United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3427
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Lucy M. Cross, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Prairie Meadows Racetrack *
and Casino, Inc., *
*
Appellee. *
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Submitted: April 12, 2010
Filed: August 12, 2010
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Before WOLLMAN, HANSEN, and MURPHY, Circuit Judges.
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WOLLMAN, Circuit Judge.
Lucy Cross appeals the district court’s1 grant of summary judgment to Prairie
Meadows Racetrack and Casino, Inc. (Prairie Meadows) on her hostile work
environment claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq., and the Iowa Civil Rights Act of 1965 (ICRA), Iowa Code § 216.1
et seq. We affirm.
1
The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
I.
From August 2005 until September 2007, Cross worked at Prairie Meadows as
a valet, parking cars on the night shift. Cross and the other valets on her shift were
typically supervised by traffic supervisor Tony Fucaloro, who reported to the traffic
manager, Bill Riddle. Although Fucaloro and Riddle were considered members of
Prairie Meadows management, neither individual had the ability to hire, fire, promote,
or reassign any of the valets. The Human Resources office had sole authority to
terminate an employee.
When Cross began working at Prairie Meadows she was given a copy of the
company’s policy regarding harassment and violence in the workplace. The policy
explained that Prairie Meadows had zero tolerance for sexual harassment and listed
various ways that employees could seek help if they experienced harassing or violent
behavior, including talking to a supervisor or directly contacting the Human
Resources department. The policy stated that any member of management who
received a complaint of sexual harassment was required to forward the complaint to
Human Resources. If an employee was unhappy with the resolution of her complaint,
the policy stated that she could address her concerns to upper level management and
the company CEO. Cross read the policy and testified that she was aware that there
were multiple effective avenues for reporting harassment.
In the summer of 2006, about one year after Cross began working at Prairie
Meadows, Cross reported that she had had a problem with another valet named
Semsudin Rizvic. According to Cross, Rizvic frequently pestered both his male and
female coworkers, tripping them or taking their keys. Cross reported to Fucaloro that
Rizvic had grabbed her pony tail and pulled her out of the valet shack, an area where
the valets stored keys for the customers’ vehicles. Fucaloro spoke about the incident
with Rizvic and Sherry Chambers, a Prairie Meadows employee who had been nearby
when it happened. Both Rizvic and Chambers confirmed that Rizvic had tugged
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Cross’s hair but characterized it as an instance of playful teasing, less severe than
Cross had made it out to be. Fucaloro called the valets together and admonished all
of them to avoid horseplay, but he did not report the incident to Human Resources or
inform anyone else of Cross’s complaint. According to Cross, Rizvic did not pull her
hair again after this incident.
On another occasion, Rizvic brushed the back of his hand across Cross’s breast
in a purported attempt to wipe something off her shirt. Cross told Rizvic that his
behavior was inappropriate and Rizvic laughed in response. When Cross informed
Fucaloro about Rizvic touching her breast, Fucaloro discussed the matter with Rizvic
but accepted Rizvic’s justification that the contact was acceptable because Rizvic had
touched Cross only with the back of his hand and only in an effort to brush something
from her shirt. Neither Cross nor Fucaloro discussed the incident with Human
Resources or any other member of management.
Cross also informed Fucaloro of an incident in which Rizvic had pulled a car
in front of her as she was walking through the valet parking lot and asked her whether
she liked him. Cross responded that she liked Rizvic only as a friend, causing Rizvic
to angrily respond that he wanted to be more than friends. Rizvic banged his hands
on the steering wheel and maneuvered the car to block Cross’s path. Cross felt
threatened and was frightened by the encounter. When Fucaloro heard about Rizvic’s
behavior he told Cross, “that’s just Sam.” Fucaloro did not investigate or report the
matter, and Rizvic was not disciplined for his conduct.
On September 18, 2007, Denis Felic, another valet, told Cross that Rizvic had
said that Cross had performed oral sex on Rizvic and that it had been “great.” Cross
confronted Rizvic, who denied ever making the statement. Cross and Rizvic had an
angry exchange of words, after which Cross sought out a supervisor to whom she
could report the incident. Mike Russo, another traffic supervisor working that night
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on Cross’s shift, told Cross to write a report. Cross complied, summarizing her
complaint as follows:
I have been having problems w/Sam. today I get to work & every time
he seen me he had made childish sounds, imatating me being a crybaby,
then denis came up to me and told me that Sam was talking about me
giving him a blow job and wanting to give him one! he gave me a ride
on the golf cart2 and tryed to make me fall out & about did i told him to
knock it off, so then im down at the shack and he keeps making moves
like hes going to hit me. So then I had had enough so i told him to grow
up, he started screeming at me telling me to shut the F up, kiss his ass,
and it only goes on & on Sherry [Chambers] seen the whole thing.
