Opinion
No. C98-0024.
March 16, 1999.
ORDER
This matter comes before the court pursuant to defendants' December 11, 1998 motion for summary judgment (docket number 14). The plaintiff has resisted this motion (docket number 18) and the defendants' have filed a reply to plaintiff's resistance (docket number 23). The parties have consented to the exercise of jurisdiction by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, defendants' motion is granted in part and denied in part.
The plaintiff in this case, Brenda Doyle (Doyle) was previously employed by the Tama County Sheriff's Department. During her employment Doyle claims she was sexually harassed by her direct supervisor, defendant Scott Bruns (Bruns). Doyle claims that this harassment and her employer's response to her complaints:
* Deprived her of her right to equal protection under the Fourteenth Amendment, in violation of 42 U.S.C. § 1983.
* Constituted quid pro quo sexual harassment, also in violation of 42 U.S.C. § 2000(e).
* Constituted quid pro quo sexual harassment in violation of Iowa Code § 216.6.
* Amounted to hostile environment sexual harassment in violation of 42 U.S.C. § 2000(e).
* Amounted to hostile environment sexual harassment in violation of Iowa Code § 216.6.
* Constituted retaliation in violation of 42 U.S.C. § 2000(e).
* Constituted retaliation in violation of Iowa Code § 216.11.
* Constituted assault and battery.
* Constituted negligence.
Doyle brings this suit against Tama County (County), against Tama County Sheriff Michael Richardson (Richardson), both individually and in his individual capacity, and against Scott Bruns both individually and in his official capacity (collectively referred to as the defendants). The defendants claim they are entitled to summary judgment on all counts.
Summary Judgment
A motion for summary judgment may be granted only if, after examining all of the evidence in the light most favorable to the nonmoving party, the court finds that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Kegel v. Runnels, 793 F.2d 924, 926 (8th Cir. 1986). Once the movant has properly supported its motion, the nonmovant "may not rest upon the mere allegations or denials of [its] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "To preclude the entry of summary judgment, the nonmovant must show that, on an element essential to [its] case and on which [it] will bear the burden of proof at trial, there are genuine issues of material fact." Noll v. Petrovsky, 828 F.2d 461, 462 (8th Cir. 1987), cert. denied, 484 U.S. 1014 (1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). Although "direct proof is not required to create a jury question, . . . to avoid summary judgment, `the facts and circumstances relied upon must attain the dignity of substantial evidence and must not be such as merely to create a suspicion.'" Metge v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985), cert. denied, 474 U.S. 1057 (1986) (quoting Impro Prod., Inc. v. Herrick, 715 F.2d 1267, 1272 (8th Cir. 1983), cert. denied, 465 U.S. 1026 (1984)).
In the context of employment discrimination cases, summary judgment should be used sparingly. Hardin v. Hussman, 45 F.3d 262, 264 (8th Cir. 1995) (citations omitted). "`Because discrimination cases often depend on inferences rather than on direct evidence, summary judgment should not be granted unless the evidence could not support any reasonable inference for the nonmovant.'" Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir. 1995) (quoting Crawford v. Runyon, 37 F.3d 1338, 1340 (8th Cir. 1994)). In applying these standards, the court must give the nonmoving party the benefit of all reasonable inferences to be drawn from the evidence. Krause v. Perryman, 827 F.2d 346, 350 (8th Cir. 1987).
