff was false may suffice to show that
Torgersen v. City of Rochester, the Eighth Circuit recently
clarified the means whereby a plaintiff can establish pretext:
There are at least two ways a plaintiff may
demonstrate a material question of fact
regarding pretext . . . A plaintiff may
show that the employer’s explanation is
‘unworthy of credence . . . because it has
no basis in fact . . .’ Alternatively, a
plaintiff may show pretext ‘by persuading
the court that a [prohibited] reason more
likely motivated the employer . . .’
Either route amounts to showing that a
motivated the employer’s action.
643 F.3d 1031, 1047 (8th Cir. 2011) (citing and quoting
Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1120 (8th Cir.
demonstrating that an employer’s explanation is pretextual is
to show that similarly situated persons,” who are not members
Erickson v. Farmland Indus., Inc., 271 F.3d 718,
726-27 (8th Cir. 2001).
The test for determining “whether
employees are ‘similarly situated’ to warrant a comparison to
a plaintiff is a ‘rigorous’ one.”
EEOC v. Kohler Co., 335
F.3d 766, 775 (8th Cir. 2003) (quoting Harvey v. AnheuserBusch,
“Specifically, the individuals used for comparison must have
dealt with the same supervisor, have been subject to the same
mitigating or distinguishing circumstances.”
Id. at 776.
Though Plaintiff refers to three incidents in which he
feels similarly situated persons, who were not members of his
protected class, were given more favorable treatment, this
Court is persuaded only one of these incidents meets the
rigorous standard necessary to warrant a comparison.
the incident in which Mr. Gettner allegedly pushed the box
Gettner assaulted his mother, which, though not the same
conduct, could arguably be characterized as more egregious
than the threat Plaintiff made to Mr. Gettner later in the
Furthermore, the situation was dealt with by the same
supervisors, but Mr. Gettner was never formally disciplined.
Therefore, based on Defendant’s treatment of the incident as
a whole, this Court is persuaded that a reasonable jury could
conclude that Defendant’s reason for terminating Plaintiff was
more than likely based on prohibited considerations.
HOSTILE WORK ENVIRONMENT CLAIMS
As previously noted, Plaintiff makes hostile work
environment claims under both Title VII and ICRA based on both
racial and sexual harassment. In Gipson v. KAS Snacktime Co.,
the Eighth Circuit indicated that “the same standards are
generally used to evaluate claims of hostile work environment
based upon sexual . . . and racial harassment.”
171 F.3d 574,
recognized that a hostile work environment claim under ICRA
consists of the same elements as a hostile work environment
claim under Title VII.
Boyle v. Alum-Line, Inc., 710 N.W.2d
741, 748 (Iowa 2006). Thus, the same general standard applies
to Plaintiff’s Title VII and ICRA hostile work environment
claims based on both racial and sexual discrimination.
In order to establish a hostile work environment claim,
a plaintiff must prove the following:
“(1) [he] belonged to
harassment; (3) the harassment was based on” his status as a
protected class member; “and (4) the harassment affected a
term, condition, or privilege of [his] employment.”
Wax Works, Inc., 214 F.3d 999, 1006 (8th Cir. 2000).
environment claims, Defendant makes the following arguments:
(1) a majority of Plaintiff’s complaints related to Evelyn
DeVos are time-barred; (2) Plaintiff’s complaints are not
sufficiently severe or pervasive to affect a term, condition,
or privilege of his employment; and (3) Plaintiff’s unreported
environment. In relation to Plaintiff’s sexually hostile work
environment claims, Defendant makes the following arguments:
(1) Plaintiff admits that Defendant properly handled his
sexual harassment complaint, and that the harassment stopped;
(2) isolated incidents do not rise to the level of a sexual
harassment claim; (3) Plaintiff failed to report certain
comments; (4) Plaintiff participated in the sexual banter at
work; and (5) the comments made were not so severe as to
affect a term or condition of Plaintiff’s employment. Each of
these arguments will be considered successively throughout the
remainder of this Memorandum and Opinion Order.
