Marcia A. Hocevar v. Purdue Frederick Company Timothy Amundsen

LAY, Circuit Judge

dissenting.

I dissent from the grant of summary judgment on the hostile work environment claim.

Title YII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Title VII protects “more than ‘terms’ and ‘conditions’ in the narrow contractual sense.” Faragher v. City of Boca Raton, 524 U.S. 775, 786, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)) (internal quotation omitted). The Act evinces Congress’ intention to define discrimination in the broadest possible terms, and neither enumerates specific discriminatory practices nor defines the breadth of actionable illegal activities. See Hall v. Gus Constr. Co., 842 F.2d 1010, 1014 (8th Cir.1988). In interpreting the scope of activities prohibited under Title VII, the Supreme Court instructs that hostile work environment harassment occurs when “the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, *757126 L.Ed.2d 295 (1993) (citations omitted and emphasis added).

In a sexual harassment suit, in order to establish a claim of hostile work environment, a plaintiff must show (1) membership in a protected group; (2) the occurrence of unwelcome harassment; (3) a causal nexus between the harassment and membership in the protected group; and (4) that the harassment affected a term, condition or privilege of employment. See Carter v. Chrysler Corp., 173 F.3d 693, 700 (8th Cir.1999). If the harassment is perpetrated by a supervisor and the employee suffers a tangible employment action (e.g., demotion, undesirable reassignment, or discharge), the employer is vicariously liable for the supervisor’s sexual harassment of the employee. See Faragher, 524 U.S. at 807-08, 118 S.Ct. 2275; Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Important to my analysis is the Supreme Court’s recent statement that sexually harassing behavior perpetrated by a supervisor has a “greater power to alter the environment” than similar actions of mere co-workers. Faragher, 524 U.S. at 805, 118 S.Ct. 2275.

The inquiry at summary judgment is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). As I previously indicated, in considering a motion for summary judgment, the district court should not weigh the evidence, make credibility determinations, or attempt to determine the truth of the matter, id. at 249, 106 S.Ct. 2505, but instead should give all reasonable inferences to the non-moving party. Id. at 255, 106 S.Ct. 2505. To survive summary judgment, Hocevar need only submit ‘“sufficient evidence supporting a material factual dispute that would require resolution by a trier of fact.’ ” Austin v. Minnesota Mining & Mfg. Co., 193 F.3d 992, 994 (8th Cir.1999), (quoting Hase v. Missouri Div. of Employment Sec., 972 F.2d 893, 895 (8th Cir.1992)). Summary judgment is inappropriate where “reasonable minds could differ as to the import of the evidence.” Anderson, 477 U.S. at 250, 106 S.Ct. 2505. It is under this framework that we should review the district court’s grant of summary judgment to Purdue on Hocevar’s claims of hostile work environment.15

Hocevar asserts that during her tenure at Purdue, she endured a constant litany of vulgar and inappropriate behavior. As previously set forth, the behavior was perpetrated in large part by Amundsen, her direct supervisor, and, in small part, by two other Purdue managers.

As the district court found, there is no dispute that Hocevar, a female, is a member of a protected group. See Carter, 173 F.3d at 700 (female plaintiff member of protected group). Our inquiry, therefore, should turn to the second element of a hostile work environment claim: whether she was subject to unwelcome harassment. Conduct is “unwelcome” where it is “uninvited and offensive.” Bales v. Wal-Mart Stores, Inc., 143 F.3d 1103, 1108 (8th Cir.1998); see Moylan v. Maries County, 792 F.2d 746, 749 (8th Cir.1986) (conduct is unwelcome where employee neither solicited it nor invited it, and regarded it as undesirable or offensive).

*758That the conduct in question is unwelcome is “[t]he gravamen of any sexual harassment claim.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). In determining whether conduct is “unwelcome,” we should consider whether the plaintiff indicated, by her conduct, that the alleged harassment was unwelcome. Quick v.. Donaldson Co., 90 F.3d 1372, 1378 (8th Cir.1996) (citing Meritor, 477 U.S. at 68, 106 S.Ct. 2399). This is a fact question for the jury and turns largely on credibility determinations. See Meritor, 477 U.S. at 68, 106 S.Ct. 2399 (question of whether conduct is unwelcome presents difficult proof problems turning largely on credibility determinations committed to trier of fact); see also Quick, 90 F.3d at 1378.