Statement of Material Facts Not in Dispute
Doyle was employed by the Tama County Sheriff's Office as a communications operator/jailor at all times relevant to this suit. The Tama County Sheriff's Office has in place a policy prohibiting sexual harassment. In or around September or October of 1996, Doyle complained to Richardson about excessive "horseplay" in the office initiated by Doyle's direct supervisor, defendant Bruns. Doyle lodged another complaint a few days later. Richardson spoke to Bruns regarding the complaints, and instructed him to cease the behavior complained of by Doyle. In December of 1996 Doyle requested some prorated vacation time. Richardson initially denied Doyle's request, but ultimately reconsidered and Doyle was paid for the leave. In January of 1997 Doyle was spoken to concerning the volume of her personal phone calls. Also in January of 1997 Doyle filed a written grievance claiming sexual harassment and outlined incidents occurring in October of 1996 where she claimed Bruns touched her buttocks and kissed her forehead. An independent investigator was hired by the county Board of Supervisors, and an investigation was undertaken. Doyle filed a complaint with the Iowa Civil Rights Commission. Several months after filing this complaint, Doyle opted to change her working hours to a different shift. Doyle later left her employment with the Tama County Sheriff's Office and obtained employment elsewhere.
CONCLUSIONS OF LAW 42 U.S.C. § 1983 — Equal Protection
Title 42 U.S.C. § 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured at law, suit in equity, or other proper proceeding for redress.42 U.S.C. § 1983. Doyle claims that the defendants, acting under color of state law, deprived her of her right to equal protection, and in doing so violated 42 U.S.C. § 1983 by establishing an official policy, practice, procedure, or custom of reckless indifference to female persons in her position. Doyle claims that defendants discriminated against female employees by establishing, maintaining, and enforcing policies which treat female employees differently than males. In the alternative, Doyle claims that if this disparate treatment was not defendants' official policy, then it was an intentional and purposeful practice, procedure or custom of which defendants had actual or constructive knowledge.
For the first time in her resistance to defendant's motion for summary judgment, plaintiff also claims that the actions of the defendants violated her due process rights. However, this claim was not raised in plaintiff's complaint and will not be considered here.
Defendants claim they are entitled to summary judgment on this claim because there is no genuine issue of material fact as to whether defendants established, maintained, and enforced a policy treating women employees different than males. To the contrary, defendants point to the official policy of the Tama County Sheriff's Office expressly forbidding the violation of any employee's constitutional rights, by sexual harassment or any other means. Additionally, defendants argue that there were no practices or customs of the Tama County Sheriff's Office to treat female employees differently than males. Alternatively, defendants argue that, even assuming Doyle's allegations to be true, the specific acts complained of do not rise to the level of a constitutional violation. Finally, the defendants argue that Tama County and Richardson are entitled to summary judgment on Doyle's § 1983 claim due to qualified immunity, and due to the fact that Doyle has failed to demonstrate a genuine issue of material fact regarding her claim that these defendants acted with malice and reckless indifference to her federally protected rights.
A municipality cannot be held liable under 42 U.S.C. § 1983 solely for employing a tortfeasor. Board of County Comm'rs of Bryan County, Oklahoma v. Brown, 117 S. Ct. 1382, 1385 (1997). The first step in analyzing a claim brought pursuant to 42 U.S.C. § 1983 is "to isolate the precise constitutional violation" which is alleged. Id. (quoting Baker v. McCollan, 443 U.S. 137, 140, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979)). Doyle claims that the actions of the defendants deprived of her right to equal protection, based upon her gender, under the Fourteenth Amendment.
In order to subject the county to liability under 42 U.S.C. § 1983, Doyle must show that the county had a "policy or custom of failing to act upon prior similar complaints of unconstitutional conduct, which caused the constitutional injury at issue." Rogers v. City of Little Rock, Ark., 152 F.3d 790, 798 (8th Cir. 1998) (quoting Andrews v. Fowler, 98 F.3d 1069, 1075 (8th Cir. 1996)) (quoting Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978)). Doyle must prove that the alleged policy "was the moving force behind the constitutional violation." Rogers, 152 F.3d at 799 (quoting Jane Doe A. v. Special Sch. Dist., 901 F.2d 642, 646 (8th Cir. 1990)). "That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." Bd. of County Comm'rs of Bryan County, Oklahoma, 117 S. Ct. at 1385.
