Alvarez v. Des Moines Bolt Supply, Inc.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 09-1465
___________

Veronica Alvarez, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Des Moines Bolt Supply, Inc., *
*
Appellee. *
___________

Submitted: December 17, 2009
Filed: November 17, 2010
___________

Before BYE, BEAM, and COLLOTON, Circuit Judges.
___________

COLLOTON, Circuit Judge.

Veronica Alvarez asserts that while she was employed at Des Moines Bolt
Supply, Inc. (“DMB”), she was subjected to sexual harassment from co-workers, and
that the company retaliated against her when she complained about the harassment.
Alvarez filed suit under Title VII and the Iowa Civil Rights Act, alleging retaliation
and sex discrimination based on a hostile environment. The district court1 granted
summary judgment for DMB, and Alvarez appeals. We affirm.

1
The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa.
 I.

As we are reviewing a grant of summary judgment, we describe the facts in the
light most favorable to Alvarez. Alvarez was employed in the kit department of
DMB’s Des Moines plant, sorting nuts and bolts, from February 19, 2001, until her
resignation on May 2, 2006. Beginning in September 2005, Alvarez recorded in a
journal incidents of offensive conduct directed at her by non-supervisory co-workers
at DMB. Her journal documented several episodes of inappropriate conduct,
including occurrences involving co-worker Brad Nurnberg. Nurnberg made sexually
explicit comments to Alvarez and touched her inappropriately.

Alvarez complained to DMB employees about inappropriate conduct by her co-
workers on several occasions. First, at a time not specified in the record, Alvarez
complained to Sharon Miller, a receptionist with human resources responsibilities, that
a co-worker commented on her breasts. Miller did not recall whether she took any
action in response to Alvarez’s complaint.

Around November 2005, Alvarez complained to her supervisor, Jay Owens,
that Nurnberg had made sexual comments to her. In response, Owens warned
Nurnberg not to say anything “sexually inappropriate.” Owens also claims that he
reported this complaint to Dave Norem, the warehouse manager, but Norem did not
recall the complaint, and stated that if he did hear the complaint, he probably did not
take any action.

Alvarez later complained to Owens again that Nurnberg made inappropriate
comments of a sexual nature. Owens testified that he took the same steps in response
to the second complaint and talked to Nurnberg again. Nurnberg recalled Owens
warning him only once.

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 On January 10, 2006, Alvarez complained to Owens for the first time about
physical activity by Nurnberg. Alvarez told Owens that Nurnberg had “slapped her
on the butt.” Owens asserted that in response to this complaint, he talked to Nurnberg,
and that Nurnberg denied slapping Alvarez. Owens also said that he talked to other
employees about the complaint, and that one employee, Brandin Bales, said that he
saw Nurnberg slap Alvarez. Owens made “a file up” and let upper management
decide what to do with Nurnberg.

Nurnberg continued with similar conduct, and on January 20, 2006, Alvarez
complained to her new supervisor, Clint Jubell. Alvarez told Jubell that Nurnberg was
slapping her buttocks, that he called both her and her husband a “dumb ass,” and that
he brushed up against her and said “[o]h, Veronica, I’m going to tell that you touched
my balls.” Jubell asked Alvarez to put her complaint in writing.

Alvarez’s written complaint contained similar allegations against Nurnberg.
Alvarez stated that Nurnberg “smacks” her butt a lot, whispered sexual slurs in her
ear, and called her and her husband a “dumb ass.” One alleged slur was a statement
by Nurnberg that “[t]o [sic] bad you have [a] 5lb [r]estriction cause I [n]eed your help
to hold my 12lb penis in the [b]athroom.” She also alleged that Nurnberg made sexual
advances toward her, commented on her breasts, handed out a joke flyer that someone
found offensive, and stood over her so that when she turned around her shoulder
would rub against his penis.

DMB began to investigate Alvarez’s allegations. Jubell says that within one
business day of Alvarez’s complaint, he met with Nurnberg and explained what
Alvarez had alleged in her complaint. Nurnberg admitted making “off-colored jokes,”
but denied the allegations against him. In the course of his investigation, Jubell
contacted Michael Thompson, the operations manager for DMB, and Thompson
decided to take over the investigation. Thompson interviewed employees who worked
with Alvarez in the kit department and other employees who were in the area.