Russo reported the incident to Riddle, who forwarded Cross’s complaint to
Human Resources, which conducted an investigation. Rizvic was interviewed and
denied having spread a rumor about Cross performing oral sex. Chambers, who had
observed part of the encounter, told Human Resources that she did not believe Rizvic
had actually made the comment about Cross, and she stated that Cross regularly
picked on Rizvic by tripping or slapping him. Notwithstanding the conflicting
versions of the dispute, Prairie Meadows suspended Rizvic and terminated his
employment shortly thereafter because it determined that he had violated the
workplace violence policy by threatening Felic for accusing him of starting the rumor.
Cross left Prairie Meadows on September 19, 2007, and never returned.3 In the
course of pursuing this lawsuit, Cross described a number of incidents of sexual
harassment that she had not reported while working at Prairie Meadows.
2
The record reflects that the valets frequently used a golf cart to go to and from
parked vehicles.
3
Although Cross originally maintained that she was terminated for reporting the
harassment, the district court concluded that her termination theory was not
reasonably supported by the evidence, a ruling that Cross has not appealed.
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Cross also stated that her supervisors contributed to the poor working
environment. Riddle made a number of offensive comments about women, telling
Cross that women were “worthless,” that they should not have the right to vote, and
that they should “bow down” to men. Riddle also squeezed Cross in the neck and
shoulder area on three or four occasions. Fucaloro made sexual jokes in front of
Cross, told Cross he had had a sexual dream about her, and pinched her legs on
several occasions. Fucaloro also called Cross a “bitch” several times. Cross never
confronted Riddle or Fucaloro about their offensive conduct and she never reported
the harassment to Human Resources or any other member of Prairie Meadows
management.
The district court concluded that Prairie Meadows was entitled to summary
judgment because the incidents of harassment that Cross reported were not severe or
pervasive enough to establish a hostile working environment. The district court also
found that Cross could not show that Prairie Meadows knew or should have known
about the unreported harassment but failed to take proper remedial action.
II.
We review the district court’s grant of summary judgment de novo.
Cheshewalla v. Rand & Son Const. Co., 415 F.3d 847, 850 (8th Cir. 2005). Summary
judgment is proper when, viewing the record in the light most favorable to the non-
moving party, there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Roeben v. BG Excelsior Ltd. P’ship, 545 F.3d
639, 642 (8th Cir. 2008). To survive summary judgment, a plaintiff must substantiate
her allegations with enough probative evidence to support a finding in her favor. Id.
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Cross claims that Prairie Meadows violated Title VII by subjecting her to a
hostile work environment.4 To establish a prima facie claim of hostile work
environment by non-supervisory co-workers, a plaintiff must show (1) that she
belongs to a protected group; (2) that she was subjected to unwelcome sexual
harassment; (3) that the harassment was based on her membership in a protected
group; (4) that the harassment affected a term, condition, or privilege of her
employment by creating a hostile work environment; and (5) that the employer knew
or should have known about the harassment and failed to take proper remedial action.
Alagna v. Smithville R-II Sch. Dist., 324 F.3d 975, 979 (8th Cir. 2003). For purposes
of summary judgment, Prairie Meadows concedes the first three factors. Thus, the
question is whether the harassment rose to the level of a hostile work environment
and, if so, whether Prairie Meadows knew or should have known about the harassment
and failed to take appropriate corrective action.
The standard for demonstrating a hostile work environment on the basis of
sexual harassment is a demanding one. LeGrand v. Area Res. for Cmty. and Human
Servs., 394 F.3d 1098, 1101 (8th Cir. 2005). “Title VII does not prohibit all verbal
or physical harassment and [it] is not a general civility code for the American
workplace.” Nitsche v. CEO of Osage Valley Elec. Coop., 446 F.3d 841, 846 (8th
Cir. 2006) (internal quotations omitted). Actionable conduct must therefore be
extreme rather than merely rude or unpleasant. LeGrand, 394 F.3d at 1101. A
plaintiff must establish that discriminatory intimidation, ridicule, and insult permeated
the workplace. Rheineck v. Hutchinson Tech., Inc., 261 F.3d 751, 756-57 (8th Cir.