Absent a formal policy or custom, the county may also be liable under 42 U.S.C. § 1983 if there existed "a prior pattern of unconstitutional conduct that [was] so `persistent and widespread' as to have the effect and force of law," and it was this pattern that caused the alleged injury. Rogers, 152 F.3d at 799 (quoting Andrews, 98 F.3d at 1075) (quoting Monell, 436 U.S. at 691, 98 S. Ct. 2018). To prevail under this theory, Doyle must show "that [county] officials had knowledge of prior incidents of police misconduct and deliberately failed to take remedial action." Rogers, 152 F.3d at 799 (quoting Parrish v. Luckie, 963 F.2d 201, 204 (8th Cir. 1992)).
Liability for county officials in their official capacities is another form of action against the county. Rogers, 152 F.3d at 800. Therefore, it requires the same showing that a policy or custom, either official or unofficial, caused the alleged violation. Id. A supervisory employee faces liability under 42 U.S.C. § 1983 in his individual capacity if he has notice of a "pattern of unconstitutional conduct by subordinates" and "fails to act adequately on complaints of sexual abuse," thereby exhibiting "deliberate indifference to or tacit authorization of the conduct." Id.
Defendants are entitled to summary judgment on Doyle's 42 U.S.C. § 1983 claim. Even viewing the facts in a light most favorable to Doyle, she has made no showing that Bruns, when allegedly touching Doyle in an improper manner was acting pursuant to any express county policy of treating men differently than women. To the contrary, the county had in effect a written policy prohibiting such conduct. Likewise, Doyle has presented no evidence concerning a policy under which Richardson failed to act upon her complaint or prior similar complaints of unconstitutional conduct due to the gender of the complainant. Absent such a policy, Doyle cannot make the requisite showing that the alleged policy was the "moving force behind the constitutional violation." See Rogers, 152 F.3d at 799.
Defendants are also entitled to summary judgment under the unofficial policy approach. Viewing the facts in a light most favorable to Doyle, she has presented no evidence of "a prior pattern of unconstitutional conduct that [was] so `persistent and widespread' as to have the effect and force of law," and it was this pattern that caused the alleged injury. See Rogers, 152 F.3d at 799. Furthermore, to survive summary judgment under this theory, Doyle must demonstrate a genuine issue of material fact whether "[county] officials had knowledge of prior incidents of police misconduct and deliberately failed to take remedial action." See Rogers, 152 F.3d at 799.
Although some of defendant Bruns' conduct seemed to begin shortly after he began working for the Tama County Sheriff's Office in 1994, Doyle never complained to Sheriff Richardson until Fall of 1996. Therefore, it cannot be said that Richardson had knowledge of these prior incidents of misconduct and deliberately failed to take remedial action based upon gender. To the contrary, Richardson spoke to Bruns within days of Doyle's complaint and the overwhelming majority of the improper conduct stopped. Only the poking under the arm and using the terms "dear" and "hon" is alleged to have continued. In her deposition, Doyle testified that she did not remember Bruns ever lowering her chair, head-butting her, putting his finger in her ear, or playing with her hair after her initial complaint. Although Bruns did continue to address people in the office as "dear" or "hon," Richardson instructed Bruns to cease doing so in February of 1997 and Bruns complied. Also, the more egregious acts complained of, the pinch on the buttocks and the kiss on the forehead, allegedly occurred once, before Doyle's initial complaint, and never again afterwards.
Doyle testified in her deposition that she remembered a specific incident where Bruns poked her under the arm on February 14, 1997. However, Doyle also testified that she did not complain to Sheriff Richardson about this incident. She said that the incident was noted in a log book she was keeping and reported it to her union representative only.
Doyle first complained to Sheriff Richardson in September or October of 1996 and then again a few days later.
For the same reasons, Richardson is entitled to summary judgment on Doyle's § 1983 claim against him in his individual capacity. Even Doyle's account of the events at issue fail to generate a genuine issue of material fact whether Richardson had notice of a "pattern of unconstitutional conduct by subordinates" and "fail[ed] to act adequately on complaints of sexual abuse," thereby exhibiting "deliberate indifference to or tacit authorization of the conduct." See Rogers, 152 F.3d at 800.