The district court focused its inquiry on whether the incidents of harassment were “offensive” and concluded that they failed to constitute an offensive environment due to their infrequent use.16 Under review of the record, I find sufficient evidence and inference therefrom that there was an ongoing use of sexual vulgarity directed at the plaintiff as well as all women employees in general. Based on the evidence set forth below, the plaintiff has certainly met the threshold of proof of pervasiveness as a matter of law. The ultimate determination as to whether the harassment was pervasive must be made by the jury.17

The record in the present case shows Amundsen’s use of sexual vulgarity occurred throughout the workplace, on sales calls and during meetings. Hocevar’s female co-worker, Kiekhaefer, indicates Amundsen repeatedly referred to women as “bitches,” used the “F” word in virtually every other sentence, called clients “fuckers” and “assholes,” and routinely referred to female nurses and female physicians as “fucking bitches.” Similar testimony is in the record from another female employee of Amundsen’s, Mary Beck-Johnson, indicating Amundsen “routinely” used the terms “bitch” and “fuck” in meetings. Further, Hocevar testified that sexually explicit behavior occurred at meetings chaired by Amundsen, which Amundsen either condoned or failed to stop, and that sexually suggestive comments were made by two Purdue managers, one of whom subjected Hocevar to unwelcome physical contact during a consensual dance, which made Hocevar “extremely uncomfortable.” Under the record presented, these vulgar attacks cannot be simply regarded as “offhand” or isolated incidents.

The defendant, as does Judge Beam, relies on the fact that Hocevar herself had used the words “bitch” and “fuck” on occasion in the workplace. On this basis, it is *759argued that the words are not unwelcome by Hocevar. Hocevar, however, qualifies her use of these words by saying that they were not used in the same context that Amundsen had used them. There is a world of difference between the use of the infrequent swear word in the workplace, not actionable when not directed to a specific gender, and direct words demeaning to women in general. While Hocevar’s infrequent use of foul language may indeed, when presented to a jury, diminish her claim that the behavior of Amundsen and others was “unwelcome,” it in no way bars her claim as a matter of law, I am unaware of any case that precludes a plaintiff from arguing that the employer’s constant use of sexually charged language and off-color jokes is unwelcome merely because the plaintiff at times engaged in swearing. Such a reading is inconsistent with the mandate that courts consider the totality of the circumstances of a case. Faragher, 524 U.S. at 787, 118 S.Ct. 2275. Further, Judge Beam’s analysis utterly fails to address Amundsen’s threats of violence, his dissemination of sexually explicit material at meetings, his condonation of sexually graphic behavior at meetings, and the behavior of other Purdue managers, all apparently because Hocevar admitted to the infrequent use of foul language. The record further shows that Hocevar’s swearing was not directed as a demeaning word of harassment at any person or group of people. It is one thing that an employee use vulgarity in his or her general communication; it is quite another when the vulgarity is directed at a specific social group who reasonably could find it to be demeaning to their own self-being.

Even if one concedes that use of foul language by an employee can diminish a claim that the harassment was unwelcome and subjectively offensive, evidence of Hocevar s reaction could still support a finding that Amundsen’s behavior was unwelcome. See Burns v. McGregor Elec. Indus., Inc., 989 F.2d 959, 964 (8th Cir.1993) (agreeing with district court that plaintiff having posed nude for a nationally distributed magazine does not lead inevitably to conclusion that workplace harassment was welcome); Bales, 143 F.3d at 1108-09 (plaintiffs reaction to harassment sufficient to support jury finding that behavior was unwelcome); see also Caviness v. Nucor-Yamato Steel Co., 105 F.3d 1216, 1223 (8th Cir.1997) (“[I]t stretches credulity to conceive that a reasonable jury might have thought [plaintiffs] welcomed from their co-workers the conduct detailed in the evidence at trial.”).

