Denise Blomker v. Sally Jewell

United States Court of Appeals
For the Eighth Circuit
___________________________

No. 15-1787
___________________________

Denise Blomker

lllllllllllllllllllll Plaintiff - Appellant

v.

Sally Jewell, Secretary of the United States Department of the Interior

lllllllllllllllllllll Defendant - Appellee
____________

Appeal from United States District Court
for the District of Minnesota - Minneapolis
____________

Submitted: April 11, 2016
Filed: August 5, 2016
____________

Before LOKEN, BEAM, and SMITH, Circuit Judges.
____________

SMITH, Circuit Judge.

Denise Blomker appeals the district court's1 dismissal under Federal Rule of
Civil Procedure 12(b) of her pro se complaint alleging a sexual harassment claim

1
The Honorable John R. Tunheim, Chief Judge, United States District Court for
the District of Minnesota.
based on hostile work environment and a retaliation claim against her employer, the
Department of the Interior ("Department"). We affirm.

I. Background
We accept as true the factual allegations in Blomker's pro se complaint at this
stage of the proceedings. See Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 591 (8th
Cir. 2009).

Blomker worked for more than four years at the Department as a secretary in
the Migratory Birds Division of the U.S. Fish and Wildlife Service. The Department
informed Blomker of its intent to terminate her on April 10, 2014. According to the
Department's letter, Blomker's termination was based on Blomker (1) calling her
supervisor "a god-d***ed f***ing liar" and grabbing a supervisor's arm and twisting
it, (2) stating that she would send copies of e-mails in her possession to the Equal
Employment Opportunity Commission (EEOC) and the court, and (3) copying
unnecessary people on e-mails after repeated warnings to cease doing so. Blomker
was terminated on May 8, 2014.

Blomker filed a pro se complaint against the Department, alleging, inter alia,
a sexual harassment claim based on hostile work environment and a retaliation claim
against the Department.2 In support of her sexual harassment claim based on hostile
work environment, Blomker alleges seven incidents of harassment by two different
men over a nearly three-year period. They are as follows:

2
Blomker indicated in her complaint that she was alleging discrimination based
on six different protected classes, retaliation, and sexual harassment. The district
court construed her complaint as stating three causes of action: disability
discrimination, sexual harassment, and retaliation. Only the sexual harassment and
retaliation claims are at issue in this appeal.

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(1) On February 24, 2010, Blomker's coworker, Tom Will, "moved his
finger toward [a] button [on Blomker's shirt] and stopped approximately
three inches from putting his finger between [her] breasts." Will then
said, with "a smirk on his lips," "I can put a button right there."

(2) On September 9, 2010, Will called out Blomker's name. "As he came
toward [Blomker,] [she] noticed he was sexually aroused (having an
erection)." With "a smirk on his face," Will "walked up and stood
extremely close to [Blomker] that [she] stepped back from him."

(3) "On several occasions" during February and March 2010, Will, with "a
smirk on his face," (a) "walked over to the candy basket on the window
sill, picked it up, swung the candy basket[,] and then . . . picked up the
candy that had fallen onto the floor and put it back into the candy
basket"; and (b) "[d]ug into the plastic container of candy, moving the
candy about and making extra noise while he was playing with the
candy." Blomker believed that Will engaged in this conduct to get her
attention.

(4) On December 7, 2010, Will "walked up behind [Blomker] and stood
extremely close." According to Blomker, had she "back[ed] up a couple
of inches, [she] would have bumped into [Will]."

(5) On April 14, 2011, Will was on his cell phone outside of Blomker's
cubicle and briefly blocked her from exiting her cubicle.

(6) On both November 19 2012, and December 6, 2012, Blomker's
coworker, Richard Rottman, who sat in the cubicle adjacent to Blomker,
"was picking at the seam located in the crotch of his pants—his legs
spread apart 180 degrees while [Blomker] was having a conversation
with him."

(7) On January 10, 2013, Rottman had an erection while speaking to
Blomker.

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Blomker characterizes these incidents as "attacks" and "solicitations." She alleges that
management at the Department "turned their [sic] backs on me, refused twice
accommodations to help alleviate my visual and physical contact with the two
perpetrators. I believe this to be a result of the EEO complaints I have made and
subsequent filing with the District Court."