2001). In determining whether a plaintiff has demonstrated a hostile work
environment, we consider the totality of the circumstances, including the frequency
4
We use the same framework to analyze Cross’s claims under both Title VII and
the Iowa Civil Rights Act. See Van Horn v. Best Buy Stores, L.P., 526 F.3d 1144,
1147 (8th Cir. 2008) (“In most respects, Iowa courts have used the analytical
framework used for Title VII claims, and have looked to federal law for guidance, in
deciding cases under the ICRA because the ICRA is modeled in part on Title VII.”).
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and severity of the conduct, whether it is physically threatening or humiliating, and
whether it unreasonably interferes with the plaintiff’s job performance. Id. at 757.
A. The Reported Incidents
We agree with the district court’s conclusion that the reported harassment was
not so severe or pervasive that it met the high threshold for a hostile work
environment. Cross reported four discrete incidents over a period of two years. She
first complained to Fucaloro that Rizvic had grabbed her hair and pulled her out of the
valet shack. Cross also reported that Rizvic brushed the back of his hand across her
breast in a purported effort to wipe something off her shirt and that he responded in
an angry and physically threatening manner when she rebuffed his request that they
be “more than friends.” Finally, Cross reported that Rizvic spread a rumor that she
had performed oral sex on him. Taken together, these four incidents over Cross’s
two-year period of employment are insufficient to establish that the work environment
was so permeated with discriminatory conduct that it altered a term, condition, or
privilege of her employment. See, e.g., Duncan v. General Motors Corp., 300 F.3d
928, 935 (8th Cir. 2002); see also Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1988) (“[S]imple teasing, offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the terms and conditions of
employment.”) (internal citation and quotations omitted). This conclusion is
supported by the evidence that the harassment did not unreasonably interfere with
Cross’s job performance, as Cross testified that despite Rizvic’s offensive conduct,
she was able to perform her job well. See Stuart v. General Motors Corp., 217 F.3d
621, 633 (8th Cir. 2000) (holding that the plaintiff could not demonstrate a hostile
work environment because, among other things, she was able to perform her duties
unimpeded by the harassment). Accordingly, Cross has not demonstrated a genuine
issue of material fact with respect to whether the reported harassment rose to the level
of a hostile work environment.
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We further conclude that even if the reported incidents rose to the level of a
hostile work environment, Cross could not show that Prairie Meadows failed to
respond adequately to her complaints. After Cross told Fucaloro that Rizvic had
pulled her hair, Fucaloro addressed all of the valets and admonished them to avoid
horseplay. Cross contends that this response was inadequate for two reasons—first,
because she did not believe that the misconduct was mere horseplay; and second,
because Prairie Meadows’s harassment policy required Fucaloro to report the incident
to Human Resources. For purposes of summary judgment, we credit Cross’s
statements about the severity of the misconduct. It is undisputed, however, that
Fucaloro received conflicting reports about what had happened, with Rizvic and
Chambers expressing the view that Cross had overreacted to a playful tug of her hair.
In these circumstances, Fucaloro’s admonition that the valets should avoid horseplay
was not a failure to take appropriate remedial action. As to Cross’s second argument,
it suffices to say that the obligations of an employer under Title VII are not defined
by the strictures of its own policy on harassment. Although an employer’s failure to
adhere to its internal policies may be relevant in some cases, it does not follow that
violation of an internal reporting procedure automatically establishes a failure to take
appropriate remedial action under federal law. Employers are free to draft harassment
policies that are more stringent than Title VII, and they should be permitted to do so
without fear that they will incur additional liability as a result of their efforts. See
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764 (1998) (“Title VII is designed to
encourage the creation of antiharassment policies and effective grievance
mechanisms.”).
Cross’s last complaint before she left the workplace—that Rizvic had started
a rumor that Cross performed oral sex on him—was forwarded to Human Resources,
and the company conducted an investigation. Again, reports about the incident
conflicted. Rizvic denied starting the rumor and Chambers supported Rizvic’s version
of events. Prairie Meadows ultimately terminated Rizvic, however, for making a
threatening remark in relation to the controversy. Cross faults Prairie Meadows that
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it did not terminate Rizvic as a direct result of her complaint, but she does not explain
what additional action the company could have taken once he was gone. In these
circumstances, Prairie Meadows’s investigation and resolution of this incident cannot
be considered a failure to take proper remedial action.