Hocevar testified that she suffered fear, depression, anxiety and self-doubt as -a result of Amundsen’s behavior, including his degrading and demeaning criticism of her work performance. If she was not offended by this, as I think any reasonable person would be, it is difficult to explain that both she and her co-worker were under the continuing care of a psychologist and that Hocevar was treated with Prozac for anxiety and depression. Hocevar’s complaint to Purdue manager Dennis Mer-lo is also “reaction” evidence revealing that Hocevar viewed Amundsen’s sexually derogatory language unwelcome. Further, the record contains evidence that Hocevar, Kiekhaefer, and a third female co-worker were “scared” and upset to the point of tears following the incident surrounding the discussion of Susan Faludi’s book Backlash: The Undeclared War Against American Women. Giving her the benefit of all favorable inferences, this conduct could be found by a jury to support a finding that the harassment was unwelcome and that it was subjectively offensive.18 Precedent supports such a finding. *760See Harris, 510 U.S. at 22, 114 S.Ct. 367 (recognizing that Title VII bars discriminatory conduct that affects a reasonable person’s psychological well-being); Kopp v. Samaritan Health Sys., Inc., 13 F.3d 264, 269 (8th Cir.1993) (psychological harm is a relevant factor in hostile work environment analysis); cf. Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1304 (8th Cir.1997) (recognizing that a callous pattern and practice of degrading sexual harassment in the workplace can destroy self-esteem of women exposed to it).

The third element of a claim of hostile work environment requires evidence of a causal nexus between the harassment suffered and Hocevar’s membership in a protected group. See Carter, 173 F.3d at 700. At the summary judgment stage, a plaintiff may prove harassment is “based on sex” by presenting evidence that members of one sex were the primary targets of harassment. Quick, 90 F.3d at 1378 (evidence that members of one sex were primary targets of harassment sufficient to show conduct was gender based for purposes of summary judgment) (quoting Kopp, 13 F.3d at 269-70). Whether harassing conduct is based on sex is determined by inquiring “whether ‘members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’ ” Quick, 90 F.3d at 1379 (quoting Harris, 510 U.S. at 25, 114 S.Ct. 367) (Ginsburg, J., concurring).

This court has recently reaffirmed that gender-based insults, such as the term “bitch,” may give rise to an inference of discrimination based on sex, see Carter, 173 F.3d at 700, and has rejected the notion that an employee must be propositioned, touched offensively, or harassed by sexual innuendo in order to have been sexually harassed. See Quick, 90 F.3d at 1379 (citing Burns, 989 F.2d at 964). Additionally, we have held that intimidation and hostility toward women in general can result from conduct other than explicit sexual advances.19 See Hall, 842 F.2d at 1014. Moreover, it is well settled that verbal abuse, violence, or physical aggression may constitute sexual harassment, see Quick, 90 F.3d at 1379 (citing Burns, 989 F.2d at 964-65), and that such need not be explicitly sexual in nature. See Carter, 173 F.3d at 700-01 (“All instances of harassment need not be stamped with signs of overt discrimination to be relevant under Title VII if they are part of a course of conduct which is tied to evidence of discriminatory animus.”); see also, Williams v. General Motors Corp., 187 F.3d 553, 565-66 (6th Cir.1999) (gender-specific epithets such as “slut” and “fucking women” can support an inference that the comments were motivated by gender).

On the question of causal nexus, the district court essentially reasoned that because the offensive behavior occurred in front of both men and women and was not specifically directed at Hocevar, it failed to evidence the harasser’s thoughts toward a particular gender. Similarly, Judge Beam holds that because Amundsen indiscriminately used the crude adjective “fucking” when referring to both men and women, the term somehow loses its sexual connotation and cannot be used to show the language was causally linked to gender. He finds that “[t]his is not a case where Amundsen used the term bitch as a synonym for female-specific characteristics of which he did not approve.” This reasoning is inconsistent with this court’s decision in Kopp where we found sufficient evidence of actionable harassment based on sex to survive summary judgment where women were more frequently exposed to harassment than men, despite *761that abuse was rarely couched in terms of sex or gender and was used in front of both men and women. Kopp, 13 F.3d at 269-70. Judge Beam’s opinion further fails to appreciate the inherently sexual nature of the profane term,20 and also fails to address Amundsen’s chronic characterization of women as “bitches,” “fucking bitches,” and “fat fucking bitches.”