With regard to her retaliation claim, Blomker cites several situations that she
alleges constitute retaliation based on her reporting discrimination. The district court
accurately summarized these situations as follows:

1) her work performance or work attendance was criticized and she feels
that she has been unnecessarily blamed and criticized at work (see, e.g.,
[Complaint] ¶¶ 18–20, 22–26, 29, 30, 32, 37–42, 44A, 44C–D, 45–50,
53, 54, 59, 61, 65, 66, 68, 70–72, 75, 78–82, 84, 85, 87, 89);

2) she was not kept up-to-date on office news or invited to office events
(see, e.g., id. ¶¶ 19, 34, 55–57, 59, 60);

3) there was poor communication between her and her coworkers and
supervisors (see, e.g., id. ¶¶ 18, 19, 24, 34, 41, 44D, 52, 54, 63, 67, 83);

4) people were talking about her EEO complaints (see, e.g., id. ¶¶ 28,
58, 73);

5) her coworkers sometimes did her job, especially when she was away
from the office (see, e.g., id. ¶¶ 44D, 44E, 44G, 56, 62, 63, 83, 88);

6) she had antagonistic relationships with her bosses (see, e.g., id. ¶¶ 19,
23, 27, 29, 44B, 44D, 53, 54, 67–69, 75, 77, 78, 83, 91);

7) she did not receive a raise and was not permitted to take classes (see,
e.g., id. ¶¶ 32, 33, 35, 76, 77); and

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 8) she was suspended and ultimately terminated (see, e.g., id. ¶¶ 74, 93).

(Footnote omitted.)

The Department filed a Rule 12(b) motion to dismiss Blomker's complaint on
the basis that Blomker failed to adequately exhaust her administrative remedies. It
also argued that she could not state a claim for discrimination or retaliation. The
district court expressly declined to decide the exhaustion issue, finding only that
Blomker could not state a claim for discrimination or retaliation. Blomker appeals.

II. Discussion
Blomker argues that the district court erred in dismissing her sexual harassment
and retaliation claims because she has set forth sufficient allegations to support both
claims. We review de novo a district court's dismissal of a complaint based upon Rule
12(b)(6), "taking the facts alleged in the complaint as true." Bradley Timberland Res.
v. Bradley Lumber Co., 712 F.3d 401, 406 (8th Cir. 2013) (citation omitted).

"To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to 'state a claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A plaintiff's claim is facially plausible where "the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556).
"The plausibility standard . . . asks for more than a sheer possibility that a defendant
has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556).

"In Swierkiewicz v. Sorema, 534 U.S. 506, 122 S. Ct. 992, 152 L. Ed. 2d 1
(2002), the Supreme Court negated any need to plead a prima facie case in the
discrimination context and emphasized that the prima facie model is an evidentiary,

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not a pleading, standard." Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 53 (1st
Cir. 2013) (citing Swierkiewicz, 534 U.S. at 510, 512). Under Swierkiewicz, "[i]t is
not necessary to plead facts sufficient to establish a prima facie case at the pleading
stage." Id. at 54 (citing Swierkiewicz, 534 U.S. at 512). "The prima facie standard is
an evidentiary standard, not a pleading standard, and there is no need to set forth a
detailed evidentiary proffer in a complaint." Id.

However, "elements of the prima facie case are [not] irrelevant to a plausibility
determination in a discrimination suit." Id. Instead, such "elements are part of the
background against which a plausibility determination should be made." Id. (citations
omitted). In summary, "the elements of a prima facie case may be used as a prism to
shed light upon the plausibility of the claim." Id. As we have previously explained:

[A] plaintiff must assert facts that affirmatively and plausibly suggest
that the pleader has the right he claims . . . , rather than facts that are
merely consistent with such a right. While a plaintiff need not set forth
detailed factual allegations or specific facts that describe the evidence
to be presented, the complaint must include sufficient factual allegations
to provide the grounds on which the claim rests. A district court,
therefore, is not required to divine the litigant's intent and create claims
that are not clearly raised, and it need not conjure up unpled allegations
to save a complaint.

