Robertson v. Siouxland Community Health Center et al

Filing 17

MEMORANDUM OPINION AND ORDER: Granting in Part and Denying in Part 4 Joint Motion for Partial Dismissal. Signed by Judge Mark W Bennett on 04/10/13. (kfs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
SHARON MARIE ROBERTSON,
No. C 13-4008-MWB
Plaintiff,
vs.
SIOUXLAND COMMUNITY HEALTH
CENTER and MICHELLE STEPHAN,
Defendants,

MEMORANDUM OPINION AND
ORDER REGARDING DEFENDANTS’
JOINT MOTION FOR PARTIAL
DISMISSAL

MICHELLE STEPHAN,
Counterclaimant,
vs.
SHARON MARIE ROBERTSON,
Counterclaim Defendant,
___________________________
TABLE OF CONTENTS
I. 

INTRODUCTION........................................................................... 3 
A. 
Factual Background ............................................................... 3 
B. 
Procedural Background ......................................................... 10 

II. 

LEGAL ANALYSIS ...................................................................... 13 
A. 
Standards For Dismissal Pursuant To Rule 12(b)(6) ...................... 13 
B. 
The Defendants’ Motion To Dismiss .......................................... 15 
1. 
Lack of Title VII protection for sexual orientation ................ 15 
2. 
Exhaustion of claims based on sex ................................... 17 
a. 
Arguments of the parties ....................................... 17 
b. 
Analysis ............................................................ 19 
i. 
The administrative exhaustion requirement ........ 19 

3. 

4. 
III. 

Exhaustion here ......................................... 22 
ii. 
Pleading of claims based on sex ....................................... 25 
a. 
Arguments of the parties ....................................... 25 
b. 
Analysis ............................................................ 27 
i. 
Harassment because of sex ............................ 27 
ii. 
Same-sex harassment ................................... 30 
iii.  Robertson’s
“same-sex
harassment”
allegations ................................................. 31 
Pleading of retaliation ................................................... 33 

CONCLUSION ............................................................................ 34 

In this action, the female former human resources director for a medical practice
alleges that the medical practice and its female chief executive officer discriminated
against and harassed her because of her sex and/or her sexual orientation and retaliated
against her for resisting a sexually hostile work environment, in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Iowa Civil Rights
Act (ICRA), IOWA CODE CH. 216, and discriminated against her because of her age, in
violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623 et
seq., and the ICRA. The defendants have filed a “Joint Partial Motion To Dismiss,”1

1

A “Joint Motion For Partial Dismissal” prompts the question, “What parts of
the complaint do you seek to dismiss?” In contrast, a “Joint Partial Motion To
Dismiss” prompts the question, “Where is the rest of your motion?” Notwithstanding
the misleading title of their motion, it appears that the defendants are actually asserting
a “Joint Motion For Partial Dismissal.”
2

asserting that Title VII provides no cause of action for discrimination or harassment
based on sexual orientation, that the plaintiff did not exhaust in administrative
proceedings any federal or state claims of discrimination or harassment because of her
sex, and that, because the plaintiff cannot state a sexual harassment claim, she also
cannot state a Title VII retaliation claim. Thus, the defendants contend that the only
claims that the plaintiff has stated upon which relief can be granted are her state sexual
orientation claims and her federal and state age discrimination claims. I must determine
what claims have been adequately pleaded and exhausted.
I.
A.

INTRODUCTION
Factual Background

“When ruling on a defendant’s motion to dismiss, a judge must accept as true all
of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)).
Thus, the factual background to a motion to dismiss must necessarily be drawn from the
plaintiff’s factual allegations.
In her Petition At Law (docket no. 2), originally filed in the Iowa District Court
for Woodbury County, then removed to this federal court, plaintiff Sharon Marie
Robertson alleges that, on or about January 2, 2004, she was hired by defendant
Siouxland Community Health Center (SCHC) in Sioux City, Iowa, as the human
resources director, and that she was discharged from her employment on or about
November 30, 2011. Robertson alleges that, at the pertinent times, defendant Michelle
Stephan was the chief executive officer (CEO) of SCHC and Robertson’s direct
superior.
Robertson alleges that, during her employment, she was subjected to a hostile
and pervasive atmosphere of discrimination and harassment “based on [her] sex/sexual
3

orientation.” Petition, ¶ 13. She alleges that the harassment included, but was not
limited to, “Defendant Stephan subject[ing] [her] to unwanted and unwelcomed sexual
comments, sexual questions, sexual conversations, sexual emails, sexual texts, and
sexual jokes,” including a list of twenty incidents. Id. at ¶ 13(a).2 Robertson alleges

2

Robertson alleges the following twenty incidents:
1.

Repeated inappropriate text messages, emails, phone
calls, and face-to-face conversations instigated by
Stephan directed to Robertson about [Robertson’s]
personal life and sexual orientation ([Robertson] is
lesbian).

2.

Since the beginning of Robertson’s hire, Robertson’s
sexual orientation and personal life has [sic] been a
constant [and] common theme and topic of
conversation of Stephan.

3.

In 2009 the volume and content of text and email
messages Robertson received from Stephan became
more than just inappropriate, they were harassing and
created a hostile work environment for Robertson.

4.

Stephan, during a business trip to Florida, texted
Robertson and asked Robertson if she knew of any
fun gay bars. Robertson reluctantly searched the
internet and sent her the information on entertainment
in the local area.

5.

In January of 2009 Robertson was subjected to
offensive jokes by Stephan’s husband. Stephan was
present at the time the offensive joke was told. The
[Chief Operating Officer (COO)] and Assistant
Medical Director were present at the time of the joke,
the CEO [Stephan] was in the area. Robertson
advised Stephan she and others were offended and
Stephan retaliated against Robertson by being rude
and difficult to Robertson for an extended period of
4

time, making Robertson’s job more difficult and
creating tension in the workplace.
6.

Sometime before November 2009, Stephan and the
COO of Siouxland Community Health Center were
on a business trip in Las Vegas. The COO informed
Robertson that she had to bring bar/party clothes for
Stephan to wear because Stephan didn’t want her
husband to see what kind of clothes she was going to
wear. Upon Stephan and the COO’s return, the COO
informed Robertson of her disgust with Stephan’s
drunken flirtation toward the soon-to-be business
partners of SCHC.

7.

During the same November 2009 business trip to Las
Vegas identified in paragraph 6, Robertson received
offensive, unwanted and unwelcomed inappropriate
text messages from Stephan and her husband about
gays and the following joke: “what did one lesbian
frog say to the other lesbian frog? It’s true, we do
taste like chicken.” Robertson did not respond back
to the offensive and humiliating joke. Later that same
night, Robertson received additional inappropriate
text messages from Stephan regarding a pierced
clitoris and if lesbians pierced their “clits.”
Robertson told Stephan not to text her anymore.
When Defendant Stephan returned to the office after
Los Vegas, Stephan excluded Robertson from
meetings for a long time and Stephan was
condescending and demeaning to Robertson. All of
this adversely impacted Robertson’s workplace
performance and made it more difficult for her to do
her job.

8.

Between November 2009 and April 2010, Robertson
received another text message from Stephan advising
Robertson that a colleague they worked with is not
gay. Robertson responded and asked how this came
5

up as a topic of discussion and why Stephan felt she
needed to inform the [sic] Robertson.
9.

Between November 2009 and April 2010 when
Defendant Stephan was on a business trip in Chicago,
Stephan sent Robertson multiple text messages asking
Robertson specific questions about homosexuals.
When Robertson did not respond right away to
Stephan, Stephan became hostile, which substantially
adversely affected Robertson’s job.