Contrary to Judge Beam’s conclusion,21 Hoeevar presents the hypothetical case we considered in Kriss where a supervisor’s constant use of the word “bitch” was directed only at women. It is apparent that Amundsen used the term “bitch” throughout the workplace in a pejorative manner to describe women who were rude to him or behaved in some way that displeased him.22 This term also has a distinctively negative connotation when used to describe women.23

Giving Hoeevar the benefit of all reasonable inferences, there is little doubt that the extensive use of the gender-specific pejorative “bitch,” coupled with the sexually explicit and offensive term “fuck,” could support a finding that the harassment was based on sex. To hold otherwise is an unprecedented endorsement of the sexually insulting behavior presented. See Bums, 989 F.2d at 965 (vulgar and offensive epithets, including but not limited to “bitch,” are “ ‘widely recognized as not only improper but as intensely degrading, deriving their power to wound not only from their meaning but also from the disgust and violence they express phonetically.’ ”) (citations and internal quotations omitted).

The Supreme Court recently reaffirmed the “severe or pervasive” test articulated in Hams, defining a sexually objectionable environment to mean “one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher, 524 U.S. at 787, 118 S.Ct. 2275; see Ellerth, 524 U.S. at 754, 118 S.Ct. 2257. Once there is evidence of improper conduct and subjective offense, the question of whether the conduct rose to a persuasive level of abuse is largely one for the jury. See Howard v. Burns Bros., Inc., 149 F.3d 835, 840 (8th Cir.1998); see also O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1098 (10th Cir.1999) (“the severity and pervasiveness *762evaluation is particularly unsuited for summary judgment because it is ‘quintessentially a question of fact’ ”) (quoting Beardsley v. Webb, 30 F.3d 524, 530 (4th Cir.1994)).

In determining whether a work environment is sufficiently severe or pervasive to alter the terms or conditions of employment, we must look at the totality of the circumstances, including factors such as “ ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’ ” Faragher, 524 U.S. at 787-88, 118 S.Ct. 2275 (quoting Harris, 510 U.S. at 23, 114 S.Ct. 367). Evidence of psychological harm to the plaintiff is also a relevant factor, Harris, 510 U.S. at 23, 114 S.Ct. 367, as is evidence of harassment of plaintiffs co-workers. See Howard, 149 F.3d at 838 (harassment of plaintiffs coworkers relevant to show pervasiveness of hostile environment).

Under this framework, we should consider the fourth element of a claim of hostile work environment harassment, namely, whether the harassment Hoeevar suffered affected a term, condition or privilege of her employment. This court has held that in the context of Title VII “conditions of employment” may be altered by harassment if the employee is discouraged from remaining on the job, Smith v. St. Louis Univ., 109 F.3d 1261, 1264 (8th Cir.1997), or the harassment caused economic injury, affected the employee’s psychological well-being, detracted from job performance, or kept the employee from advancing in her career. Quick, 90 F.3d at 1378. Title VII is violated when a “workplace is permeated with ‘discriminatory intimidation, ridicule and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,’ ” where if the environment is objectively and subjectively perceived as hostile or abusive. Id. (quoting Harris, 510 U.S. at 21, 114 S.Ct. 367) (emphasis added).

On the question of whether Hoeevar showed sufficient evidence that the harassment was “severe or pervasive” to alter a term or condition of employment, the district court found the alleged incidents were neither sufficiently pervasive nor directed at Hocevar.24 In reaching this conclusion, the district court concluded that playing the Jerky Boys tape was not offensive conduct; that Amundsen’s stories of animal violence are not severe enough to constitute a hostile environment; that Amundsen’s referral to a female doctor as a “fucking bitch” and introduction of a new employee as a “fucking new guy” at most offended the person the comments were directed at, which was not Hoeevar. On this point, Judge Beam recognizes that the use of foul language may have been pervasive. Because he concludes that the offensive language is not based on sex, however, he sets this evidence aside, then proceeds to consider whether the remaining facts of Hocevar’s case are sufficiently severe or pervasive. This approach errs because it fails to consider the totality of the circumstances, see Harris, 510 U.S. at 23, 114 S.Ct. 367 (all evidence concerning abusiveness of a plaintiffs working condition is relevant), and imposes a per se test requiring harassment be “directed at” plaintiff to be actionable. This approach has been rejected by an appellate court in Vinson v. Taylor, 753 F.2d 141, 146 (D.C.Cir.1985), which expressly held that “[e]ven a woman who was never herself the object of harassment might have a Title VII claim if *763she were forced to work in an atmosphere in which such harassment was pervasive.” Id. (emphasis added). The Vinson court reached this conclusion in light of EEOC Decision No. 71-909, 25 Ohio App.2d 141, 267 N.E.2d 814, 3 Fair Empl. Prac. Cas. (BNA) at 269-70 (1971) in which the EEOC found reasonable cause to find a Title VII violation where a white employee was discharged for befriending African American co-workers.25