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 DMB collected written statements from several DMB employees. Brandin
Bales reported that he saw Nurnberg slap Alvarez “in the rear.” Another kit
department employee, Jamer Lickteig, wrote that he had overheard “dirty” jokes
between the two, but at the same time said that he had not heard or seen anything
“inappropriate.” Damon Robinson, a DMB employee, wrote that he had seen Alvarez
and Nurnberg engage in inappropriate actions toward each other, including dirty joke-
telling and “smacking” of buttocks over a period of twelve to eighteen months. Kenny
Sledge, who performed information technology work in the office at DMB, observed,
“I have known [Nurnberg and Alvarez] to make off-color jokes towards each other
and have never noticed any kind of discomfort between the two of them.”

Nurnberg also contributed a statement, dated January 30, 2006, alleging that he
and Alvarez had made “random sexual coments [sic] and gestures” to each other for
two years prior to the complaint. He stated that the buttocks slapping was started by
Alvarez and another employee as a game, and that it was introduced to him by
Alvarez. Nurnberg also asserted that Alvarez often told him about her sex life, and
that he was surprised about the harassment complaint, because Alvarez recently had
been asking him if she could ride along with him to lunch.

After collecting witness statements, Thompson prepared a report of the
investigation. Thompson’s report summarized the allegations of Alvarez and
Nurnberg, and some of the oral and written witness statements. The report concluded:

Based on the statements of both Mr. Numberg [sic], and Mrs. Alvarez,
and taking into account the statements of other employees, it is credible;
that both employees engaged in behavior and conduct that is strictly and
specifically prohibited by DMB supply company policy. Specifically;
“Verbal and physical conduct of a sexual nature[.]” Based on the
statements of other employees as well as Mr. Numberg’s [sic] own
admission, it appears that this behavior was ongoing for some time.

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 Company policy states that any violation will be dealt with by corrective
action up to and including termination of employment.

Thompson forwarded his finished report to Gary Beane, the treasurer of DMB, and
Wayne Simmer, DMB’s president and one of its owners.

Thompson met with Simmer and Beane to discuss how DMB should respond
to the report. Simmer suggested that both Alvarez and Nurnberg be terminated, but
Thompson “didn’t feel that a first-time violation where both people had been engaging
in the practice deserved termination for either one of them.” The company’s final
decision was to suspend both employees without pay for five days beginning on
January 31, 2006. After the suspension, DMB transferred Nurnberg to another
department, and he did not harass Alvarez again.

When Alvarez returned from her suspension, she experienced problems with
other co-workers. One co-worker, Mike Sydnes, made numerous sexual advances,
commented on her breasts, and grabbed her arm. Alvarez did not report these
incidents to any supervisor or management employee at DMB.

Alvarez continued to work at DMB until April 29, 2006. Alvarez was
scheduled to work on May 1, 2006, but she called DMB and left a message saying that
she had to stay with her daughter. In a letter dated May 2, Alvarez resigned from her
position at DMB. She explained that she was resigning because of “continuous sexual
harassment with co-workers and the lack of action taken by Supervisors, Managers,
and the owner himself.” She also attached a list of incidents that she encountered in
her final weeks of employment.

Alvarez filed suit against DMB, alleging sex discrimination and retaliation,
under both Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, 2000e-3,
and the Iowa Civil Rights Act of 1965 (“ICRA”), Iowa Code §§ 216.6, 216.11. The

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district court granted summary judgment for DMB on both the state and federal
claims. The court dismissed Alvarez’s retaliation claims based on the suspension,
because she could not show that DMB’s reason for the suspension was pretext for
unlawful discrimination. The court ruled that Alvarez could not prove constructive
discharge because she did not notify DMB about the post-suspension harassment
before she resigned. The court also granted DMB’s motion for summary judgment
on the discrimination claims, because DMB took prompt remedial action in response
to the pre-suspension harassment that was not welcomed, and because DMB did not
have knowledge of the post-suspension harassment.

II.