Gregory v. Dillard's, Inc., 565 F.3d 464, 473 (8th Cir. 2009) (en banc) (alteration in
original) (emphasis added) (quotations and citations omitted).

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 Does Blomker's complaint set forth sufficient factual allegations to provide the
grounds upon which her sexual harassment claim based on hostile work environment
and retaliation claim rest? We conclude that it does not.3

A. Sexual Harassment Claim Based on Hostile Work Environment
To establish the elements of a sexual harassment claim based on a hostile
environment, a plaintiff must show that: (1) she belongs to a protected group; (2) she
was subject to unwelcome sexual harassment; (3) the harassment was based on sex;
(4) the harassment affected a term, condition, or privilege of employment; and (5) the
employer knew or should have known of the harassment and failed to take proper
remedial action. Schmedding v. Tnemec Co., 187 F.3d 862, 864 (8th Cir. 1999).

"The fourth element involves both objective and subjective components."
Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 801 (8th Cir. 2009) (citation
omitted). It requires that "[t]he harassment . . . be 'severe or pervasive enough to
create an objectively hostile or abusive work environment' and the victim must
subjectively believe her working conditions have been altered." Id. (quoting Harris
v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).

"The Supreme Court has cautioned courts to be alert for workplace behavior
that does not rise to the level of actionable harassment." Al-Zubaidy v. TEK Indus.,
Inc., 406 F.3d 1030, 1038 (8th Cir. 2005). For that reason,

[t]he 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,

3
Because we conclude that Blomker failed to state a claim for sexual
harassment or retaliation, we need not address the exhaustion issue.

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 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 [v. Mesabi Acad. of KidsPeace,
Inc.], 484 F.3d [546,] 551 [(8th Cir. 2007)].

Alvarez v. Des Moines Bolt Supply, Inc., 626 F.3d 410, 420 (8th Cir. 2010).

"More than a few isolated incidents are required," and the alleged harassment
must be "so intimidating, offensive, or hostile that it poisoned the work environment."
Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 967 (8th Cir. 1999) (quotation and citations
omitted). "The [Supreme] Court often has made the point that simple teasing, offhand
comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the terms and conditions of employment." Al-Zubaidy, 406
F.3d at 1039 (quotations and citations omitted). In fact, the Supreme "Court implores
lower courts to apply the demanding harassment standards to filter out complaints
attacking the ordinary tribulations of the workplace, such as the sporadic use of
abusive language, gender-related jokes, and occasional teasing." Id. (emphasis added)
(quotations and citation omitted).

Accepting as true the factual allegations contained in Blomker's complaint and
granting her the benefit of all reasonable inferences that can be drawn from those
allegations, see Lustgraaf v. Behrens, 619 F.3d 867, 872–73 (8th Cir. 2010), we find,
as a matter of law, that the facts alleged in Blomker's complaint fail to show
harassment so severe or pervasive that they satisfy the high threshold for a sexual
harassment claim based on hostile work environment. In other words, we find that

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Blomker has failed to set forth "sufficient factual allegations" that entitle her to relief.
See Gregory, 565 F.3d at 473.4