Defendant Bruns is entitled to summary judgment on Doyle's § 1983 claim against him in his individual capacity because, even though his conduct toward Doyle may have been improper, it does not rise to the level of a constitutional violation. "Section 1983 is intended to remedy egregious conduct, and not every assault or battery which violates state law will create liability under it." Haberthur v. City of Raymore, Missouri, 119 F.3d 720, 723 (8th Cir. 1997) (conduct found to be sufficiently egregious for § 1983 purposes where police officer followed plaintiff home in his police car and parked in her driveway, showed up unexpectedly at plaintiff's work and told her that he would wait for her down the road, showed up at plaintiff's work and placed his hand under her shirt to fondle her breast, moved his hands up and down her sides and made sexually suggestive remarks, repeatedly drove by plaintiff's home both in his police car and in his private vehicle, and threatened to give her a ticket on two occasions). See also Burton v. Livingston, 791 F.2d 97, 99 (8th Cir. 1986) ("While a plaintiff may seek redress and win damages under state law for any unwanted touching under the common law of battery, the federal remedies under § 1983 are directed against more egregious conduct."); Reeve v. Oliver, 41 F.3d 381, 383 (8th Cir. 1994) (animal control officer's rubbing of plaintiff's back and staring at her chest fails to rise to the level of a constitutional violation). "Many harms, though caused by a state actor, do not fall within the scope of section 1983, for section 1983 does not turn the Fourteenth Amendment into a font of tort law that supersedes the tort systems already available under individual state laws." Id. (quoting Gregory v. City of Rogers, 974 F.2d 1006, 1009 (8th Cir. 1992), cert denied, 507 U.S. 913, 113 S. Ct. 1265, 122 L. Ed. 2d 661 (1993)).
Viewing all facts in a light most favorable to Doyle, the conduct complained of consisted of one pinch on her buttocks, one kiss on her forehead, rib-poking, the use of endearing terms, and the like. Furthermore, the vast majority of this conduct stopped immediately after Doyle voiced her complaints to Sheriff Richardson. While the court does not condone such juvenile behavior; the question here is whether it rises to the level of a constitutional violation. Under the circumstances set forth above, it does not. Doyle must look to state law for a remedy.
Quid Pro Quo Sexual Harassment
Doyle claims that defendants' actions amounted to quid pro quo sexual harassment in violation of 42 U.S.C. § 2000(e) and Iowa Code § 216.6. Doyle argues Bruns harassed her based upon her sex, and that her acceptance of Bruns' advances was an express or implied condition of receiving job benefits. Doyle claims that her rejection of Bruns' advances caused her tangible job detriments. Doyle further contends that defendants knew or should have known of the harassment and failed to take prompt, remedial action. Defendants claim they are entitled to summary judgment on this claim.
Under Title VII of the Civil Rights Act of 1964, "[i]t shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of his employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Likewise, Iowa Code § 216.6 prohibits a person from discriminating in employment against an employee because of the employee's sex.
To establish a prima facie case of quid pro quo harassment, a plaintiff must show that:
* She was a member of a protected class;
* She was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors;
* The harassment was based on sex; and
* Her submission to the unwelcome advances was an express or implied condition for receiving job benefits or her refusal to submit resulted in a tangible job detriment.Cram v. Lamson Sessions Co., 49 F.3d 466, 473 (8th Cir. 1995)(quoting Kauffman v. Allied Signal, Inc., 970 F.2d at 186). "A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 2268 (1998). When a supervisor's harassment culminates in a tangible employment action, no affirmative defense is available to the employer. Id. at 2270.
There is no question that Doyle has proven the first element. Membership in a protected group is satisfied by showing that the plaintiff employee is a man or a woman. Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376 (8th Cir. 1996). "Congress did not limit Title VII protection to only women or members of a minority group." Id. "The term `sex' as used in Title VII has accordingly been interpreted to mean either `man' or `woman,' and to bar workplace sexual harassment against women because they are women and against men because they are men." Id.