We review the district court’s grant of summary judgment de novo, viewing the
evidence in the light most favorable to Alvarez, the non-moving party. Semple v. Fed.
Express Corp., 566 F.3d 788, 791 (8th Cir. 2009). Summary judgment is appropriate
“if the pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2).2

2
Consistent with our precedent, the district court concluded that the Iowa Civil
Rights Act is interpreted in the same way as Title VII. See Montgomery v. John Deere
& Co., 169 F.3d 556, 558 n.3 (8th Cir. 1999); Helfter v. United Parcel Serv., Inc., 115
F.3d 613, 616 (8th Cir. 1997). The Supreme Court of Iowa’s recent decision in
DeBoom v. Raining Rose, Inc., 772 N.W.2d 1 (Iowa 2009), concerning Iowa Code
§ 216.6 suggests that not all federal and Iowa discrimination claims should be
analyzed the same. See Newberry v. Burlington Basket Co., No. 09-3802, 2010 WL
3746346, at *3 (8th Cir. Sept. 28, 2010). Alvarez does not argue, however, that the
Iowa court has interpreted the retaliation provision of Iowa Code § 216.11 differently
from the retaliation provision of Title VII, or that the Iowa court has formulated a
different meaning of what constitutes a hostile work environment for purposes of a
sex discrimination claim. We therefore analyze the federal and state claims together
in this case.

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 A.

Alvarez first contends that she produced sufficient evidence to support a
reasonable inference that she was suspended in retaliation for making a complaint of
sexual harassment. Title VII makes it unlawful for an employer to discriminate
against an employee because she has “opposed any practice made an unlawful
employment practice,” or has made a charge or participated in an investigation or
proceeding under the statute. 42 U.S.C. § 2000e-3(a). A plaintiff must show that the
protected conduct was a determinative factor in the employer’s materially adverse
employment action. Van Horn v. Best Buy Stores, 526 F.3d 1144, 1148 (8th Cir.
2008). Because the factual record was fully developed in connection with the motion
for summary judgment, we address directly whether Alvarez has presented a genuine
issue of material fact for trial on the ultimate question of discrimination vel non. Riser
v. Target Corp., 458 F.3d 817, 821 (8th Cir. 2006).

The key question here is whether Alvarez presented sufficient evidence to
support a conclusion that DMB’s proffered reason for suspending her was pretext for
a retaliatory motive. See Hunt v. Neb. Pub. Power Dist., 282 F.3d 1021, 1028 (8th
Cir. 2002). DMB asserted that Alvarez was suspended because she violated DMB’s
sexual harassment policy by engaging in prohibited “[v]erbal and physical conduct of
a sexual nature.” Insofar as Alvarez argues there is a genuine issue of fact about
whether she actually violated company policy and thus deserved to be suspended, her
argument is misdirected. As long as DMB honestly believed that Alvarez violated
company policy, and acted on that basis, DMB is not liable for discrimination, even
if a trier of fact would disagree with its finding. See Richey v. City of Independence,
540 F.3d 779, 784 (8th Cir. 2008). “If the employer takes an adverse action based on
a good faith belief that an employee engaged in misconduct, then the employer has
acted because of perceived misconduct, not because of protected status or activity.”
Id. We focus, therefore, on whether Alvarez can show that a genuine issue of material
fact exists as to whether DMB suspended her because of her complaint about sexual

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harassment, rather than because DMB believed that she violated company policy. See
Stuart v. Gen. Motors Corp., 217 F.3d 621, 637 (8th Cir. 2000).

Alvarez claims that her complaint of harassment was a determinative factor in
her suspension, because but for her complaint, DMB would not have conducted the
investigation that resulted in her suspension. Filing a harassment complaint, however,
does not insulate an employee from the consequences of violating company policy.
See Richey, 540 F.3d at 784. That Alvarez’s complaint was the genesis of the
investigation that led to her suspension does not, in and of itself, tend to show that she
was a victim of unlawful retaliation.

Alvarez also argues that DMB did not act in good faith reliance on its internal
investigation, because the company had reason to believe that reports of Alvarez’s
misconduct were false. She highlights that Nurnberg’s complaint against her arose
in response to allegations filed against him, that Nurnberg changed his story about his
own harassment, that she consistently denied participating in harassment, and that
other co-workers did not witness Alvarez’s alleged harassment. She also complains
that Damon Robinson, one of the co-workers who claimed to have witnessed
Alvarez’s misconduct, was known to be a friend of Nurnberg, and that Thompson told
Robinson that he was trying “to help the company, help [Nurnberg].” DMB responds
that other witnesses supported a finding of misconduct by Alvarez, that Thompson
learned that Robinson was also “tight” with Alvarez, and that Thompson and DMB
ultimately disciplined Nurnberg rather than protect him.