4
Both our sister circuits and district courts within this circuit have similarly
dismissed hostile work environment claims, some based on sexual harassment, for
failure to state a claim under Rule 12(b)(6). See, e.g., Littlejohn v. City of New York,
795 F.3d 297 (2d Cir. 2015) (holding that allegations that African-American
employee's supervisor at city agency made negative statements about employee to
another supervisor, distanced herself from employee when she was nearby, declined
to meet with employee, and wrongfully reprimanded employee were insufficient to
allege racial discrimination that was so severe or pervasive that it created an abusive
work environment and altered conditions of her employment, as required to establish
a hostile work environment); Pittman v. Bob, 520 F. App'x 101, 102 (3d Cir. 2013)
(unpublished per curiam) (holding that allegations that foreman for employment
agency's client, who was allegedly homosexual, asked employee if he was alright as
employee was going on break, that foreman stood in an "uncomfortable" proximity
to employee while performing job, and that, after summoning other workers to help
employee with task, foreman placed his hands on employee's shoulders and said
"You're lucky I like you," and "I like you because you're so big," did not state claim
for hostile work environment, where conduct was not so severe or pervasive as to
alter terms of employment or create abusive environment); Wadhwa v. Sec'y, Dep't
of Veterans Affairs, 505 F. App'x 209, 213 (3d Cir. 2012) (unpublished per curiam)
(holding that a single complaint made by nurse about performance of federal
employee over period of five months was insufficient to constitute pervasive and
regular behavior required to sustain Title VII hostile work environment claim); Ruddy
v. U.S. Postal Serv., 455 F. App'x 279, 284 (3d Cir. 2011) (unpublished) (holding that
United States Postal Service employee's supervisors' alleged conduct in telling
employee that he was to work faster and leave the office earlier did not amount to a
hostile work environment based on employee's age and disability because such
conduct was not severe or pervasive); Griffey v. Daviess/DeKalb Cty. Reg'l Jail, No.
10-06099-CV-SJ-DGK, 2012 WL 10881, at *5 (W.D. Mo. Jan. 3, 2012) (holding that
plaintiff failed to state a claim for hostile work environment because the plaintiff did
not "establish[] that the harassment was so severe and pervasive to be legally
actionable under both an objective and subjective standard"); Sullivan-Robinson v.
Ark. Parole Bd., No. 4:11CV00140 SWW, 2011 WL 3235904, at *4 (E.D. Ark. July
28, 2011) ("Here, plaintiff alleges Wallace made inappropriate statements to her three

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 As the district court noted, although the behavior alleged "might have been vile
or inappropriate, the facts alleged in the complaint do not rise to the level of
actionable sexual harassment." As noted supra, the seven alleged incidents spanned
nearly a three-year period by two different men. See Duncan v. Gen. Motors Corp.,
300 F.3d 928, 934–35 (8th Cir. 2002) (reversing a million dollar judgment awarded
to a plaintiff and determining, as a matter of law, that plaintiff failed to show severe
or pervasive sexual harassment based on five harassing incidents over a two-year
period: a proposition for a relationship; improper touching of the plaintiff's hand on
multiple occasions; a request the plaintiff sketch a sexually objectionable planter; the
posting of a "Man Hater's Club" poster; and a request the plaintiff "type the He–Men
Women Haters beliefs").

Furthermore, none of the alleged incidents involved actual touching. And some
of the allegations, such as Will playing with candy, are not definitively sexual in
nature based on the facts alleged. "Numerous cases have rejected hostile work
environment claims premised upon facts equally or more egregious than the conduct
at issue here." Id. (citations omitted); see also McMiller v. Metro, 738 F.3d 185, 188
(8th Cir. 2013) (holding that male supervisor's inappropriate behavior toward female
state employee was not sufficiently severe or pervasive so as to alter terms and
conditions of her employment where supervisor kissed employee on two occasions,
placed his arms around her or attempted to do so three times, and requested that she
remove an ingrown hair near his chin); Anderson v. Family Dollar Stores of Ark.,

times over a two-week period. She also alleges that at a later date she overheard two
additional offensive comments Wallace made to another employee. The Court finds
as a matter of law that these allegations, while establishing conduct that was
offensive, unprofessional, and boorish, fail to state a claim of hostile environment
sexual harassment.").

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Inc., 579 F.3d 858, 862 (8th Cir. 2009) (holding evidence insufficient to establish a
hostile work environment claim where supervisor rubbed employee's back and
shoulders, called her "baby doll," "accus[ed] her of not wanting to be 'one of [his]
girls,'" suggested in a long-distance phone call "that she should be in bed with him,"
and "insinuat[ed] that she could go farther in the company if she got along with
him"); LeGrand v. Area Res. for Cmty. & Human Servs., 394 F.3d 1098, 1100–03
(8th Cir. 2005) (holding that a plaintiff who asserted that a harasser asked him to
watch pornographic movies and to masturbate together, suggested that the plaintiff
would advance professionally if the plaintiff caused the harasser to orgasm, kissed the
plaintiff on the mouth, "grabbed" the plaintiff's buttocks, "brush[ed]" the plaintiff's
groin, "reached for" the plaintiff's genitals, and "briefly gripped" the plaintiff's thigh,
had not established actionable harassment); Ottman v. City of Independence, 341 F.3d
751, 760 (8th Cir. 2003) (concluding the district court erred in finding a triable issue
for the jury where the conduct consisted of belittling and sexist remarks on almost a
daily basis over a four-year period); Alagna, 324 F.3d at 977–79, 980 (concluding the
coworker's conduct was inappropriate, but not sufficiently severe or pervasive where
it included calls to the plaintiff's home, frequent visits to her office, discussions about
relationships (not including sexual details) with his wife and other women, touching
the plaintiff's arm, saying he "loved" her and she was "very special," placing romance
novels in her faculty mailbox, and invading her personal space).