10.

Robertson received a text message from Defendant
Stephan asking “if lesbians like to be on top or
bottom?”.

11.

Stephan was inappropriately infatuated with
Robertson’s sexual orientation and openly shared and
discussed Robertson’s orientation with others.

12.

Between March and April of 2010, Robertson
informed Stephan that Robertson personally found
Stephan’s constant, non-work related texting during
work and non-work hours offensive and often times
harassing in nature and were inappropriate,
unwelcomed, unwanted and Stephan’s behavior was
greatly affecting Robertson’s personal life, family and
relationship with her partner and Robertson felt this
was producing an unhealthy working relationship
between her and Stephan.
The constant and
inappropriate emails and texting of unwanted and
unwelcomed sexual in nature themes from Stephan
greatly impacted Robertson’s personal life and health,
consequently affecting her work life, as well.

13.

Robertson and her partner’s long term relationship
came to an end in March 2010 because Robertson’s
partner believed that Stephan had a sexual attraction
to Robertson and possessed a strong control over
Robertson as she learned of and witnessed Stephan’s
inappropriate texts and emails.
6

14.

In August or September of 2010 during a strategic
budget planning meeting at Stephan’s house it was
stated to Robertson that Stephan’s husband was
infatuated with Robertson. Stephan acknowledged the
infatuation and laughed at Robertson and said “I
know.”

15.

During the January 15, 2011 company holiday party,
Defendant Stephan’s husband asked Robertson in
front of other Siouxland Community Health Center
staff if Robertson thought his wife, Stephan, would
make a good lesbian and if Robertson had heard the
lesbian frog joke. Robertson advised Defendant
Stephan that she did not appreciate her husband’s
comments. Stephan in retaliation never acknowledged
the incident and was very cold and distant from
Robertson during the next few weeks at work,
creating a hostile and retaliatory work environment.
Part of the retaliation was Stephan not including
Robertson in necessary and important business
meetings.

16.

At the beginning of 2011, Stephan sent Robertson a
text message with the subject of wanting to “off” her
husband and she asked Robertson if Robertson knew
of any “big, butch dyke lesbians” to “take him out
and make it look like an accident.”

17.

Stephan, while going through her divorce, sent
Robertson texts and emails regarding her divorce, her
dislike of her soon-to-be ex-husband and how she was
considering hooking up with a woman so she
wouldn’t have to deal with men and wondering if
black men were any better than white men. By doing
so, Stephan created a sexually hostile work
environment for Robertson and adversely affected her
job.
7

18.

Stephan told Robertson at the end of Stephan’s
divorce that Stephan’s husband called Stephan
screaming and telling her she was divorcing him
because she’s a lesbian and “wants to f... me
[Robertson] and not him.” Robertson told Stephan
that Stephan offended her, that Robertson would
never be with Stephan and that Robertson did not
appreciate being brought into her divorce. Stephan
responded by laughing. Robertson later told the COO
of Siouxland Community Health Center that
Robertson was upset and offended by Defendant
Stephan’s comments and that Robertson did not
appreciate being brought into Stephan’s personal life
and did not like her sexual orientation being a topic of
discussion and that it was extremely offensive,
unwanted and unwelcome. After Robertson told the
COO that, and Robertson believes as a consequence
of it, Stephan, in retaliation, treated Robertson poorly
and barely acknowledged Robertson’s existence at
work. This created a hostile work environment and
adversely affected Robertson’s job.

19.

In retaliation for Robertson objecting to and not
participating in the sexually hostile environment
created by Stephan, Stephan, [Robertson’s] direct
supervisor, challenged at every opportunity, what
Robertson said to her staff, publically [sic]
humiliating and abusing Robertson. By doing so,
Stephan undermined Robertson’s authority and
credibility and made Robertson’s job more difficult.
It created divisions within the office that made
everyone’s job more difficult.

20.

Several times from August 2011 to October 2011, the
COO of Siouxland Community Health Center
complained to Robertson about Defendant Stephan’s
cleavage and inappropriate exposure of her bust.
Because Robertson was the Human Resource
Director, it was her job to bring this to Defendant
8

that the defendants knew or should have known of the hostile environment and
discrimination, but that they failed to take corrective action and, indeed, encouraged the
harassment and retaliated against her for objecting to it. Id. at ¶ 15. Robertson alleges
that the harassment and discrimination ultimately resulted in her discharge from
employment with SCHC—indeed, it does not appear that she alleges any form of
discrimination, as distinguished from harassment or retaliation, other than her
discharge. Id. at ¶ 11. Robertson also alleges that she “resisted the sexually hostile
work environment fostered by the Defendants’ conduct” by complaining about it to
SCHC, Stephan, and other SCHC staff, but instead of taking appropriate action to end
the harassment, the defendants retaliated against her “through adverse employment
actions, up to and including termination.” Id. at ¶¶ 18-20.3
Robertson alleges that she filed a timely Complaint of Discrimination with the
Iowa Civil Rights Commission (ICRC) and the Equal Employment Opportunity
Commission (EEOC) and that she was issued “right to sue” letters by both
commissions. She alleges that, thereafter, she timely filed this lawsuit. Id. at ¶¶ 6-8.

Stephan’s attention. Robertson was afraid of
Stephan’s retaliation and potentially losing her job for
making corrections like this, based on Stephan’s
pattern of behavior, but she did bring this to
Stephan’s attentions. During the month of November,
2011 Stephan did not include Robertson in meetings
and often canceled a meeting or a scheduled
discussion with Robertson. This was retaliation
against Robertson for doing her job and for objecting
to the sexually hostile environment created by
Stephan.
Petition, ¶ 13(a)(1)-(20).
3

The defendants do not challenge Robertson’s age discrimination claims, so I
will not summarize her pleading of those claims here.
9

Robertson has attached her administrative Complaint of Discrimination to her Petition
as Exhibit A.
The claims asserted in Robertson’s administrative charge and, consequently, the
claims that are exhausted for purposes of her lawsuit, are in dispute. For the moment,
I note that, in response to Question 6, which asked Robertson to “[p]lease check the
ACTION that the Organization took against you. (Check all that apply),” Robertson
checked “Harassment,” “Sexual Harassment,” and “Terminated,” and also wrote in
after “Other,” “Hostile, volital [sic] work environment.” On the other hand, in answer
to Question 9, which asked, “Do you believe you were discriminated against because of
your sex?,” Robertson answered “no,” and in response to Question 10, which asked,
“Do you believe you were discriminated against because of your sexual orientation?,”
Robertson answered “yes” and indicated that her sexual orientation is “Lesbian.”
Also, in pertinent part, Robertson’s Complaint of Discrimination states, in response to
Question 17, that Robertson believed that she was treated differently since she
complained about discrimination, explaining how she was retaliated against and by
whom by stating, “Termination, Hostile work place by Michelle Stephan, Siouxland
Community Health Center CEO.”

The administrative Complaint of Discrimination

includes a 14-page typed narrative explaining the alleged discrimination, harassment,
and retaliation. It also includes a 3-page list of reasons that Robertson claims that she
was given for her termination, relating to alleged performance issues, with Robertson’s
response to each allegation.

B.