In our view, the record does not support a reasonable inference that DMB acted
with an intent to retaliate rather than based on a good faith judgment reached after its
workplace inquiry. An internal investigation, like a judicial proceeding, often
produces conflicting evidence and requires judgments about credibility and the weight
to be given various pieces of information. That an employer must choose among
competing inferences does not mean that there inevitably is a genuine issue of fact

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concerning the employer’s good faith. Here, DMB decided to discipline both
Nurnberg and Alvarez after investigating Alvarez’s complaint of harassment; Alvarez
alleges retaliation. If DMB had opted instead to discipline only Nurnberg despite
reports that Alvarez also engaged in misconduct, then Nurnberg might well have
alleged disparate treatment based on sex. There may have been two reasonable
responses for DMB under the circumstances, but an employer who investigates
allegations of workplace misconduct is entitled to latitude in evaluating the
information gathered, so long as the employer acts in good faith. See EEOC v. Total
Sys. Servs, Inc., 221 F.3d 1171, 1176-77 (11th Cir. 2000). The evidence here was not
so lopsided as to support a reasonable conclusion that DMB was acting in bad faith
when it determined that Alvarez committed misconduct.

Alvarez also complains that when Thompson summarized the written
statements made by witnesses Kenny Sledge and Jamer Lickteig, he rephrased the
statements to make them appear as if they accused Alvarez of harassment. This
argument overstates the reasonable inferences that can be drawn from the record.
Thompson’s summary explains that some of the relevant information was obtained in
a “verbal interview.” That Thompson’s summary includes information different from
the statements written by the witnesses, therefore, does not demonstrate that the
summary is misleading, because the summary never purported to limit its information
to the written statements. Alvarez also objects that Thompson omitted all female input
from his investigation report. But Thompson was not required to interview all
possible witnesses, and no woman who was interviewed provided information about
misconduct by Nurnberg and Alvarez.

Alvarez asserts the discriminatory attitude of one or more of the decisionmakers
on her suspension supports a finding of discriminatory intent. She alleges that Wayne
Simmer, the president and an owner of DMB, referred to women as “dumb skirts,”
commented on the appearance of a female job applicant, had sexual relationships with
other employees, and demoted an employee who ended a sexual relationship with him.

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She also points to the fact that Thompson was later discharged from DMB, in part for
viewing sexually inappropriate websites at work. We disagree that the distasteful
behavior of Simmer and Thompson supports a reasonable inference of retaliatory
motive. Thompson’s preference in websites is not probative of whether he tolerated
sexual harassment or discouraged complaints about it. Simmer’s alleged conduct and
statements are unsavory if true, but the fact remains that DMB developed through
Thompson’s investigation evidence that Nurnberg and Alvarez violated company
policy against conduct of a sexual nature. Simmer’s allegedly sexist attitudes,
manifested with respect to different employees in unrelated contexts, are not sufficient
to show that the finding of misconduct by Alvarez was really a pretext for a retaliatory
motive.

Finally, relying on Gilooly v. Missouri Department of Health & Senior Services,
421 F.3d 734 (8th Cir. 2005), Alvarez contends that her retaliation claim must be
submitted to a jury because DMB’s conclusion that she violated company policy was
based solely on statements of interested witnesses. The narrow holding of Gilooly,
however, was that a genuine issue of fact existed concerning the employer’s motive
when an employer’s discipline was based solely on its disbelief of an employee’s
harassment complaint, without any independent corroboration. Id. at 740-41; see also
Richey, 540 F.3d at 784-85. Here, Alvarez was disciplined after DMB reasonably
concluded that an investigation showed that she committed misconduct of a sexual
nature. DMB’s decision was not based on its belief that Alvarez filed a false
complaint.

For these reasons, the district court did not err in granting summary judgment
in favor of DMB on Alvarez’s retaliation claim.