The second and third elements are more problematic. However, Doyle's inability to generate a genuine issue of material fact with regard to the fourth element obviates the need to analyze the others. Assuming, without deciding, that Doyle was, in fact, subjected to unwelcome sexual harassment in the form of sexual advances from Bruns and that the harassment was based on sex, Doyle has presented no evidence whatsoever that Doyle's acceptance of Bruns' advances was an express or implied condition of receiving job benefits. To the contrary, Doyle testified in her deposition that Bruns never made any inappropriate sexual remarks to her and that there was nothing sexual about her and Bruns' relationship. Likewise, Doyle has not shown that "[h]er submission to the unwelcome advances was an express or implied condition for receiving job benefits or her refusal to submit resulted in a tangible job detriment." Cram, 49 F.3d at 473.
Doyle claims that she suffered tangible job detriments in that she felt forced to switch her schedule from days to nights to avoid Bruns. Doyle also claims that Sheriff Richardson changed the break system so that she could no longer take her breaks at the same time as her friend. Doyle's own decision to begin working nights, even if made to avoid having to work with Bruns, cannot be characterized as a tangible job detriment resulting from her failure to submit to Bruns' advances. This is especially true in light of the fact that Doyle testified in her deposition that she voluntarily switched to nights, at least in part, because her co-workers on days were not speaking to her. Similarly, Sheriff Richardson decided to change the break schedule, not Bruns. Furthermore, this change originated from Doyle's own complaint about not being relieved for her break in a timely manner, not from her refusal to submit to any of Bruns' advances. Finally, neither of these actions is sufficiently extreme so as to constitute a tangible employment action. See Burlington Indus., 118 S. Ct. at 2268 ("A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits."); See also Robinson v. City of Pittsburgh, 120 F.3d 1286, 1298 (3d Cir. 1997) (supervisor unjustifiably reprimanding plaintiff employee in a very harsh manner in front of co-workers, supervisor continuously bothering plaintiff employee at work, phoning her at home and work for non-business reasons, and supervisor making negative comments to plaintiff employee regarding her work and marriage found insufficient to affect plaintiff employee's compensation, terms, conditions, or privileges of employment).
The animosity between Doyle and her co-workers seems to have arisen out of several situations, not only because Doyle filed her sexual harassment complaint.
For the reasons set forth above, defendants are entitled to summary judgment on Doyle's quid pro quo sexual harassment claim.
Hostile Environment Sexual Harassment
To establish a prima facie case of sexual harassment based on a hostile environment, a plaintiff must show that:
* She belongs to a protected group;
* She was subjected to unwelcome sexual harassment;
* The harassment was based on sex;
* The harassment affected a term, condition, or privilege of employment; and
* [her employer] knew or should have known of the harassment and failed to take proper remedial action.Kopp v. Samaritan Health Sys., Inc., 13 F.3d 264, 269 (8th Cir. 1993) (quoting Burns v. McGregor Electronics Indus., Inc., 955 F.2d 559, 564 (8th Cir. 1992)). The same elements constitute a prima facie case under Iowa law. Lynch v. City of Des Moines, 454 N.W.2d 827, 833 (Iowa 1990). "When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 267, 270, 126 L. Ed. 2d 295 (1993). The fifth element of Doyle's prima facie case of hostile environment requires a showing that defendants knew or should have known of the harassment and failed to take proper remedial action. Kopp, 13 F.3d at 269.
In light of two recent United States Supreme Court cases, the standard for employer liability for the sexual harassment of an employee by a supervisor is now more stringent.
An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.Faragher v. City of Boca Raton, __ U.S. __, 118 S. Ct. 2275, 2292-2293 (1998); Burlington Indus., Inc., 118 S. Ct. at 2270.