Procedural Background

Robertson filed her Petition At Law in the Iowa District Court for Woodbury
County on November 27, 2012. On January 17, 2013, the defendants removed this
action to this federal court on the basis of federal question jurisdiction and supplemental
10

jurisdiction over Robertson’s state law claims. See Joint Notice Of Removal (docket
no. 1). After removal, Robertson’s state court Petition was refiled in this court at
docket number 2. The Petition states that Robertson’s “causes of action are brought
pursuant to the Iowa Civil Rights Act, Iowa Code Chapter 216, Title VII, and the Age
Discrimination In Employment Act where relevant.” Petition at ¶ 9. Count I asserts a
claim of “Hostile Work Environment And Discrimination Based On Sex/Sexual
Orientation,” Count II asserts a claim of “Retaliation,” alleging that Robertson resisted
and complained about “the sexually hostile work environment” created by the
defendants’ conduct, and that Robertson suffered retaliation for such resistance and
complaints, up to and including termination, and Count III asserts a claim of “Age
Discrimination.” None of the counts alleges the specific legal basis for the claim or
claims stated therein, so that, like the defendants, I will assume that each count is based
on both state and federal law. On Counts I and II, Robertson seeks compensatory
damages, including back pay, front pay, benefits, training, promotions, and seniority;
damages for past and future emotional distress and other non-pecuniary losses; punitive
damages; past and future medical and counseling expenses; injunctive relief; costs,
expenses, and attorneys’ fees; interest; and such other relief as the court deems proper.
On Count III, she seeks essentially the same damages, with the exceptions that she
seeks “liquidated/punitive damages,” rather than punitive damages, and she does not
seek injunctive relief. By Order (docket no. 16), dated February 26, 2013, trial in this
matter is set to begin on May 27, 2014.
On January 22, 2013, the defendants filed the “Joint Partial Motion To Dismiss
Plaintiff’s Petition” (docket no. 4), which is now before me. Also on January 22,
2013, SCHC filed its Answer (docket no. 5), and Stephan filed her separate Answer,
Affirmative Defenses, And Counterclaim (docket no. 6), denying Robertson’s claims.
Stephan’s Counterclaim alleges that Robertson’s administrative charge is frivolous,
11

unreasonable, and groundless, and that the allegations were not made for their intended
purpose, but for the improper purpose of shifting the blame for her discharge from her
to Stephan, in the hopes of extracting some monetary concession, which has damaged
Stephan’s personal and professional reputation, Stephan’s relationship with her current
employer, and Stephan’s prospects for future professional development. Counterclaim
(docket no. 6).4
On February 1, 2013, Robertson filed her Answer To Defendant Michelle
Stephan’s Counterclaim (docket no. 7), denying Stephan’s Counterclaim. On February
15, 2013, Robertson filed her Resistance To Defendants Siouxland Community Health
Center’s And Michelle Stephan’s Joint Partial Motion To Dismiss Plaintiff’s Petition
(docket no. 11), conceding that Title VII does not provide protection from sexual
orientation discrimination, but asserting that she has properly exhausted and pleaded
claims of sexual discrimination, sexual harassment, and retaliation for complaining
about sexual harassment under Title VII and the ICRA, under a “same-sex harassment”
theory. The defendants filed a Joint Reply Brief (docket no. 15), in further support of
their motion to dismiss on February 22, 2013.
The defendants requested oral arguments on their motion to dismiss. I conclude,
however, that the parties have adequately briefed the issues and that oral arguments are
unlikely to be beneficial. Therefore, I will consider the motion on the parties’ written
submissions.

4

I will not speculate here on whether this Counterclaim alleges defamation,
abuse of process, or some other tort or torts.
12

II.
A.

LEGAL ANALYSIS

Standards For Dismissal Pursuant To Rule 12(b)(6)

The defendants seek dismissal of Robertson’s Petition, pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure, which authorizes a pre-answer motion to
dismiss for “failure to state a claim upon which relief can be granted.” FED. R. CIV. P.
12(b)(6). As the Eighth Circuit Court of Appeals recently explained,
We review de novo the district court’s grant of a
motion to dismiss, accepting as true all factual allegations in
the complaint and drawing all reasonable inferences in favor
of the nonmoving party. See Palmer v. Ill. Farmers Ins.
Co., 666 F.3d 1081, 1083 (8th Cir. 2012); see also
Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009) (internal quotation omitted). “A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id.
Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 850 (8th Cir. 2012); accord Freitas
v. Wells Fargo Home Mortg., Inc., 703 F.3d 436, 438 (8th Cir. 2013) (quoting Richter,
686 F.3d at 850); Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012) (stating
the same standards).
Courts consider “plausibility” by “‘draw[ing] on [their own] judicial experience
and common sense,’” Whitney, 700 F.3d at 1128 (quoting Iqbal, 556 U.S. at 679), and
“‘review[ing] the plausibility of the plaintiff’s claim as a whole, not the plausibility of
each individual allegation.’” Id. (quoting Zoltek Corp. v. Structural Polymer Grp., 592
F.3d 893, 896 n.4 (8th Cir. 2010)). The Eighth Circuit Court of Appeals has refused,
at the pleading stage, “to incorporate some general and formal level of evidentiary
13

proof into the ‘plausibility’ requirement of Iqbal and Twombly.” Id. Nevertheless, the
question “is not whether [the pleader] might at some later stage be able to prove [facts
alleged]; the question is whether [it] has adequately asserted facts (as contrasted with
naked legal conclusions) to support [its] claims.” Id. at 1129. Thus,
[w]hile this court must “accept as true all facts pleaded by
the non-moving party and grant all reasonable inferences
from the pleadings in favor of the non-moving party,”
United States v. Any & All Radio Station Transmission
Equip., 207 F.3d 458, 462 (8th Cir. 2000), “[a] pleading
that offers ‘labels and conclusions’ or ‘a formulaic recitation
of the elements of a cause of action will not do.’” Iqbal,
556 U.S. at 678, 129 S.Ct. 1937 (quoting [Bell Atl. Corp.
v.] Twombly, 550 U.S. [544,] 555, 127 S.Ct. 1955
[(2007)]).
Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012); Whitney, 700 F.3d
at 1128 (stating the same standards).5

5

In assessing “plausibility,” as required by the Supreme Court in Iqbal, the
Eighth Circuit Court of Appeals has explained that courts “consider[ ] only the
materials that are ‘necessarily embraced by the pleadings and exhibits attached to the
complaint,’” Whitney, 700 F.3d at 1128 (quoting Mattes v. ABC Plastics, Inc., 323
F.3d 695, 697 n.4 (8th Cir. 2003)), and “‘materials that are part of the public record or
do not contradict the complaint.’” Miller v. Redwood Toxicology Lab., Inc., 688 F.3d
928, 931 (8th Cir. 2012) (quoting Porous Media Corp. v. Pall Corp., 186 F.3d 1077,
1079 (8th Cir. 1999), and citing Illig v. Union Elec. Co., 652 F.3d 971, 976 (8th Cir.
2011)). A more complete list of the matters outside of the pleadings that the court may
consider, without converting a Rule 12(b)(6) motion to dismiss into a Rule 56 motion
for summary judgment, pursuant to Rule 12(d), includes “‘matters incorporated by
reference or integral to the claim, items subject to judicial notice, matters of public
record, orders, items appearing in the record of the case, and exhibits attached to the
complaint whose authenticity is unquestioned.’” Miller, 688 F.3d at 931 n.3 (quoting
5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 1357 (3d ed. 2004)). The parties both rely on the administrative
Complaint Of Discrimination attached to Robertson’s Petition as Exhibit A in support
of and resistance to the motion to dismiss, and I find that I may also properly consider
14

B.