Title VII provides employees the “right to work in an environment free from discriminatory intimidation, ridicule, and insult.” Meritor, 477 U.S. at 65, 106 S.Ct. 2399 (emphasis added). The EEOC Gkádelines defining sexual harassment do not limit sexual harassment to only those actions that are directed at the plaintiff. See 29 C .F.R. § 1604.11 (1999) (“Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when ... such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”) (emphasis added).

I find no case that dictates, as Judge Beam suggests, that only behavior directed at the plaintiff, such as sexual advances, may support a claim of hostile work environment sexual harassment. Cf. Breeding, 164 F.3d at 1159 (considering supervisor’s fondling of genitals in view of various employees, including plaintiff, and inappropriate comments made in front of men and women); Howard, 149 F.3d at 838 (considering harassment of employees other than plaintiff relevant to show pervasiveness of hostile environment); Kopp, 13 F.3d at 270 (reversing grant of summary judgment where male physician used gender-specific foul language in front of numerous employees, both male and female, only one incident of which was directed at plaintiff); Jenson v. Eveleth Taconite Co., 824 F.Supp. 847 (D.Minn.1993) (class plaintiffs prevailed on hostile work environment claim where much of derogatory and insulting language used by men was directed at women in general). The fact that the bulk of the harassing behavior occurred in Hocevar’s workplace in her presence yet was directed at all women present does not, as a matter of law, preclude a finding of a hostile work environment. This is particularly true where the harassment occurred at the hands of Hocevar’s direct supervisor, in light of the Supreme Court’s recent statement that harassing behavior perpetrated by a supervisor has a “greater power to alter the environment” than similar behavior of mere co-workers. Faragher, 524 U.S. at 805, 118 S.Ct. 2275.

It is inconceivable at the summary judgment stage to suggest that the language used by Timothy Amundsen, Hocevar’s supervisor, coupled with the behavior of two Purdue managers, is insufficient as a matter of law to support a claim of hostile work environment harassment under Title VII. Justice Scalia’s recent observation is appropriate here, “[t]he real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.” Oncale, 523 U.S. at 81-82, 118 S.Ct. 998.

*764I disagree with Judge Beam who perceives this to be a case of isolated or sporadic incidents of “mere offensive utterances” in the workplace. Assuming Hocevar’s allegations as true at this early stage of summary judgment, the record reveals a clear pattern of pervasive offensive behavior tinged with gender animus. Hocevar provides evidence that she was physically afraid of Amundsen, particularly after an incident in which he punched a fellow employee, and that she found his demeaning behavior toward women so humiliating that she sought psychiatric treatment and medication. The allegations, if found true by a jury, are sufficient to permit a finding that the cumulative effect of Amundsen’s conduct, along with that of other Purdue managers, was sufficiently severe or pervasive to create a hostile work environment based on sexual harassment.

I therefore dissent from the affirmance granting summary judgment for hostile work environment in violation of Title VII.

. Under summary judgment, the burden is actually on the moving party to show the absence of a genuine dispute of material fact. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). I think it clear that the employer has not carried that burden.

Consideration of this matter is further guided by the principle that summary judgment should seldom be granted in employment discrimination cases since the claims frequently rely on inferences. See Breeding v. Arthur J. Gallagher and Co., 164 F.3d 1151, 1156 (8th Cir.1999) (citing Lynn v. Deaconess Med. Ctr.-West Campus, 160 F.3d 484, 486-87 (8th Cir.1998)).