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 B.

Alvarez also asserted a retaliation claim based on a theory of constructive
discharge. She argued that her resignation was prompted by sexual harassment that
continued after her suspension. To prove a constructive discharge, an employee must
show that the employer deliberately created intolerable working conditions with the
intention of forcing her to quit. Coffman v. Tracker Marine, L.P., 141 F.3d 1241,
1247 (8th Cir. 1998). An employee is not constructively discharged, however, if she
quits “without giving her employer a reasonable chance to work out a problem.” Id.
Alvarez contends that the harassment she experienced throughout her employment at
DMB, and DMB’s failure to eradicate the harassment led to her being constructive
discharge.

This claim fails, because Alvarez did not show that she notified DMB about the
post-suspension misconduct and provided the company with an opportunity to remedy
the problem before she resigned. Prior to Alvarez’s suspension, she complained about
Nurnberg’s behavior. DMB investigated the complaints, suspended Nurnberg, and
transferred him so he could no longer harass her. Alvarez did not make similar
complaints about co-workers after she returned from her suspension. She admits that
she never informed supervisors or management employees at DMB about any post-
suspension harassment. Having given DMB no reasonable opportunity to remedy the
problem, Alvarez cannot assert a successful constructive discharge claim. See
Coffman, 141 F.3d at 1247.

Alvarez contends that she should be excused from the notice requirement,
because she had no chance for fair treatment if she complained again about
harassment. She concludes that DMB would not have treated her fairly, because the
company initially ignored her complaints about Nurnberg, and then suspended her as
a result of its later investigation into the complaints. “Part of an employee’s
obligation to be reasonable,” however, “is an obligation not to assume the worst, and

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not to jump to conclusions too fast.” Smith v. Goodyear Tire & Rubber Co., 895 F.2d
467, 473 (8th Cir. 1990) (emphasis and internal quotation omitted). That DMB may
not have investigated Alvarez’s initial complaints with lightning speed, or that
Alvarez’s complaints about Nurnberg led to the discovery of evidence that she herself
violated company policy, did not excuse Alvarez from at least notifying DMB about
the continued misconduct to see how the company would respond. The district court
thus properly granted summary judgment in favor of DMB on Alvarez’s constructive
discharge claim.

III.

Alvarez next contends that the district court erred in granting summary
judgment on her sexual harassment claims. Her claim is that sexual harassment by co-
workers resulted in a hostile work environment that amounted to sex discrimination
in violation of Title VII. See Vajdl v. Mesabi Acad. of Kidspeace, Inc., 484 F.3d 546,
549 (8th Cir. 2007). To prove such a claim, Alvarez must establish that (1) she is a
member of a protected group, (2) she was subjected to unwelcome sexual harassment,
(3) the harassment was based on sex, and (4) the harassment affected a term,
condition, or privilege of her employment. LeGrand v. Area Res. for Cmty. & Human
Servs., 394 F.3d 1098, 1101 (8th Cir. 2005).

DMB cannot be vicariously liable for sexual harassment by non-supervisory co-
workers. See Engel v. Rapid City Sch. Dist., 506 F.3d 1118, 1123 (8th Cir. 2007).
But DMB may be directly liable for its employees’ actions that violate Title VII if the
company “knows or should have known of the conduct, unless it can show that it took
immediate action and appropriate corrective action.” Id. (internal quotation omitted).
Where an employer takes “prompt remedial action that is reasonably calculated to stop
the harassment,” the employer is not liable under Title VII for the underlying sexual
harassment. Id. When an employee complains about inappropriate conduct that does
not rise to the level of a violation of law, however, there is no liability for a failure to

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respond. EEOC v. Harbert-Yeargin, Inc., 266 F.3d 498, 521 (6th Cir. 2001) (Guy, J.,
opinion for the court on this point); cf. Frazier v. Fairhaven Sch. Comm., 276 F.3d 52,
67 (1st Cir. 2002) (“In the absence of conduct creating a sex-based hostile educational
environment, laxity on the part of school officials in investigating an incident is not
actionable under Title IX.”).

A.