The Defendants’ Motion To Dismiss

Here, the defendants seek dismissal of Robertson’s Title VII claims based on
sexual orientation and her Title VII and state law claims based on sex on the following
grounds: (1) Title VII provides no protection for sexual orientation; (2) Robertson did
not exhaust administrative remedies on her Title VII or state law claims based on sex;
(3) assuming that Robertson did exhaust her claims based on sex, she has not
adequately pleaded claims based on sex, rather than claims based on sexual orientation;
and (4) Robertson’s failure to allege sexual harassment means that she cannot assert a
claim for retaliation for complaining about a sexually hostile work environment. I will
consider these grounds for dismissal in turn.
1.

Lack of Title VII protection for sexual orientation

The defendants argue that it is well-settled that Title VII’s prohibitions against
discrimination and harassment based on sex do not include discrimination based on
sexual orientation.

Thus, they contend that Robertson’s Title VII claims based on

sexual orientation in Count I must be dismissed. Robertson acknowledges that, under
the current state of federal law, discrimination based on sexual orientation generally is
not covered by Title VII, so that her causes of action based on sexual orientation
discrimination in Count I can proceed only under the ICRA, IOWA CODE § 216.6(1)(a).
Title VII makes it “an unlawful employment practice for an employer . . . to fail
or refuse to hire . . . or otherwise to discriminate against any individual . . . because of
such individual’s . . . sex.”

42 U.S.C. § 2000e–2(a)(1).

Although courts have

that exhibit. See Blakely v. Schlumberger Tech. Corp., 648 F.3d 921, 931 (8th Cir.
2011) (“We have previously held that an EEOC charge is a part of the public record
and may be considered on a motion to dismiss.” (citing Faibisch v. Univ. of Minn.,
304 F.3d 797, 802–03 (8th Cir. 2002)).
15

recognized that “[g]ender stereotyping can violate Title VII when it influences
employment decisions,” see Hunter v. United Parcel Serv., Inc., 697 F.3d 697, 702
(8th Cir. 2012) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989)), and
the Supreme Court has recognized that Title VII may protect against “same-sex
harassment,” if it is shown to be “because of sex,” see Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 80 (1998), the Eighth Circuit Court of Appeals, like other
courts, has concluded that “Title VII does not prohibit discrimination against
homosexuals.” Williamson v. A.G. Edwards and Sons, Inc., 876 F.2d 69, 70 (8th Cir.
1989); accord Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006)
(concluding that, under Title VII, “sexual orientation is not a prohibited basis for
discriminatory acts”); Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058, 1066
(7th Cir. 2003) (concluding that a claim of harassment on the basis of sexual orientation
cannot give rise to a Title VII retaliation claim); Bibby v. Philadelphia Coca Cola
Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001) (“Title VII does not prohibit
discrimination based on sexual orientation. Congress has repeatedly rejected legislation
that would have extended Title VII to cover sexual orientation.”). Robertson does not
assert that she is alleging harassment because of sex arising from rumors that falsely
labeled her a lesbian in an effort to debase her femininity. Cf. Schmedding v. Tnemec
Co., Inc., 187 F.3d 862, 865 (8th Cir. 1999) (considering a male plaintiff’s claim
alleging that he was falsely labeled a homosexual to debase his masculinity). Rather,
she acknowledges that she is a lesbian and she alleges that she was harassed and
discriminated against both because of her sex (female) and because of her sexual
orientation (lesbian). Title VII has not been construed to permit the latter claim.
Therefore, the part of the defendants’ motion to dismiss seeking dismissal of
Title VII claims in Count I based on sexual orientation is granted. On the other hand,
the ICRA expressly prohibits discrimination based on “sexual orientation,” see IOWA
16

CODE § 216.6(1)(1),6 so that Robertson’s claims of discrimination and harassment
based on sexual orientation may proceed under state law.
2.

Exhaustion of claims based on sex

Next, the defendants seek dismissal of Robertson’s Title VII and state law claims
based on sex, because they contend that Robertson failed to exhaust those claims by
raising them in her administrative charge. Unlike the first issue in the defendants’
motion for partial dismissal, this issue is hotly contested.
a.

Arguments of the parties

The defendants argue that Robertson’s completed ICRC complaint form shows
that she expressly answered “no” to the question, “Do you believe you were
discriminated against because of your sex?” They also argue that Robertson’s narrative
attached to her administrative charge made it abundantly clear that her complaint of
discrimination and/or harassment is based on her sexual orientation, not on her gender.
Therefore, they argue that Robertson’s federal and state claims for discrimination and
harassment based on sex should be dismissed for failure to exhaust administrative
remedies with respect to those claims.
6

This provision of the ICRA provides, in pertinent part, as follows:
1.
for any:

It shall be an unfair or discriminatory practice

a.
Person to refuse to hire, accept, register,
classify, or refer for employment, to discharge any
employee, or to otherwise discriminate in employment
against any applicant for employment or any employee
because of the . . . sexual orientation . . . of such applicant
or employee, unless based upon the nature of the
occupation. . . .
IOWA CODE § 216.6(a)(1).
17

Robertson argues that she did, in fact, exhaust her claims of discrimination and
harassment based on sex.

She argues that answering “no” to one question in the

administrative charge about whether or not she believed that she was discriminated
against because of her sex is not the end of the inquiry. Instead, she argues that the
facts that she alleged in her administrative charge indicate that the hostile work
environment created by Stephan’s actions was, at least in part, because of Stephan’s
sexual desires toward those of the same sex, which creates a viable cause of action for
“same-sex harassment” under Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75
(1998).

Robertson then cites portions of her administrative charge that she argues

demonstrate that the harassment to which she was subjected was related to Stephan’s
sexual attraction to lesbians. Robertson argues that these statements by Stephan give
context to earlier and later harassment, which Robertson had noted indicated that
Stephan was “inappropriately infatuated” with Robertson’s sexual orientation.
Robertson argues that these allegations were sufficient to put the defendants and the
ICRC on notice that she was claiming that Stephan was sexually harassing her due to
same-sex sexual desires.

Consequently, she argues that she did exhaust her

administrative remedies on her claims of discrimination and harassment because of sex
under Title VII and Iowa law.
In reply, the defendants argue that I should not simply ignore Robertson’s
negative answer to the pertinent question about sexual discrimination in the
administrative charge and that I cannot reasonably read or interpret Robertson’s
allegations of “sexual attraction” in her administrative charge as allegations of “samesex harassment.” They argue that Robertson did not simply “forget” to check the
appropriate box for sexual discrimination or sexual harassment, she expressly rejected
or disclaimed such claims. They also argue that allegations of sexual attraction or
sexual desire do not, in and of themselves, amount to harassment or discrimination.
18

They argue that Robertson is now simply conflating “sexual attraction” with “sexual
harassment,” so that she has not exhausted administrative remedies as to any sexual
discrimination or sexual harassment claims.
b.

Analysis
i.