That leaves Cross’s two complaints about Rizvic brushing the back of his hand
against her breast and about Rizvic’s angry response when she told him she did not
want to be more than friends. Cross claims that Fucaloro talked to Rizvic about
touching her breast but accepted Rizvic’s explanation for the behavior. Additionally,
when Cross told Fucaloro about Rizvic’s angry response to her comment that she
wanted only to be friends, Fucaloro replied, “that’s just Sam.” The record reflects that
these two incidents were reported to Fucaloro as isolated acts rather than repeated,
ongoing instances of misconduct. Although Fucaloro would have been well advised
to take these incidents more seriously, that evidence is not sufficient to establish a
Title VII violation.
Moreover, it is undisputed that Cross knew that there were additional avenues
that she could pursue if she was unsatisfied with the response to her complaints.
Cross also testified that she knew that these alternative routes were effective. Indeed,
when Human Resources eventually learned of one of Cross’s complaints, the company
suspended Rizvic and conducted an investigation. Despite the existence of multiple
avenues for obtaining relief, Cross did not seek additional help in eliminating the
harassment. The record reflects that Cross’s final complaint reached an ultimate
decision-maker only because traffic supervisor Russo instructed Cross to write a
report, which Riddle then sent to Human Resources.
An employee has a duty to take reasonable steps to prevent harassment and
mitigate harm. See Faragher, 524 U.S. at 806-07. When, as here, there are multiple
effective avenues for reporting misconduct, “[a] reasonable person, realizing that her
[initial] complaints were ineffective, would then seek a remedy elsewhere.” Parkins
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v. Civil Constructors of Il., Inc., 163 F.3d 1027, 1038 (7th Cir. 1998). Fucaloro was
a relatively low-level employee, with little managerial discretion and no authority to
make an ultimate decision about whether Rizvic should have been suspended or
terminated for his behavior. Initially, Cross may have reasonably expected Fucaloro
to take her complaints more seriously and forward them to Human Resources or
someone in upper-level management. This expectation, however, became less
reasonable after Cross learned that Fucaloro was unlikely to report her complaints to
anyone else. Yet Cross never took any additional steps after finding that Fucaloro’s
response was unsatisfactory. It is thus difficult to see how she acted reasonably in
attempting to stop the harassment.5 Accordingly, we conclude that the district court
did not err in granting summary judgment with respect to the reported misconduct.
B. The Unreported Incidents
As noted above, since leaving Prairie Meadows Cross has alleged numerous
additional instances of harassment involving Rizvic, Fucaloro, and Riddle.6 The
district court concluded that Cross had failed to show that Prairie Meadows knew or
5
Cross’s continued reliance on Fucaloro and her failure to pursue any alternative
routes to address Rizvic’s behavior are even more baffling in light of her claim that
Fucaloro participated in the harassment.
6
Cross has not explicitly appealed the district court’s grant of summary
judgment with respect to her claims involving Fucaloro and Riddle. In any event, we
agree with the district court’s well-reasoned conclusion that Cross cannot prevail on
these claims. Cross did not tell Fucaloro or Riddle that their behavior was
objectionable, and she failed to complain to Prairie Meadows about the harassment,
despite its provision of an effective anti-harassment policy. Summary judgment was
therefore proper. See Gordon v. Shafer Contracting Co., Inc., 469 F.3d 1191, 1195
(8th Cir. 2006) (explaining that an employer is not liable for harassment by
supervisory personnel if the employer can prove that it exercised reasonable care to
prevent and promptly correct the harassment and that the employee unreasonably
failed to take advantage of corrective opportunities).
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should have known about these incidents. To survive summary judgment, a plaintiff
must have sufficient evidence that her employer knew or should have known about
the harassment and failed to take proper remedial action. An employer therefore
cannot be held liable for unreported harassment unless there is some basis for
establishing that it knew or should have known about the misconduct.
Cross concedes that she never reported the harassment, and the record shows
that it occurred while the valets worked outside, usually in a parking lot and at night.