For these reasons, we affirm the district court's dismissal of Blomker's claim
of hostile work environment based on sexual harassment.

B. Retaliation
We now turn to Blomker's retaliation claim. Title VII makes it an unlawful
employment practice for an employer to discriminate against its employees for
opposing any unlawful employment practice. 42 U.S.C. § 2000e–3(a); see also
Guimaraes v. SuperValu, Inc., 674 F.3d 962, 977 (8th Cir. 2012). We apply the

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retaliation provisions of § 2000e–3(a) broadly to cover opposition to employment
actions that are not unlawful, as long as the employee acted with a good faith,
objectively reasonable belief that the practices were unlawful. Guimaraes, 674 F.3d
at 977–78.

"[R]etaliation must be the 'but for' cause of the adverse employment action."
Jackman v. Fifth Judicial Dist. Dep't of Corr. Servs., 728 F.3d 800, 804 (8th Cir.
2013) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013)
("The text, structure, and history of Title VII demonstrate that a plaintiff making a
retaliation claim under § 2000–3(a) must establish that his or her protected activity
was a but-for cause of the alleged adverse action by the employer.")).

Unlike Title VII discrimination claims, however, for an adverse
retaliatory action to be "because" a plaintiff made a charge, the plaintiff
must plausibly allege that the retaliation was a "but-for" cause of the
employer's adverse action. See [Nassar, 133 S. Ct. at 2533]. It is not
enough that retaliation was a "substantial" or "motivating" factor in the
employer's decision. See id.

Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90–91 (2d Cir. 2015)
(emphasis added).

Here, Blomker points to four "specifications" from the Department's letter of
removal—which she attached as an exhibit to her complaint—that she argues
constitute direct evidence of retaliation, establishing a causal nexus between her
protected activity and the materially adverse actions alleged in her complaint. Two
of the these specifications mention her intent to file an EEO complaint.

Nonetheless, we find that Blomker's purported "direct evidence" of retaliation
fails as a matter of law for lack of causation. Blomker has failed to "plausibly allege

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that the retaliation was a 'but-for' cause of [the Department's] adverse action." See id.
This is because Blomker attached to her complaint the Department's letter of removal,
which sets forth her reasons for termination. As the Department points out, while the
aforementioned "specifications" in the letter of removal "demonstrate[] . . . that her
threats [to file an EEO complaint and lawsuit] may have motivated the Department
(at least in part) to discharge her," that letter also includes other "specifications"
unrelated to any protected activity. These "specifications" include: (1) calling her
supervisor a "god-d***ed f***ing liar" and grabbing and twisting her forearm, and
(2) not complying with her supervisor's directive to stop copying people beyond the
scope of a discussion with her supervisor. In the "Reason for Proposing Removal" in
the letter of removal, the Department characterized the nature of Blomker's
misconduct as "serious," focusing exclusively on her assault upon her supervisor. The
letter provides, in relevant part:

Under no circumstance should an employee engage in unwelcome
physical contact with a supervisor. There is no indication that Ms. Jones
touched you; rather, she had to use her arm/finger to reestablish her
personal space since you were uncomfortably close. Under those
circumstances, you not liking Ms. Jones pointing her finger at you does
not warrant your grabbing her arm and/or twisting it. Further, it is
evident that you and Ms. Jones have a contentious supervisor-employee
relationship, yet it appears you took measures to create that
confrontation on March 25, 2014, by rushing to get in the elevator car
with Ms. Jones. Such aggressive behavior on your part is contrary to
statements you have made recently regarding your fear of being in
meetings with your supervisor or other Division or Service staff without
the presence of a police officer or security guard. Video footage from
the lobby of the Regional Office clearly showed how quickly you moved
to put yourself in a confined space (elevator) with your supervisor,
strongly suggesting you wanted the confrontation. Ms. Jones was
distraught and intimidated after the incident. The incident was disruptive
to the workplace, resulting in shouting and yelling heard by a number of
employees within the work area, a work area that included the elevator