The administrative exhaustion requirement

The Eighth Circuit Court of Appeals recently explained the nature of the
administrative exhaustion requirement under Title VII, as follows:
Title VII requires that before a plaintiff can bring suit in
court to allege unlawful discrimination, she must file a
timely charge with the EEOC or a state or local agency with
authority to seek relief. 42 U.S.C. § 2000e–5(e)(1); Nat'l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109, 122
S.Ct. 2061, 153 L.Ed.2d 106 (2002); Alexander v.
Gardner–Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 39
L.Ed.2d 147 (1974); Williams v. Little Rock Mun. Water
Works, 21 F.3d 218, 222 (8th Cir. 1994). Congress set up
an elaborate administrative procedure, implemented through
the EEOC, that is designed “to assist in the investigation of
claims of ... discrimination in the workplace and to work
towards the resolution of these claims through conciliation
rather than litigation.” Patterson v. McLean Credit Union,
491 U.S. 164, 180–81, 109 S.Ct. 2363, 105 L.Ed.2d 132
(1989), superseded by statute on other grounds, Civil Rights
Act of 1991, Pub.L. No. 102–166, 105 Stat. 1071. The text
of the statute on exhaustion provides:
A charge under this section shall be filed within one
hundred and eighty days after the alleged unlawful
employment practice occurred and notice of the
charge (including the date, place and circumstances of
the alleged unlawful employment practice) shall be
served upon the person against whom such charge is
made within ten days thereafter.
42 U.S.C. § 2000e–5(e)(1) (emphases added). If the agency
dismisses the charge and notifies the complainant of her
19

right to sue, then the complainant has ninety days to bring a
civil action in federal court. Id. § 2000e–5(f)(1).
Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 850-51 (8th Cir. 2012) (rejecting
the plaintiff’s contention that retaliation claims arising from a charge filed with the
EEOC did not require exhaustion).
As to the effect and scope of exhaustion, the Eighth Circuit Court of Appeals has
explained,
The employee may not bring allegations in a Title VII action
if they go beyond those that “could reasonably be expected
to grow out of the charge of discrimination” filed with the
EEOC. Kells v. Sinclair Buick–GMC Truck, Inc., 210 F.3d
827, 836 (8th Cir. 2000) (internal quotation omitted). While
a charge of discrimination “need not specifically articulate
the precise claim, it must nevertheless be sufficient to give
the employer notice of the subject matter of the charge and
identify generally the basis for a claim.” Humphries v.
Pulaski Cnty. Special Sch. Dist., 580 F.3d 688, 697 (8th
Cir.2009) (internal quotation omitted).
Malone v. Ameren UE, 646 F.3d 512, 516 (8th Cir. 2011); Bissada v. Arkansas
Children’s Hosp., 639 F.3d 825, 830 (8th Cir. 2011) (“‘The exhaustion requirement
may be satisfied if the civil claim grows out of or is like or reasonably related to the
substance of the allegations in the administrative charge, but the civil suit can be only
as broad as the scope of any investigation that reasonably could have been expected to
result from the initial charge of discrimination.’” (quoting Fanning v. Potter, 614 F.3d
845, 851–52 (8th Cir. 2010)).
The Eighth Circuit Court of Appeals has explained why courts must consider
what is alleged in the administrative complaint to determine the scope of what is
exhausted, as follows:
“[C]ourts should not use Title VII’s administrative
procedures as a trap for unwary pro se civil-rights
20

plaintiffs.... We ..., therefore, when appropriate, construe
civil-rights and discrimination claims charitably.” Shannon
[v. Ford Motor Co.], 72 F.3d [678,] 685 [(8th Cir. 1996)];
accord Cobb [v. Stringer], 850 F.2d [356,] 359 [(8th Cir.
1988)] (noting that discrimination complainants oftentimes
file EEOC charges without legal assistance and observing
that courts must “interpret[ ] [administrative charges] with
the utmost liberality in order not to frustrate the remedial
purposes of Title VII.”). Even so, “there is a difference
between liberally reading a claim which ‘lacks specificity,’
and inventing, ex nihilo, a claim which simply was not
made.” Shannon, 72 F.3d at 685 (internal citation omitted).
Duncan v. Delta Consol. Indus., Inc., 371 F.3d 1020, 1025 (8th Cir. 2004), abrogated
on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011) (en
banc).
The Eighth Circuit Court of Appeals has applied this “exhaustion” standard
focusing on the substance of allegations in the administrative charge to determine the
scope of administrative exhaustion where a plaintiff failed to check the box on the
administrative complaint identifying a claim that the plaintiff later tried to bring in
court. See Tyler v. University of Ark. Bd. of Trustees, 628 F.3d 980, 989 (8th Cir.
2011) (considering whether the plaintiff ever mentioned gender in his administrative
complaint

or

made

other

allegations

indicative

of

gender

discrimination,

notwithstanding his failure to check the box indicating that his complaint involved
gender discrimination, where his administrative charge was plainly addressed to racial
discrimination); Bainbridge v. Loffredo Gardens, Inc., 376 F.3d 756, 760 (8th Cir.
2004) (concluding that a “retaliation” claim was not administratively exhausted where
the plaintiff did not check the “retaliation” box on the civil rights complaint form “and
did not allege any facts in the complaint form connecting his termination with his
alleged complaint about the racial slurs” and the ICRC investigator had not addressed
“retaliation’ because the plaintiff “‘did not directly allege retaliation’”). On the other
21

hand, in Blakely v. Schlumberger Tech. Corp., 648 F.3d 921, 931 (8th Cir. 2011), the
Eighth Circuit Court of Appeals affirmed the district court’s dismissal of gender and
disability claims for lack of exhaustion, where the plaintiff did not challenge the district
court’s conclusion that she failed to exhaust her administrative remedies by failing to
check the boxes for “sex” and “disability” discrimination.
ii.

Exhaustion here

Here, the defendants argue that Robertson did not merely fail to check the box
for discrimination or harassment based on sex, she expressly stated that she was not
alleging sex discrimination in answer to a specific inquiry in the administrative
complaint form. Compare Tyler, 628 F.3d at 989; Bainbridge, 376 F.3d at 760. I also
note that, unlike most pro se civil-rights plaintiffs, who might be trapped by unwary
completion of an administrative charge and, therefore, whose administrative claims
should be construed “charitably,” see Duncan, 371 F.3d at 1025, Robertson was a
human resources professional who might be presumed to know the difference between
and the legal basis for protection from discrimination because of sex versus
discrimination because of sexual orientation.

Also, the defendants are correct that

Robertson answered “no” to Question 9 in her administrative charge about whether she
was discriminated against because of sex, and “yes” to Question 10, which asked, “Do
you believe you were discriminated against because of your sexual orientation?”
Nevertheless, I do not agree with the defendants that Robertson has failed to
exhaust any claims based on sex. The defendants’ argument that Robertson disclaimed
any claim based on sex conveniently ignores that, in response to Question 6, which
asked her to “[p]lease check the ACTION that the Organization took against you.
(Check all that apply),” Robertson checked “Harassment,” “Sexual Harassment,” and
“Terminated,” and also wrote in after “Other,” “Hostile, volital [sic] work
environment.”

Thus, her responses to Question 6 and Question 9 appear to be
22

contradictory. Where Robertson, who was unrepresented at the time, gave apparently
contradictory indications of the basis for her civil rights complaint in an administrative
charge, I believe that the “liberal” or “charitable” reading requirement for
administrative charges, Duncan, 371 F.3d at 1025, the consideration of claims that
could reasonably be expected to grow out of the administrative charge and what notice
the employer has received, Malone, 646 F.3d at 516, and the scope of any investigation
that reasonably could be expected to result from the initial charge of discrimination,
Bissada, 639 F.3d at 830, all suggest that Robertson was asserting both discrimination
based on sex and discrimination based on sexual orientation.
Furthermore, I believe that the substance of the allegations in Robertson’s
administrative charge is more important than what boxes she marked or what answers
she gave to yes/no questions on the administrative complaint form.