In evaluating the third element, that the harassment was based on sex, the "critical issue . . . is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Oncale v. Sundower Offshore Servs., Inc., 523 U.S. 75, 118 S. Ct. 998, 1002 (1998) (quoting Harris, 510 U.S. at 25, 114 S. Ct. at 372 (Ginsburg, J., concurring)). "[O]nly those incidents of unequal treatment of the plaintiff that would not occur but for the sex of the plaintiff, if sufficiently patterned or pervasive, will be considered as an illegal condition of employment under Title VII." Fred v. Wackenhut Corp., 860 F. Supp. 1401, 1405 (D. Neb. 1994) aff'd, 53 F.3d 335 (8th Cir. 1995), cert denied, 516 U.S. 870 (1995).
To support her hostile environment claim, Doyle points to the incidents where Bruns allegedly kissed her forehead and pinched her buttocks. Doyle also claims that she was subjected to a hostile environment in violation of Title VII because, after she filed her complaint her co-workers were no longer very nice to her, that defendants Bruns and Richardson only spoke to her when necessitated by business, and that her co-workers and defendants did not socialize with her while on break.
Bruns began working for the Tama County Sheriff's office in 1994. Doyle testified in her deposition that Bruns' offensive behavior began approximately six months after he was hired. However, she did not complain about Bruns' conduct to Sheriff Richardson, despite the existence of a sexual harassment policy instructing the aggrieved person to report any sexually harassing conduct immediately, until the fall of 1996. Once Doyle did complain, Sheriff Richardson spoke to Bruns within days and the overwhelming majority of the offensive behavior stopped. Furthermore, the Tama County Board of Supervisors brought in an independent investigator and a complete investigation of Bruns' conduct was undertaken. Therefore, the court finds both elements of the affirmative defense have been satisfied, as a matter of law. Defendants' motion for summary judgment on Doyle's hostile environment sexual harassment claim is granted.
Retaliation
The provision of Title VII that prohibits retaliation provides as follows:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.42 U.S.C. § 2000e-3(a). The Iowa Code section prohibiting retaliation provides, in relevant part:
It shall be unfair or discriminatory practice for
2. Any person to discriminate or retaliate against another person in any of the rights protected against discrimination by this chapter because such person has lawfully opposed any practice forbidden under this chapter, . . . or has filed a complaint, testified, or assisted in any proceeding under this chapter.
To establish a prima facie case of retaliation, a plaintiff must show that she engaged in a statutorily protected activity, that the defendant took adverse action against her, and a causal connection between the two. Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997). Once this showing is made, the burden shifts to the employer to "articulate a legitimate, nondiscriminatory reason for its actions." Manning, 127 F.3d at 692. If this burden is met, the presumption of retaliation disappears. Id. Then the plaintiff must show that the defendant's proffered reason was a pretext for illegal retaliation. Montandon, 116 F.3d at 359.
The requirement of a materially adverse employment action, while not contained in the retaliation provision of 42 U.S.C. § 2000e-3(a), is inferred from the basic prohibition of employment discrimination set forth in 42 U.S.C. § 2000e-2(a)(1)-(2). Manning v. Metropolitan Life Ins. Co., Inc., 127 F.3d 686, 692 (8th Cir. 1997). See also Robinson, 120 F.3d at 1300 ("Retaliatory conduct other than discharge or refusal to rehire is thus proscribed by Title VII only if it alters the employee's `compensation, terms, conditions, or privileges of employment,' deprives him or her of 'employment opportunities,' or `adversely affects his [or her] status as an employee.") (quoting Smart v. Ball State University, 89 F.3d 437, 441 (7th Cir. 1996)).
Doyle claims that the following actions by defendants, taken after she complained to Sheriff Richardson of Bruns' conduct, constituted illegal retaliation. First, defendants denied her request in December 1996 for pro-rated vacation. Second, the break system was changed so that she could no longer take her breaks with her friend. Third, Doyle claims that the unfriendly treatment she was subjected to by her co-workers and the defendants amounted to retaliation. Finally, defendants investigated the volume of personal calls being made and received by Doyle, and called a meeting to discuss the results. The court shall deal with each of these allegations in turn.