A. Whether Plaintiff’s Racial Complaints are Time-Barred
42 U.S.C. § 2000e-5(e) provides that a charge under Title
VII must “be filed within one hundred and eighty days after
the alleged unlawful employment practice occurred . . . .”6
However, hostile work environment claims “do not take place in
a single day; rather they unfold over a period of time . . .
Inglis v. Buena Vista University, 235 F. Supp. 2d 1009,
1023 (N.D. Iowa 2002) (citing National Railroad Passenger
Corp. v. Morgan, 536 U.S. 101, 114 (2002)).
challenge incidents which happened outside the statutory time
limitations of Title VII if the various incidents or acts of
Jenkins v. Wal-Mart Stores, Inc., 910 F.
The charge may be filed within three hundred days after
the unlawful employment practice occurred if the person
aggrieved filed “with a state or local agency with authority
to grant or seek relief . . . or institute criminal
proceedings” for the practice in question, “or within thirty
days after receiving notice that the State or local agency has
terminated the proceedings . . . . whichever is earlier . . .
.” 42 U.S.C. 2000e-5(e).
Supp. 1399, 1413 (N.D. Iowa 1995) (citing Delaware State
College v. Ricks, 449 U.S. 250, 258 (1980)) (other citations
Since Plaintiff alleges he was called a “dumb
Mexican” and was told that Mexican’s have a small penis on a
nearly daily basis, Plaintiff has successfully alleged a
continuing pattern of discrimination.
filed a formal complaint against Ms. DeVos in April of 2009,
well within the statutory period.
Finally, Plaintiff alleges
a hostile work environment claim, and this Court should not
and will not determine whether the actions of individual
Plaintiff alleges a continuing patter of discrimination in the
Company as a whole.
Therefore, Defendant’s argument that
Plaintiff’s complaint is time-barred lacks merit.
Discrimination are Sufficiently Severe or Pervasive to Affect
a Term, Condition, or Privilege of His Employment
The Defendant cites case law for the proposition that
mandatory in the work place, her alleged micro management of
Plaintiff’s work, and her alleged statements that Plaintiff
was an “asshole” and should be told to “fuck off,” are, each
standing alone, insufficient to show it affected a term,
condition, or privilege of his employment.
Docket No. 15-1,
However, these allegations of misconduct against Ms.
behavior throughout the Company. In addition, Defendant fails
to note that Plaintiff alleges that Ms. DeVos regularly called
Plaintiff a “dumb Mexican” and often said other things behind
Plaintiff has leveled allegations not just against Ms. DeVos
but against other co-workers.
Again, the question is whether
there was a hostile work environment, not whether each and
every co-worker’s actions, when considered in a vacuum, is
Though neither party cites any applicable case law,
“[p]roving an actionable harm” involves “a high threshold” in
a hostile-work-environment claim. Duncan v. County of Dakota,
Neb., 687 F.3d 955, 959 (8th Cir. 2012).
Some of the factors
a court considers include “the frequency of the behavior, its
severity, whether physical threats are involved, and whether
the behavior interferes with plaintiff’s performance on the
Wright v. Rolette County, 417 F.3d 879, 885 (8th Cir.
2005) (citing Henthorn v. Capitol Communications, Inc., 359
F.3d 1021, 1026 (8th Cir. 2004)).
A court must consider “the
totality of the circumstances to determine if the environment
was sufficiently hostile.” Duncan, 687 F.3d at 959-60 (citing
Nitsche v. CEO of Osage Valley Elec. Coop., 446 F.3d 841, 846
(8th Cir. 2006)).
Plaintiff alleges he was subjected to a daily barrage of
inappropriate racial comments.
He also alleges that his co-
workers’ conduct, specifically that of Ms. DeVos, directly
related to and undermined his work performance. Therefore, in
this Court’s judgment, Plaintiff’s allegations are sufficient
to establish that his co-workers’ treatment affected a term,
condition, or privilege of his employment.