Although the

Eighth Circuit Court of Appeals in Blakely affirmed the district court’s conclusion that
the plaintiff had failed to exhaust her administrative remedies by failing to check the
boxes for “sex” and “disability” discrimination, the plaintiff in that case did not
challenge that conclusion. See 648 F.3d at 931. In contrast, the Eighth Circuit Court
of Appeals focused on the substance of the allegations in the administrative charge in
other cases in which the parties did dispute what claims are exhausted. See Tyler, 628
F.3d at 989; Bainbridge, 376 F.3d at 760. Because the parties here dispute the scope
of exhaustion, I believe that I must also focus on the substance of Robertson’s
allegations in her administrative charge, not just on her answers to certain questions on
the form complaint.
Here, contrary to the defendants’ arguments, the substance of the allegations in
Robertson’s administrative charge does not relate exclusively to discrimination and
harassment based on sexual orientation.

Rather, I find that the substance of

Robertson’s allegations in her administrative charge reasonably gave SCHC notice that
23

discrimination and harassment because of sex were also at issue and that an
investigation of discrimination and harassment claims because of sex reasonably could
have been expected from the substance of Robertson’s allegations in her administrative
charge.

See Malone, 646 F.3d at 516 (considering whether the administrative

complaint is sufficient to give the employer notice of the subject matter of the charge
and identify generally the basis for a claim); Bissada, 639 F.3d at 830 (“‘The
exhaustion requirement may be satisfied if the civil claim grows out of or is like or
reasonably related to the substance of the allegations in the administrative charge, but
the civil suit can be only as broad as the scope of any investigation that reasonably
could have been expected to result from the initial charge of discrimination.’” (quoting
Fanning, 614 F.3d at 851–52)).
For example, in the narrative to her administrative charge, Robertson alleged
that she was terminated, inter alia, for complaining that Stephan’s “sexual oriented or
sexual in nature jokes, comments, questions, and conversations directed to [Robertson]
or about [Robertson] were offensive, unwanted and unwelcomed and [for asking
Stephan] on numerous occasions to refrain from any communication referring to
sexually oriented, sexual in nature, or personal topics.” Petition, Exhibit A, narrative
at 1 (docket no. 2 at 18) (emphasis added). The administrative complaint also contains
allegations of numerous incidents of harassment, admittedly more often specifically
identifying Robertson’s sexual orientation as the topic of the harassment, but Robertson
also alleged in her administrative charge that the harassment in 2010 was targeted
toward her sexual orientation, while the harassment in 2011 became more “sexual in
nature.” Petition, Exhibit A, narrative at 10 (docket no. 2 at 27). Furthermore, as
Robertson argues, the administrative charge alleges numerous incidents indicating
Stephan’s apparent attraction to lesbians, which reasonably suggest “sexual desire” for
persons of her own gender on Stephan’s part as a basis for all of her harassment of
24

Robertson. As explained in more detail, below, proof of “sexual desire” is one of the
three evidentiary routes for proof that “same-sex harassment” is “because of sex”
under Oncale. See Smith v. Hy-Vee, Inc., 622 F.3d 904, 908 (8th Cir. 2010) (citing
Oncale, 523 U.S. at 80-81).

The incidents alleged in the administrative charge

indicating Stephan’s same-sex sexual desire include the following: (1) Stephan asking
Robertson “how do you pick up a gay person,” Petition, Exhibit A at 3-4 (docket no. 2
at 20-21); (2) Stephan telling Robertson that she “was considering hooking up with a
woman,” see id. at 6 (docket no. 2 at 23); and (3) Stephan bringing up how her
husband believed that she was sexually attracted to Robertson and that this was the
basis for the divorce, see id. Thus, a conclusion that Robertson did administratively
exhaust discrimination and harassment claims based on sex is an appropriate liberal
reading of her administrative charge, not the invention of claims ex nihilo that simply
were not made. Duncan, 371 F.3d at 1025.
Under these circumstances, I conclude that the portion of the defendants’ motion
to dismiss seeking dismissal of Robertson’s claims alleging discrimination and
harassment because of sex for failure to administratively exhaust them is denied.
3.

Pleading of claims based on sex

Next, the defendants contend that, even if Robertson exhausted her claims based
on sex, she has not adequately pleaded in her Petition that she was subjected to
discrimination or harassment because she is a woman, rather than because she is a
lesbian. This contention is also hotly contested.
a.

Arguments of the parties

In their opening brief, the defendants assert that the allegations in Robertson’s
Petition fall far short of providing the facts necessary to state a plausible claim for
discrimination or harassment because of Robertson’s sex, under either Title VII or the
ICRA. They argue that, although Robertson makes conclusory allegations that she was
25

subjected to unwanted or unwelcome sexual comments, questions, conversations, texts,
and jokes, the examples pleaded all deal with her sexual orientation, not her status as a
woman. The defendants assert that Robertson’s Petition is devoid of allegations that
men were treated more favorably than she was or that the harassment she allegedly
suffered was because of her gender, rather than because of her sexual orientation.
Robertson responds that her claims of discrimination and harassment because of
sex are based on the recognition of same-sex harassment claims in Oncale and, more
specifically still, based on adequate allegations that Stephan’s harassing conduct was
motivated by sexual desire. Robertson argues that she does not have to prove that
Stephan is a homosexual or investigate Stephan’s sexual history to establish that
Stephan discriminated against her because she is a woman, as long as she has alleged
conduct directed at her that allows the inference that she was harassed because she is a
woman.

Thus, Robertson argues that she has pleaded sufficient facts to make a

plausible claim that Stephan’s harassing actions were motived by same-sex attraction or
desire.
In reply, the defendants argue that “same-sex attraction” is not the same as
“same-sex harassment” and that Robertson may have alleged “same-sex attraction,” but
she has not alleged the existence of harassment on the basis of her gender. In other
words, they argue that the substance of Robertson’s allegations does not sufficiently
allege conduct amounting to a hostile work environment, as a matter of law, because
the conduct alleged is not sufficiently severe to create a hostile work environment.
They argue that, putting aside Robertson’s pleading of labels and conclusions that the
conduct was “unwelcome” and “harassing,” it is “obvious” from the substance of the
conduct alleged that Robertson does not meet the elements required to establish a valid
claim of sexual harassment or sexual discrimination.

26

b.

Analysis
i.

Harassment because of sex

In considering the adequacy of the pleading of Robertson’s sex discrimination
and sexual harassment claims, I will not distinguish between her claims under Title VII
and comparable claims under the ICRA. I have previously noted that “[i]t is widely
accepted in the Eighth Circuit that generally no distinction is made between claims
based on federal law and comparable state law claims under the ICRA.” Soto v. John
Morrell & Co., 285 F. Supp. 2d 1146, 1177–78 (N.D. Iowa 2003) (citing Hannoon v.
Fawn Eng’g Corp., 324 F.3d 1041, 1046 (8th Cir. 2003); Beard v. Flying J, Inc., 266
F.3d 792, 798 (8th Cir. 2001)); see Mercer v. City of Cedar Rapids, 308 F.3d 840, 845
n.2 (8th Cir. 2002) (noting, in a sex discrimination case, “‘The [Iowa Civil Rights Act]
is interpreted to mirror federal law. . . . Thus, our analysis of [plaintiff’s Title VII]
claim applies equally to [her] ICRA claim.’” (quoting Fisher v. Pharmacia & Upjohn,
225 F.3d 915, 919 n.2 (8th Cir. 2000)); see also Boyle v. Alum-Line, Inc., 710
N.W.2d 741, 750 (Iowa 2006) (“[T]he elements for the Title VII [sexually hostile work
environment] claim mirror the elements of the ICRA claim.”); McElroy v. State, 703
N.W.2d 385, 391 (Iowa 2005) (“Because the ICRA is in part modeled after Title VII,
we have traditionally looked to federal law for guidance in interpreting it.”).
However, federal law is not controlling, but merely provides an analytical framework
for analyzing ICRA claims.