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 lobby (a public area), your cubicle, and the connecting hallways (a
minimum of at least 75 feet past multiple offices and a conference room.
Due to the seriousness of that incident, immediately thereafter you were
placed and have remained on administrative leave.

(Emphases added.) The letter also cited Blomker's past disciplinary record: a letter
of reprimand on March 21, 2013, for inappropriate conduct5 and a seven-day
suspension from February 2, 2014, through February 8, 2014, for inappropriate
conduct and failure to follow a supervisory directive.6

Blomker's inclusion of the letter of removal in her complaint shows, on its face,
that Blomker's protected activity was not a but-for cause of the alleged adverse action
by the Department. We therefore affirm the district court's dismissal of Blomker's
retaliation claim.

5
Specifically, Blomker was reprimanded for "raising [her] voice to [her]
supervisor, ignoring and walking away from [her] supervisor during a conversation,
and raising [her] voice in a discourteous and disrespectful manner in the open
workplace."
6
This suspension was based, in part, on Blomker's

failure to follow a supervisory directive related to when [she] again
copied Mr. Wooley and Mr. Melius on an email to employees with the
Federal Executive Board (FEB) of Minnesota notifying them you would
be resigning from the FEB Diversity Council after being ordered on
December 23, 2013, to cease and desist copying people on emails
beyond the scope of a discussion unless they specifically asked to be
copied.

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 III. Conclusion
Accordingly, we affirm the judgment of the district court.

BEAM, Circuit Judge, dissenting.

The Department of the Interior has litigated Blomker's sexual harassment and
retaliation action as though it was being decided on a motion for summary judgment
rather than based upon the Rule 12(b) dismissal motion before the court. The district
court continued this course of action, and in my view, improvidently dismissed the
case. Accordingly, I respectfully dissent.

We review de novo a district court's dismissal of a complaint based upon Rule
12(b)(6), granting all reasonable inferences in favor of the nonmoving party. Bradley
Timberland Res. v. Bradley Lumber Co., 712 F.3d 401, 406 (8th Cir. 2013). To
establish the elements of a sexual harassment claim based on a hostile environment,
a plaintiff must show that: (1) she belongs to a protected group; (2) she was subject
to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the
harassment affected a term, condition, or privilege of employment; and (5) the
employer knew or should have known of the harassment and failed to take proper
remedial action. Schmedding v. Tnemec Co., 187 F.3d 862, 864 (8th Cir. 1999).
Furthermore, Title VII makes it an unlawful employment practice for an employer to
discriminate against its employees for opposing any unlawful employment practice.
42 U.S.C. § 2000e-3(a); Guimaraes v. SuperValu, Inc., 674 F.3d 962, 977 (8th Cir.
2012). We apply the retaliation provisions of § 2000e-3(a) broadly to cover
opposition to employment actions that are not unlawful, as long as the employee
acted with a good faith, objectively reasonable belief that the practices were unlawful.
Guimaraes, 674 F.3d at 977-78.

At this stage of the proceedings, Blomker has satisfied her burden to plausibly
plead hostile environment sexual harassment and retaliation. Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009) (standard). Blomker plausibly alleges that she was subject to
unwelcome sexual advances and other harassing conduct by the offending coworkers.
These allegations are sufficient at the motion-to-dismiss level. In its briefing, the
Department cites us no sexual harassment cases that were dismissed at the Rule
12(b)(6) stage, and the court's citation to a few mostly unpublished opinions from our
"sister" circuits and district courts does not convince me that Rule 12(b) dismissal
was appropriate in this particular case. And the suggestion that dismissal is
appropriate because none of the incidents involve "actual touching" or conduct
"definitively sexual in nature," ante at 10, is both legally unsupportable and sets a
dangerous precedent for sexual harassment plaintiffs. See, e.g., Tang v. Citizens
Bank, N.A., 821 F.3d 206, 216-17 (1st Cir. 2016) (noting that sexually harassing
conduct need not involve physical touching or conduct that is overtly sexual in
nature);7 Hall v. Gus Constr. Co., 842 F.2d 1010, 1014 (8th Cir. 1988) (seminal case
from our circuit setting forth the standard that conduct need not be "sexual in nature"
in order to support a sexual harassment claim).