In early December of 1996, Doyle submitted a written request that she be allowed to take some pro-rated vacation. Her request was denied. Sheriff Richardson claims he denied Doyle's request based on administrative efficiency and a reluctance to implement pro-rated vacation as a practice in his office. Doyle filed a written grievance on this issue and she ultimately was paid for the vacation time she took in December of 1996. Richardson has articulated a legitimate, discriminatory reason for his denying Doyle's request for pro-rated vacation. Doyle has made no showing that the reason given by Richardson was pretext for illegal retaliation. Furthermore, Doyle suffered no materially adverse employment action as she was ultimately paid for her time off.
As previously discussed, the break system was changed so that Doyle and her friend could no longer go on break together. However, Sheriff Richardson testified that Doyle herself was the catalyst of this change. Doyle complained to Richardson that another employee was not relieving for her breaks in a timely manner. To remedy the situation, Richardson changed the system so that Doyle's friend would relieve her for breaks. Therefore, the two could not take breaks together. Again, Richardson has articulated a legitimate, nondiscriminatory reason for the supposedly adverse action taken against her. As Doyle has failed to show that the reason given by Richardson was pretextual, the change in the break system cannot, as a matter of law, be considered retaliation.
Although this may have made Doyle's employment less pleasant, the court has serious doubts that not being allowed to take your breaks with the people of your choice cannot, as a matter of law, be considered a materially adverse employment action. See Mantandon, 116 F.3d at 359 (requirement that employee move not considered an adverse employment action because it did not entail a change in position, title, salary, or any other aspect of his employment).
As previously described, Doyle contends that she was treated poorly by her co-workers and by the defendants. In support of this contention, Doyle claims that defendants Bruns and Richardson spoke to her only when necessary for business reasons, and that both defendants and her co-workers would leave the break area upon her arrival. Doyle also points out that she was replaced as union steward after she complained about Bruns' conduct and was removed from the insurance committee, and that she believed that Bruns had something to do with these actions by her co-workers. First, aside from "feelings," Doyle has provided no evidence at all to support her allegation that Bruns had anything to do with her co-workers decision to replace her as a union steward and on the insurance committee. Furthermore, a general lack of friendliness or camaraderie in the workplace by coworkers cannot, as a matter of law, constitute a material adverse employment action. Finally, Doyle claims that defendants retaliated against her by investigating the volume of personal phone calls made and received by her. Doyle contends that all employees made and received personal phone calls and that she was targeted for investigation after she complained about Bruns' conduct. However, Sheriff Richardson has articulated a legitimate, nondiscriminatory reason for the investigation. First, Richardson stated that only Doyle was investigated because he specifically received complaints regarding her personal phone usage. Second, Richardson indicated that Doyle's phone calls were investigated because he had received complaints from other employees that Doyle had contacted an insurance representative and had inappropriately interfered with their insurance coverage. Therefore, Sheriff Richardson had Bruns pull two days worth of phone tapes to investigate both the volume of Doyle's calls and whether Doyle had inappropriately interfered in her co-workers insurance issues. Doyle has made no showing that these reasons are pretextual. Furthermore, Doyle suffered no adverse employment action as a result of this investigation. Granted, she was summoned to a meeting and the matter was discussed, but this is insufficient to constitute a materially adverse employment action.
The Tama County Sheriff's Office records nearly every conversation made (one phone line is exempt) and maintains tapes of all conversations for approximately 30 days.
Some of Doyle's co-workers were planning on undertaking a physician prescribed weight loss plan. As a member of the insurance committee, Doyle seems to have taken it upon herself to look into the matter and inform the insurance company that such weight loss plans were not covered. Some of Doyle's co-workers were upset by her actions.
Defendants testified that the tapes revealed that Doyle made or received 20 to 25 personal phone calls during the two days of tapes that were listened to.