See Soto, 285 F. Supp. 2d at 1178 (citing Hulme v.

Barrett, 449 N.W.2d 629, 631 (Iowa 1989)). With these principles in mind, unless a
distinction between Title VII and the ICRA becomes critical, my analysis of
Robertson’s Title VII claims based on sex applies equally to her ICRA claims.
As the Eighth Circuit Court of Appeals has explained,
[H]ostile work environments created by supervisors or
coworkers have the following elements in common: (1) the
plaintiff belongs to a protected group; (2) the plaintiff was
27

subject to unwelcome harassment; (3) a causal nexus exists
between the harassment and the plaintiff’s protected group
status; and (4) the harassment affected a term, condition, or
privilege of employment. Al–Zubaidy v. TEK Indus., Inc.,
406 F.3d 1030, 1038 (8th Cir. 2005).
EEOC v. CRST Van Expedited, Inc., 679 F.3d 657, 683 (8th Cir. 2012) (quoting
Gordon v. Shafer Contracting Co., 469 F.3d 1191, 1194–95 (8th Cir. 2006), and
distinguishing between additional elements for proof of harassment by supervisory
employees and proof of harassment by co-workers). It appears that the elements at
issue on the defendants’ motion to dismiss are the third and fourth ones, the “causal
connection” or “because of sex” element and the “harassment affecting employment”
element, respectively.
The Eighth Circuit Court of Appeals has explained the “causal nexus” or
“because of sex” element as follows:
In Oncale, the Supreme Court that . . . “Title VII does not
prohibit all verbal or physical harassment in the workplace;
it is directed only at ‘discrimination because of ... sex.’”
523 U.S. at 80, 118 S.Ct. 998 (emphasis in original). [T]he
Court noted that it “ha[d] never held that workplace
harassment ... is automatically discrimination because of sex
merely because the words used have sexual content or
connotations.” Id.
Smith v. Hy-Vee, Inc., 622 F.3d 904, 907 (8th Cir. 2010); Sheriff v. Midwest Health
Partners, P.C., 619 F.3d 923, 929 (8th Cir. 2010) (stating, “‘[T]he plaintiff . . . must
always prove that the conduct at issue was not merely tinged with offensive sexual
connotations, but actually constituted “discrimination because of sex.”’

Oncale v.

Sundowner Offshore Services, Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201
(1998) (quoting Title VII) (internal alterations omitted).

‘“The critical issue, Title

VII’s text indicates, is whether members of one sex are exposed to disadvantageous
terms or conditions of employment to which members of the other sex are not
28

exposed.”’ Id. at 80, 118 S.Ct. 998 (quoting Harris v. Forklift Systems, Inc., 510 U.S.
17, 25, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993) (Ginsberg, J., concurring)).”).
As to the element requiring proof that the “harassment affected a term,
condition, or privilege of employment,” the Eighth Circuit Court of Appeals has
explained that “[a] sexually hostile work environment is one in which the sexual
harassment would reasonably be perceived, and is perceived by the victim, as
‘“sufficiently severe or pervasive to alter the conditions of the victim’s employment and
create an abusive working environment.”’” Sheriff, 619 F.3d at 930 (emphasis added)
(quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993), in turn quoting
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)).

The court has

explained that, in this analysis,
Relevant factors to determine objectivity include the
frequency and severity of the discriminatory conduct;
whether it can be characterized as “physically threatening or
humiliating, or a mere offensive utterance”; whether it
presents an unreasonable interference with the employee’s
work performance, Harris, 510 U.S. at 23, 114 S.Ct. 367,
or “make[s] it more difficult to do the job,” id. at 25, 114
S.Ct. 367 (Ginsberg, J., concurring) (internal alteration
omitted).
The inquiry required to separate actionable harm
from “merely unpleasant conduct” is necessarily a fact
intensive one, Moring v. Ark. Dep’t of Correction, 243 F.3d
452, 456 (8th Cir. 2001), and encompasses all circumstances
supported by credible evidence, Harris, 510 U.S. at 23, 114
S.Ct. 367. The whole pattern of conduct must be examined,
for its severity and pervasiveness cannot be fully understood
by “carving it ‘into a series of discrete incidents.’”
Hathaway [v. Runyon], 132 F.3d [1214,] 1222 [(8th Cir.
1997)] (citation omitted); see also Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 115, 122 S.Ct. 2061, 153
L.Ed.2d 106 (2002). For these reasons it is up to the jury
“to decide whether particular conduct is ‘egregious enough’
29

to merit an award of damages.” Hathaway, 132 F.3d at
1221 (quoting Harris, 510 U.S. at 24, 114 S.Ct. 367
(Scalia, J., concurring)).
Sheriff, 619 F.3d at 930.
ii.

Same-sex harassment

When sexual behavior is directed at a woman by a man, it raises the inference
that the harassment is based on the woman’s sex. See Sheriff, 619 F.3d at 929. In
addition, in Oncale, the Supreme Court recognized that same gender sexual harassment
may also be actionable. Smith, 622 F.3d at 907 (citing Oncale, 523 U.S. at 80). More
specifically,
In analyzing the same-sex harassment claim, the Court [in
Oncale] noted that it “ha[d] never held that workplace
harassment ... is automatically discrimination because of sex
merely because the words used have sexual content or
connotations.” [Oncale, 523 U.S. at 80]. Rather, the Court
set out three evidentiary routes a plaintiff can use to show
the conduct in a same-sex harassment claim was based on
sex. Id. at 80–81, 118 S.Ct. 998. First, a plaintiff can show
that the conduct was motivated by the co-worker’s sexual
desire for persons of the same sex. Id. at 80, 118 S.Ct. 998.
Second, a plaintiff can show the harasser was motivated by a
general hostility to the presence of the same gender in the
workplace. Id. Third, a plaintiff may offer direct
comparative evidence about how a harasser treated both
males and females differently within a mixed-sex workplace.
Id. at 80–81, 118 S.Ct. 998.
Smith, 622 F.3d at 907-08; McCowan v. St. John’s Health Sys., 349 F.3d 540, 543 (8th
Cir. 2003) (describing the same “three evidentiary routes by which a same-sex plaintiff
can show that the conduct was based on sex”); see also Pedroza v. Cintas Corp. No. 2,
397 F.3d 1063, 1070 (8th Cir. 2005) (rejecting the argument that Title VII establishes
dual standards for the “based on sex” showing required in male and female same-sex
30

harassment cases and concluding that courts may look to cases that involve male samesex harassment to determine whether a female, same-sex harassment plaintiff has made
the showing required to create a jury question upon the “because of sex” requirement).
iii.

Robertson’s “same-sex harassment” allegations

Robertson contends, the defendants apparently ultimately concede, and I
specifically conclude that Robertson’s factual allegations in her Petition are more than
sufficient to give facial plausibility to her claim that Stephan was motivated by same-sex
desire. See Richter, 686 F.3d at 850 (stating the “plausibility” standard for stating a
claim upon which relief can be granted); Smith, 622 F.3d at 907 (recognizing that a
plaintiff can demonstrate that same-sex harassment is “because of sex” by showing that
the conduct was motivated by the co-worker’s sexual desire for persons of the same
sex).