With regard to retaliation, Blomker clearly engaged in protected activity by
filing EEO complaints within her department and by filing this action. She was
denied a pay raise, suspended, and ultimately terminated within months of filing this
action in federal court. The district court found that she did not state a claim because
she could not establish causation. This was a premature determination on a Rule
12(b)(6) motion. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 91-92

7
Tang is particularly instructive as it involved a plaintiff who was initially pro
se, but is now represented by counsel, and involved four incidents that spanned the
course of just over one year. 821 F.3d at 211-214. The court found that it could
parse out the offending conduct (discussions of the word "ass" and Thai au pairs) and
find it to be harmless in isolation, but at the summary judgment stage, this was not the
appropriate analysis. Id. at 216. Importantly, the court pointed out that "Title VII
requires no magic words to convert a verbal exchange into the stuff of sexual
harassment." Id.

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(2d Cir. 2015) (noting that plaintiff adequately and plausibly pleaded retaliation
claims under Title VII when, soon after filing a charge of racial discrimination, his
work duties changed, the district stopped communicating with him, and his pay was
temporarily reduced); Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 24-
25 (1st Cir. 2014) (reversing the Rule 12(b)(6) dismissal of a retaliation claim
because the plaintiff had plausibly alleged causation); see also Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 512 (2002) (holding that the employment discrimination
prima facie case is "a flexible evidentiary standard" not a "rigid pleading standard").

As an alternative ground, the Department argues that Blomker has not properly
exhausted her claims. In order for a federal employee to sue for discrimination under
Title VII, the employee must initiate contact with an agency EEO counselor "within
45 days of the date of the matter alleged to be discriminatory." 29 C.F.R. §
1614.105(a)(1); see West v. Gibson, 527 U.S. 212, 218-19 (1999) (holding that for
federal employees, Title VII is "a dispute resolution system that requires a
complaining party to pursue administrative relief prior to court action, thereby
encouraging quicker, less formal, and less expensive resolution of disputes within the
Federal Government and outside of court"). Furthermore, a federal employee must
wait until resolution of the EEO claim within the agency, or wait until the claim has
been pending and unresolved for 180 days, before filing suit in court. 42 U.S.C. §
2000e-16(c).

However, failure to exhaust is an affirmative defense which must be proved
by the defendant. Miles v. Bellfontaine Habilitation Ctr., 481 F.3d 1106, 1107 (8th
Cir. 2007) (per curiam) (holding that because the plaintiff stated in her form pro se
complaint that she filed a charge with the EEOC and attached her right-to-sue letter,
the district court improperly dismissed the complaint for failure to exhaust). In her
complaint, Blomker alleges that she has filed numerous EEO complaints, and that she
has requested a copy of her right-to-sue letter but has not yet received it. Generally

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attaching the right-to-sue letter is a precondition to filing suit, but it is one that may
be remedied after suit has been filed. Jones v. Am. State Bank, 857 F.2d 494, 499-
500 (8th Cir. 1988) (holding that receipt of a right-to-sue letter is a condition
precedent to filing, but curable after the action had been commenced). Because the
exhaustion issue was not decided by the district court and is unclear from the sparse
record before us, I would reverse and remand so that the parties may litigate whether
Blomker has exhausted her administrative remedies under the rubric set forth for
federal agency employees. If she has, I believe Blomker should be allowed to litigate
her Title VII harassment and retaliation claims.8

______________________________

8
My review of the record indicates that the district court correctly dismissed
Blomker's disability discrimination claim. Blomker's allegations with regard to an
alleged disability are sparse and lack plausibility. Nor does Blomker press the
disability claim in her briefing.

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