See Robinson, 120 F.3d at 1301 (holding that plaintiff's allegations that she was subjected to unsubstantiated oral reprimands and unnecessary derogatory comments following her complaint do not rise to the level of "adverse employment action" required for a retaliation claim). See also McDonnell v. Cisneros, 84 F.3d 256, 258 (7th Cir. 1996) (implying in dicta that "anger, irritation, dirty looks, even the silent treatment can cause distress" but do not constitute materially adverse employment action).
For the reasons set forth above, defendants are entitled to summary judgment on Doyle's retaliation claim.
Assault Battery
Defendant Bruns claims that he is entitled to summary judgment on Doyle's assault and battery claim because she has provided no evidence that Bruns' actions toward her were accompanied with the requisite intent. Doyle claims that summary judgment is inappropriate because her deposition testimony has raised a genuine issue of material fact on this issue.
An assault is committed when a person does:
* an act intended to put another in fear of physical pain or injury; [or]
* an act intended to put another in fear of physical contact which a reasonable person would deem insulting or offensive; and the victim reasonably believes that the act may be carried out immediately.Greenland v. Fairtron Corp., 500 N.W.2d 36, 39 n. 4 (Iowa 1993); Iowa Civil Jury Instruction 1900.2.
A battery is committed when a person intentionally does:
* An act resulting in bodily contact causing physical pain or injury [; or]
* An act resulting in bodily contact a reasonable person would deem insulting or offensive.Greenland, 500 N.W.2d at 39 n. 5; Iowa Civil Jury Instruction 1900.4.
Viewing the facts in a light most favorable to Doyle, at least some of Bruns' actions resulted in bodily contact. Moreover, Doyle testified in her deposition that she considered this contact to be offensive. Doyle also testified that Bruns' actions caused her to be in fear and apprehension of immediate physical contact. As for Bruns' intent, ". . . if a person does an act on purpose, the person also intended the natural results of the act." Iowa Civil Jury Instruction 1900.5. Bruns does not claim that whatever actions he may have taken toward Doyle were not on purpose. Therefore, there remains a genuine issue of material fact on this issue, precluding summary judgment.
Negligence
Defendants contend that summary judgment is appropriate on Doyle's negligence claim because she has failed to establish any duty owed to her by the defendants, and therefore cannot establish a breach. Furthermore, defendants argue that Doyle cannot prove the damages she has sustained because she was not sexually harassed. Doyle claims that summary judgment is not warranted on her negligence claim because the Iowa Supreme Court has recognized a negligent hiring cause of action, and the question of breach is for the jury. Defendants respond that Doyle has made no showing that it breached any duty owed to her when it hired Bruns. The court agrees with the defendants. In order to prevail on a negligent hiring claim, a plaintiff must prove:
* that the employer knew, or in the exercise of ordinary care should have known, of its employee's unfitness at the time of hiring;
* that through the negligent hiring of the employee, the employee's incompetence, unfitness, or dangerous characteristics proximately caused the resulting injuries; and
* that there is some employment or agency relationship between the tortfeasor and the defendant employer.Godar v. Edwards, 588 N.W.2d 701, 708-9 (Iowa 1999). See also D.R.R. v. English Enter., CATV, Div. Of Gator Transp., Inc., 356 N.W.2d 580 (Iowa 1984) (recognizing a negligent hiring cause of action when the employer owed a special duty to the plaintiff). A claim for negligent hiring includes an action for negligent retention and negligent supervision. Godar, 588 N.W.2d at 709.
Doyle has made no showing that the defendant knew, or in the exercise of ordinary care should have known, of Bruns' alleged unfitness at the time he was hired. Even if defendant's investigation into Bruns' background was not all that it could have been, Doyle has demonstrated nothing in Bruns' personal or work history that would have put defendants on notice as to Bruns' unfitness. As Doyle is unable to establish, or at least generate an issue of material fact concerning the first element of her negligent hiring claim, summary judgment is appropriate.
This court is not deciding that defendants' background check of Bruns was inadequate.
Upon the foregoing,
IT IS ORDERED
Defendant's motion for summary judgment is granted except with respect to plaintiff's assault and battery claim.