The pertinent allegations of same-sex desire include the following:

(1) that

Stephan was “inappropriately infatuated with Robertson’s sexual orientation,” see
Petition at ¶ 13(a)(11); (2) that, based on the volume of inappropriate texts and e-mails,
Robertson’s partner believed that Stephan had a sexual attraction to Robertson, see
id. at ¶ 13(a)(13); (3) that Stephan sent Robertson texts and e-mails stating that Stephan
“was considering hooking up with a woman,” see id. at ¶ 13(a)(17); and (4) that
Stephan related to Robertson that Stephan’s husband believed that Stephan was
divorcing him because she was a lesbian and wanted to have sex with Robertson, see
id. at ¶ 13(a)(18).
The defendants contend that, nevertheless, Robertson has not alleged legally
sufficient harassment based on same-sex desire. They continue to parse Robertson’s
allegations in terms of whether the harassment was allegedly because of Robertson’s
sex or because of her sexual orientation. First, I think that allegations of a female
harasser’s sexual attraction to another woman she knows to be a lesbian do not turn the
harasser’s conduct into allegations of harassment based solely on sexual orientation.
31

Rather, I believe that, if anything, such allegations heighten the plausibility that the
harassment is based on same-sex desire, because the target may be believed to be more
receptive to same-sex advances. Richter, 686 F.3d at 850 (stating the “plausibility”
standard for stating a claim upon which relief can be granted). It is not necessary to
show that the alleged same-sex harasser is “strictly” homosexual, only that the alleged
same-sex harasser was motivated by some degree of homosexual desire towards the
plaintiff.

See Pedroza, 397 F.3d at 1069 n.2.

Similarly, the circumstance (or

happenstance) that the victim of alleged same-sex harassment was admittedly a
homosexual does not negate the inference that the victim was harassed because his or
her gender was the same as the harasser’s, where the harassment can be shown (or
plausibly alleged) to be based on some degree of same-sex desire.
Second, I read Oncale and Smith to stand for the proposition that, if a plaintiff
makes sufficient factual allegations of same-sex desire by the alleged harasser, the
plaintiff has plausibly alleged that all of the alleged harasser’s conduct in a same-sex
harassment claim was based on sex. Smith, 622 F.3d at 907 (citing Oncale, 523 U.S.
at 80–81). To put it another way—the way stated by Robertson—factual allegations that
plausibly show that Stephan was motivated by same-sex desire give context to earlier
and later harassment, thus plausibly suggesting that those incidents were harassment
“because of sex.”
Third, the defendants have focused only on the “severity” aspect of unlawful
sexual harassment, ignoring that “[a] sexually hostile work environment is one in which
the sexual harassment would reasonably be perceived, and is perceived by the victim,
as ‘“sufficiently severe or pervasive to alter the conditions of the victim’s employment
and create an abusive working environment.”’” Sheriff, 619 F.3d at 930 (emphasis
added) (quoting Harris, 510 U.S. at 21-22, in turn quoting Meritor Savings Bank, FSB,
477 U.S. at 67). Furthermore, “[t]he whole pattern of conduct must be examined, for
32

its severity and pervasiveness cannot be fully understood by ‘carving it “into a series of
discrete incidents.”’” Id. (quoting Hathaway, 132 F.3d at 1222 (citation omitted)).
Here, Robertson has not just made conclusory allegations that conduct towards
her was unwelcome, she has alleged frequent—indeed, nearly constant—comments,
questions, conversations, texts, and e-mails of inappropriate and offensive content
concerning her sexual orientation (which, as explained above, in the context of samesex harassment, concerns her gender). See id. (stating “relevant factors” to determine
whether harassment is actionable as including the frequency and severity of the
discriminatory conduct). She has also alleged that such conduct unreasonably interfered
with her ability to do her job, because it impacted her health and personal life, see,
e.g., Petition at ¶ 13(a)(12), made her working environment stressful and unpleasant to
the point that it interfered with her ability to address workplace issues that fell within
her responsibilities, see, e.g., id. at ¶ 13(a)(20) (alleging that Stephan’s conduct made
Robertson reluctant to bring to Stephan’s attention concerns about her attire at work
that fell within Robertson’s duties as the human resources director), and interfered with
her work relationships with others, see, e.g., id. at ¶ 13(a)(5), (17), not to mention the
instances in which Stephan allegedly retaliated against Robertson for her complaints
about Stephan’s conduct by excluding her from meetings relevant to her job duties, see,
e.g., id. at ¶ 13(a)(7), (9), (15), (18), (19). These factual allegations are sufficient to
allege a plausible claim that the work environment was sexually hostile.
Therefore, the part of the defendants’ motion to dismiss seeking dismissal of
Robertson’s claims based on sex for failure to state claims upon which relief can be
granted is denied.
4.

Pleading of retaliation

Finally, the defendants seek dismissal of Robertson’s claims alleging retaliation
for complaining about a sexually hostile work environment, but they do so solely on the
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ground that, because Robertson has failed to allege a sexually hostile work
environment, she has not made any plausible claim that the defendants retaliated against
her for reporting a hostile work environment based on gender. There are at least two
problems with this contention.
First, I concluded, above, that Robertson has adequately alleged a hostile work
environment based on sex, not just based on sexual orientation. Second, the Eighth
Circuit Court of Appeals “‘applies § 2000e–3(a) broadly to cover opposition to
“employment actions that are not unlawful, as long as the employee acted in a good
faith, objectively reasonable belief that the practices were unlawful.”’” Guimaraes v.
SuperValue, Inc., 674 F.3d 962, 977 (8th Cir. 2012) (quoting Pye v. New Aire, Inc.,
641 F.3d 1011, 1020 (8th Cir. 2011), in turn quoting Bonn v. City of Omaha, 623 F.3d
587, 591 (8th Cir. 2010)). Thus, Robertson’s claim of retaliation for complaining
about a sexually hostile work environment could survive independently of the merits or
the adequacy of the pleading of her claim of a sexually hostile work environment, if
Robertson pleaded a factual basis for her plausible, reasonable belief that the conduct
she complained about constituted a sexually hostile work environment, and that such
complaints resulted in retaliation, and I conclude that she has.
Therefore, the part of the defendants’ motion to dismiss seeking dismissal of
Robertson’s claims of retaliation for complaining about a sexually hostile work
environment is denied.
III.

CONCLUSION

I agree with the parties that Title VII provides no protection for sexual
orientation. Consequently, the defendants are entitled to dismissal of Title VII claims
in Count I alleging discrimination or harassment because of sexual orientation. On the
other hand, contrary to the defendants’ contentions, I conclude that Robertson did
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exhaust administrative remedies on her Title VII or state law claims based on sex; that
she has adequately pleaded claims based on sex, rather than just claims based on sexual
orientation; and that she has adequately pleaded a claim for retaliation for complaining
about a sexually hostile work environment.
THEREFORE, the defendants’ January 22, 2013, “Joint Partial Motion To
Dismiss Plaintiff’s Petition” (docket no. 4) is granted in part and denied in part, as
follows:
1.

The part of the defendants’ motion seeking dismissal of Robertson’s Title

VII claims in Count I alleging discrimination or harassment because of sexual
orientation is granted; but
2.

The remainder of the defendants’ motion to dismiss is denied.

IT IS SO ORDERED.
DATED this 10th day of April, 2013.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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