Alvarez first argues the DMB should be liable for sexual harassment by
Nurnberg and other co-workers that occurred before her January 10 complaint to
Owens. She disputes the district court’s conclusion that she welcomed the sexually-
oriented comments, because she voluntarily participated in similar banter. Assuming
for the sake of analysis that this dialogue was not welcomed, we conclude that
summary judgment was nevertheless appropriate on other grounds.

For harassment to be actionable under Title VII, Alvarez must demonstrate that
the harassment “was sufficiently severe or pervasive as to affect a term, condition, or
privilege of employment by creating an objectively hostile or abusive environment.”
Meriwether v. Caraustar Packaging Co., 326 F.3d 990, 993 (8th Cir. 2003). The
standards for a hostile environment are demanding, and “conduct must be extreme and
not merely rude or unpleasant to affect the terms and conditions of employment.”
Alagna v. Smithville R-II Sch. Dist., 324 F.3d 975, 980 (8th Cir. 2003). When
evaluating a hostile environment, we look at the totality of the circumstances,
“including the frequency and severity of the discriminatory conduct, whether such
conduct was physically threatening or humiliating, as opposed to a mere offensive
utterance, and whether the conduct unreasonably interfered with the employee’s work
performance.” Vajdl, 484 F.3d at 551.

In light of our precedents defining the degree of severity that is required to
demonstrate a hostile work environment, we conclude that the sexually-oriented

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remarks by Alvarez’s co-workers of which DMB had notice before Alvarez’s
complaint on January 10 did not amount to actionable sexual harassment. DMB was
on notice that Nurnberg and others made sexually inappropriate comments, including
about Alvarez’s breasts on several occasions, and that Nurnberg told Alvarez that he
was fixing a table so she could “strip dance on it.”

In Vajdl, however, this court held that more severe co-worker misconduct did
not create a hostile environment. The employee in Vajdl alleged that over the course
of three months, one co-worker commented about her body frequently, touched the
bangs of her hair, wiped water off her pant leg, repeatedly suggested she leave her
boyfriend and go on dates with him, telephoned her at home, and offered to buy her
a drink and give her a ride home. 484 F.3d at 551-52. A second co-worker repeatedly
requested that the employee go on dates with him, and the third co-worker made
inappropriate comments about her body over a two-week period. See id. at 551. Our
court held that the employee could not “objectively support a claim of harassment so
severe or pervasive as to alter a term, condition, or privilege of her employment.” Id.
at 552; see also LeGrand v. Area Res. for Cmty. & Human Servs., 394 F.3d at 1102-
03; Duncan v. Gen. Motors Corp., 300 F.3d 928, 935 (8th Cir. 2002).

For better or worse, “Title VII does not authorize us to impose a ‘general
civility code.’” Alagna, 324 F.3d at 980 (quoting Faragher v. City of Boca Raton, 524
U.S. 775, 788 (1998)). Because the episodes of misconduct of which DMB had notice
prior to January 10 did not create a hostile environment, the company is not liable
under Title VII regardless of whether DMB took prompt remedial action after
Alvarez’s initial complaints.

B.

DMB was later placed on notice that Alvarez was subject to physical touching
and sexual comments by Nurnberg, and Alvarez contends that DMB should be liable

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for this harassment. On January 10, 2006, Alvarez complained to Owens that
Nurnberg had “slapped her on the butt.” On January 20, 2006, Alvarez filed a written
complaint with Clint Jubell, notifying DMB of many more incidents of physical
touching and inappropriate comments.

“A hostile work environment is a cumulative phenomenon,” and a series of
individual episodes of inappropriate behavior eventually can amount to a hostile
environment. Engel, 506 F.3d at 1124. We assume that after Alvarez’s complaint of
January 10 to Owens, DMB was on notice of harassment that arose to the level of a
hostile environment. We therefore do not dispute the conclusion of the partial dissent,
post, at 18-19, that the totality of Nurnberg’s actions, verbal and physical, could
amount to actionable harassment. But we conclude that DMB is not liable for co-
worker harassment by Nurnberg, because DMB’s response was sufficient to avoid
liability. If an employer responds to harassment with prompt remedial action
calculated to end it, then the employer is not liable for the harassment. Id. at 1123.
“Factors in assessing the reasonableness of remedial measures may include the
amount of time that elapsed between the notice and remedial action, the options
available to the employer, . . . and whether or not the measures ended the harassment.”
Carter v. Chrysler Corp., 173 F.3d 693, 702 (8th Cir. 1999) (citations omitted).
Employees often must “tolerate some delay,” however, so that an employer can
“gauge the credibility of the complainant and the seriousness of the situation.” Dhyne
v. Meiners Thriftway, Inc., 184 F.3d 983, 988 (8th Cir. 1999)