C. Whether Plaintiff’s Failure to Report His Co-workers’
Alleged Racial Discrimination Supports Summary Judgment
As previously noted, Plaintiff alleges he made numerous
complaints from 2007 up through his termination in late 2009.
Therefore, Defendants argument lacks merit.
D. Whether Defendant’s Argument that It Properly Handled
Plaintiff’s Sexual Harassment Complaints is Sufficient to
Support Summary Judgment
The Defendant cites a single answer from Plaintiff’s
deposition indicating that he felt Defendant properly handled
the complaint he lodged against one of his co-workers who was
spreading rumors about a romantic affair between himself and
a female co-worker.
However, Plaintiff alleges that the
comments related to the penis size of Mexicans went on from
2007 up to his termination in 2009. Plaintiff also alleges he
and his wife, Mrs. Torres, lodged several complaints in
Therefore, the Defendant’s argument lacks
Whether Plaintiff Alleges Isolated Incidents Not
Amounting to a Sexually Hostile Work Environment
comments about the size of Mexican penises on nearly a daily
basis up until his termination.
This does not constitute, by
Plaintiff also alleges that he received unwelcome sexual
advances from a co-worker, and, when he turned those advances
romantic affair between him and another female co-worker.
While the unwanted sexual advances and the subsequent rumors
isolated incidents; they must be viewed in conjunction with
the day-to-day sexual harassment Plaintiff alleges he faced,
and, are, therefore, not isolated. Overall, Defendant ignores
Plaintiffs allegation of nearly daily sexual harassment; and,
for this reason, its argument lacks merit.
Whether Plaintiff’s Purported Failure to Report
Certain Incidents of Harassment to his Supervisors Supports
Though it is not always clear what Plaintiff’s complaints
to his supervisors consisted of or when precisely they were
made, it is clear that he alleges that he made several
complaints beginning in 2007 up through 2009.
It is also
comments and sexually graphic behavior directed toward him in
Defendant’s argument lacks merit.
Whether Plaintiff’s Participation in the Sexually
Explicit Banter at Work Supports Summary Judgment
It is undisputed that Plaintiff made a silicone penis
that he knew a co-worker intended to place in a female coworker’s locker. It is also clear that once the female worker
complained, Plaintiff told her that if she couldn’t handle a
joke, she should not be joking in the first place.
a plaintiff’s failure to grasp the hypocrisy of some of his
Furthermore, unlike the allegedly repeated comments about the
size of Mexican penises, this was an isolated incident; and
attempted to initially participate in and laugh off the jokes
directed at him, he, at some point, felt they began to cross
H. Whether Comments Made Regarding Plaintiff’s Sexuality
were Sufficient to Affect a Term, Condition, or Privilege of
The Defendant does not make a clear argument related to
whether the comments made regarding Plaintiff’s sexuality were
sufficient to affect a term, condition, or privilege of his
Rather, the Defendant merely concludes, without
citing any case law, that “none of the conduct was so severe
or pervasive as to affect a term or condition of employment
(as judged by [Plaintiff’s] complicity and failure to report)
. . . .”
Docket No. 15-1, 19 and 20.
regarding improper sexual conduct.
As previously noted,
Furthermore, the single
incident in which Plaintiff made a penis out of silicone does
not mitigate the allegedly repeated comments relating to the
size of Mexican penises.
Though this Court thinks this case
is more appropriately understood as a racial, rather than
sexual, harassment case, the movant bears the initial burden
“of informing the district court of the basis for its motion
and identifying those portions of the record which show a lack
of genuine issue.” Hartnagel, 953 F.2d at 395. Defendant has
not done so; and, therefore, Defendant’s Motion for Summary
Judgment against Plaintiff’s sexually hostile-work-environment
claims are hereby denied.
Defendant’s Motion for Summary Judgment is hereby denied
as to all of Plaintiff’s claims.
IT IS SO ORDERED this 1st day of October, 2012.
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa
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