Cross points to the fact that some of the valets who worked with her testified that they
witnessed harassment, which she contends supports the inference that the harassment
was obvious to everyone at Prairie Meadows. But several other valets who also
worked with Cross claimed not to have observed any misconduct, or claimed that
Cross participated in the offensive dialogue. The evidence thus does not support the
contention that the harassment was so ubiquitous that it could not have been missed.
And Fucaloro, Riddle, and other members of Prairie Meadows management all
testified that they had no knowledge of the unreported harassment. On this record, the
district court did not err in concluding that the evidence was insufficient to raise a
genuine issue of material fact as to whether Prairie Meadows knew or should have
known about the additional, unreported incidents.
Cross argues that the district court should have considered portions of
Fucaloro’s testimony that she interprets as meaning that Fucaloro observed Rizvic
harassing her on a daily basis. The parts of Fucaloro’s deposition to which Cross
points, however, do not establish that Fucaloro was aware of misconduct that would
rise to the level of a hostile work environment. In referring to Rizvic pulling Cross’s
ponytail, Fucaloro offered the following explanation:
Fucaloro: On a daily basis, these guys tease each other like
this, joke around, try to keep everything—
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Cross’s Attorney: Are you testifying that Sam [Rizvic] teased Ms.
Cross like that on a daily basis?
Fucaloro: They both did to each other, yes.
Cross’s Attorney: What other examples can you give of Sam
[Rizvic] teasing Ms. Cross on a daily basis?
Fucaloro: Just horseplay stuff.
Construed in the light most favorable to Cross, that testimony shows that
Fucaloro believed that Cross and Rizvic engaged in mutual teasing, not that Cross was
sexually harassed. Indeed, Fucaloro later clarified his testimony by answering “no”
when asked whether he observed anything remotely sexual in the behavior to which
he had referred. Cross contends that Fucaloro’s use of the label “horseplay” was
inaccurate and self-serving and that a reasonable jury could infer that what Fucaloro
considered teasing was actually sexual harassment. She argues that this is so because
the hair-pulling incident was a serious assault and because Fucaloro elsewhere
admitted that Rizvic’s conduct fell under the company’s definition of sexual
harassment. Fucaloro testified, however, that his perception of the hair-pulling
incident as horseplay was based on a witness who had contradicted Cross’s
description of the encounter. Although Fucaloro may have been wrong about the
severity of the misconduct, there is no basis for doubting the sincerity of his belief.
As for Cross’s claim that Fucaloro knew that the behavior fell within Prairie
Meadows’s sexual harassment policy, we have already explained that employers may
draft harassment policies that are narrower and more demanding than Title VII.
Further, the record does not support Cross’s interpretation of Fucaloro’s testimony.
Fucaloro testified as follows:
Cross’s Attorney: Let’s go back to [the sexual harassment policy].
The fourth bullet point toward the bottom of the
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page reads, “It is not your job to decide whether
or not the complaint should be reported. If it was
reported to you, YOU MUST FORWARD THE
COMPLAINT TO HUMAN RESOURCES,” and
“YOU MUST FORWARD THE COMPLAINT
TO HUMAN RESOURCES” is in capital letters,
isn’t it?
Fucaloro: Yes, it is.
Cross’s attorney: Your failing to take [the hair-pulling incident] to
human resources directly violates this policy,
doesn’t it, sir?
Fucaloro: Yes, it does, but at the time it was more under
mutual respect, I believe, rather than being sexual
harassment, or harassment.
When read in its entirety, that testimony does not reasonably support the
inference that Fucaloro believed that the hair-pulling incident was sexual harassment.
To the contrary, Fucaloro stated that he believed the conduct fell within the
company’s policy on mutual respect between employees. The record does not support
Cross’s assertion that Fucaloro intentionally mislabeled Rizvic’s conduct or that
Fucaloro admitted observing sexual harassment on a daily basis. Even if an inference
could be drawn that Fucaloro might have observed additional incidents of sexual
harassment, his testimony would not provide enough evidence for a reasonable jury
to find that Prairie Meadows was aware of harassment that rose to the level of a
hostile work environment. See Anda v. Wickes Furniture Co., Inc., 517 F.3d 526, 533
(8th Cir. 2008) (holding that to survive summary judgment, a plaintiff must have more
than a mere scintilla of evidence that an employer was aware of unreported sexual
harassment). Accordingly, the district court did not err in granting summary judgment
on the ground that Cross failed to show that Prairie Meadows knew or should have
known about the unreported harassment.
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III.
The judgment is affirmed.
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