When Alvarez complained to Owens on January 10 about physical harassment,
Owens talked to Nurnberg about the complaint and Nurnberg denied it, and spoke
with a co-worker, Brandin Bales, who had seen Nurnberg slap Alvarez. Owens
reported this information to upper management. Ten days later, on January 20, 2006,
Alvarez filed her written complaint with Jubell. Following this complaint, DMB
launched an investigation that involved interviewing Alvarez’s co-workers.
Thompson prepared a report about the investigation and concluded that both Alvarez

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and Nurnberg had violated company policy. On January 31, DMB suspended
Nurnberg without pay for five days, and after the suspension, transferred him to
another department and he never harassed Alvarez again.

DMB’s actions were “reasonably calculated to stop the harassment.” Carter,
173 F.3d at 702. Although Alvarez was required to tolerate some delay while DMB
investigated the complaint and formulated a remedy, DMB’s response effectively
ended the harassment within a reasonable time. Accordingly, the district court
properly granted summary judgment in favor of DMB on Alvarez’s discrimination
claims based on pre-suspension sexual harassment.

C.

Alvarez next contends that the district court erred by holding that DMB was not
liable for harassment that occurred after Alvarez’s suspension. On this issue, the
district court concluded that Alvarez failed to show that DMB knew or should have
known of the post-suspension harassment and failed to take proper remedial action.

It is undisputed that Alvarez did not notify any supervisor or management
employee at DMB about alleged harassment after her suspension. Alvarez asserts,
however, that DMB’s failure to respond to her initial complaints, and DMB’s decision
to suspend her after a complaint, create a jury question as to whether DMB is
responsible for her failure to report post-suspension harassment.

Generally speaking, fear of retaliation is not a proper excuse for an employee’s
failure to report sexual harassment. Adams v. O’Reilly Auto., Inc., 538 F.3d 926, 932-
33 (8th Cir. 2008). “Normally bringing a retaliation claim, rather than failing to report
sexual harassment, is the appropriate response to the possibility of retaliation.” Id. at
933. In some cases, however, an employee may be excused for a delay in reporting
harassment, if the employee can “demonstrate a truly credible threat of retaliation.”

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Weger v. City of Ladue, 500 F.3d 710, 725 (8th Cir. 2007) (internal quotation
omitted).

Alvarez has not presented sufficient evidence to support a finding of a truly
credible threat of retaliation that could excuse her failure to provide DMB notice of
post-suspension harassment. DMB responded to her previous complaints about
Nurnberg and disciplined him for misconduct. DMB’s decision to suspend Alvarez
was not based on her sexual harassment complaint, but on an investigation that
revealed misconduct by Alvarez. Alvarez presents no evidence other than the prior
discipline to show that DMB supervisors discouraged her from reporting harassment
after her suspension. The record is thus insufficient to show that it was reasonable for
Alvarez to conclude that another complaint would subject her to retaliation.

Alvarez also asserts that DMB should have been aware of the post-suspension
harassment, because upper management at the company tolerated sexual misconduct
and harassment at DMB was pervasive. When harassment of an employee is so severe
and pervasive that an employer should know of it, the employer is charged with
constructive knowledge of the harassment. See Jenkins v. Winter, 540 F.3d 742, 749
(8th Cir. 2008). Alvarez points to no evidence, however, that DMB was on notice of
any harassment targeted at Alvarez after her suspension, and we are not persuaded that
other unrelated misconduct at DMB notified the company of additional harassment
aimed at Alvarez. The alleged conduct of Alvarez’s co-workers was contemptible, but
the evidence does not support a finding that DMB had constructive knowledge of
post-suspension harassment of Alvarez, and the company cannot be directly liable for
any such harassment.

* * *

The judgment of the district court is affirmed.

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BEAM, Circuit Judge, concurring and dissenting.

I concur in Parts I and II of the court's opinion. I disagree, however, with the
court's conclusion that the record permits Ms. Alvarez's "hostile work environment"
claim to be decided through summary judgment. "To overcome summary judgment
on her hostile work environment claim [Alvarez] must present evidence from which
a reasonable jury could find that [the] conduct towards her was more than merely
offensive, immature or unprofessional . . . ." Henthorn v. Capitol Commc'ns, Inc. 359
F.3d 1021, 1027 (8th Cir. 2004). But, "[t]here is no bright line between sexual
harassment and merely unpleasant conduct." Id. at 1026 (quotation omitted). Thus,
we must look to the "totality of the circumstances" weighing "the frequency of the
behavior, its severity, whether physical threats are involved, and whether the behavior
interferes with plaintiff's performance on the job." Id. The court concludes that the
behavior here was not severe enough. I disagree that on the available record this can
be decided by summary judgment.

Alvarez alleged (and established) that Nurnberg verbally and physically
harassed her. Respecting the verbal harassment, the record shows that Alvarez was
the target of sexually explicit jokes and language on several occasions including
comments (1) eliciting her for sex; (2) about the size of her breasts; (3) harassing her
for "touching" Nurnberg's genitals; (4) regarding a "joke flyer" which concerned
Alvarez; and (5) about her inability to lift Nurnberg's male genitalia because of her
weight restrictions. As concerns physical harassment, Nurnberg (1) smacked
Alvarez's buttocks on several occasions; (2) stood close behind her so that her
shoulder brushed his genitals; (3) pressed his genitals against her buttocks; (4)
squeezed her neck; and (5) grabbed her hair. Additionally, other employees were
alleged to have (1) smacked Alvarez on the buttocks; (2) pretended to smack her; and
(3) grabbed her arm.

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 In reviewing the record, the district court seems only to have examined those
actions of Nurnberg which Alvarez directly alleged in her written complaint to C.
Jubell. But, as indicated, we must look to the "totality of the circumstances." Id.; see
also Delph v. Dr. Pepper Bottling Co. of Paragould, Inc., 130 F.3d 349, 355 (8th Cir.
1997) (noting that the evidence we examine must "not be compartmentalized, but must
instead be based on the totality of circumstances of the entire hostile work
environment" (quotation omitted)); Williams v. Gen. Motors Corp., 187 F.3d 553, 562
(6th Cir. 1999) (noting that the totality of circumstances test "includes all incidents of
alleged harassment"). While Alvarez may not have specifically listed all of the
alleged harassment in her written employment complaint, her pleadings set forth, and
she has presented evidence supporting, a number of other actions. We should consider
all of these actions.

As also earlier noted, "[a] work environment is shaped by the accumulation of
abusive conduct, and the resulting harm cannot be measured by carving it into a series
of discrete incidents." Hathaway v. Runyon, 132 F.3d 1214, 1222 (8th Cir. 1997)
(internal quotation omitted). Accordingly, I believe Alvarez has established enough
facts to survive summary judgment. That is because "[o]nce there is evidence of
improper conduct and subjective offense, the determination of whether the conduct
rose to the level of abuse is largely in the hands of the jury." Howard v. Burns Bros.,
Inc., 149 F3.d 835, 840 (8th Cir. 1998).

I recognize that the hostile environment factor is difficult to analyze in light of
our varying jurisprudence. Compare Duncan v. Gen. Motors Corp., 300 F.3d 928 (8th
Cir. 2002) (finding that a single request for a relationship, four or five isolated
touching incidents, a request to draw a phallic symbol and teasing in the form of a
gender-based poster were not severe enough to meet this element); with Eich v. Bd.
of Regents, 350 F.3d 752 (8th Cir. 2003) (holding that several touching incidents,
standing behind the plaintiff simulating a sex act, and another incident of simulating
a sex act were severe or pervasive enough to affect a term or condition of

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employment). However, "[e]ach case must stand on its own circumstances." Eich,
350 F.3d at 760. In light of the fact that we analyze the facts in each case
independently, I believe that Alvarez has raised a genuine issue of fact for the jury to
determine whether she was subjected to conduct which affected a term or condition
of her employment. I would reverse and remand on this issue.
______________________________

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