. Before the district court, Purdue argued that the court should not consider alleged harassment that occurred prior to July 7, 1995, that is, 300 days prior to Hocevar’s May 2, 1996, complaint to the EEOC. Hocevar argued the court should consider incidents prior to July 7, 1995, under a continuing violation theory, which permits consideration of allegedly discriminatory events outside the 300-day limitations period. See Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1302 (8th Cir.1997). Although not expressly adopting the continuing violation theory, the district court implicitly agreed with Hocevar and considered behavior beginning in August 1994.

. The opinion by Judge Beam takes a different approach, suggesting that Hocevar cannot prove the behavior was unwelcome because she had on occasion used similar language, relying on Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 966 (8th Cir.1999). In Scusa, the hostile work environment plaintiff alleged, among other incidents, one occurrence of foul language used by a co-worker during a meeting discussing her sexual harassment claim. See Scusa, 181 F.3d at 963 n. 3. On the question of whether the plaintiff found the offensive language "unwelcome,” this court observed that the record contained undisputed evidence that the plaintiff herself used the "F" word along with male-specific pejoratives, told off-color jokes at work, and teased coworkers. Id. at 966. This court affirmed the district court's finding that Scusa failed to create a genuine issue of material fact to preclude summary judgment on the question of whether the alleged behavior was unwelcome. In contrast to Scusa, the sexual vulgarities were used not once, but "constantly” by Hocevar's supervisor.

. The Supreme Court directs, that "the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering 'all the circumstances.' ” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). Because Purdue does not appear to suggest that the harassment was not objectively offensive, this issue is not addressed.

. Indeed, Justice Scalia recently pointed out that harassment does not have to be motivated by sexual desire, but can be motivated by hostility to members of a particular sex. See Oncale, 523 U.S. at 80, 118 S.Ct. 998 ("A trier of fact might reasonably find such [same-sex] discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace.”).

. The American Heritage Dictionary, New College Edition, defines “fuck” as: "1. Vulgar. To have sexual intercourse with. 2. Vulgar Slang. To deal with in an aggressive, unjust, or spiteful manner.” p. 531.

. In support of the proposition that “bitch” is not indicia of a misogynist attitude, Judge Beam cites Kriss v. Sprint Communications Co., 58 F.3d 1276, 1281 (8th Cir.1995). In Kriss, we reversed the district court's finding of gender discrimination following a bench trial. Kriss' supervisor had once stated that a woman in the office was a "bitch.” This court considered the supervisor's use of that term and wrote:

Specifically, the word "bitch,” it seems to us, is not an indication of a general misogynist attitude. Rather, it is a crude, gender-specific vulgarity, which in this case was directed toward only one woman, rather than women in general. (We note the existence of many vulgar epithets that are used only of men that, we believe, would not be indicative of animus against males.) Hence, we do not find Miller's use of this term to be particularly probative of gender discrimination. Perhaps if the evidence were that Miller regularly used the word “bitch” as a synonym for “complain,” the plaintiffs case would be stronger, because that would furnish some evidence that Miller associated complaining with females.

Id. (emphasis added).

. Hoeevar testified through deposition about an incident in which a female physician backed she and Amundsen out a door, refusing to allow them to visit another physician. Hoeevar testified that Amundsen became "very angry,” was “ranting and raving” and said "I wish I was in the military again or, like, a cop, because I’d like her to fear me. I should go up there and slam her one.” Throughout the day, Amundsen repeatedly referred to the female physician as a "fat fucking bitch” and a "fucking bitch.” This single incident gives a clear understanding of the hostile context in which Amundsen used these offensive terms.

. The American Heritage Dictionary, New College Edition, defines "bitch” as: “Slang. A spiteful or lewd woman.” p. 135.

. The defendant asserts this was not a basis for the district court's summary judgment grant. To the contrary, the court stated:

Because none of the alleged harassment was directed at Hoeevar, and because the incidents were infrequent, the allegations fail to be sufficiently pervasive and severe enough to alter the conditions of her employment and create an abusive working environment. Thus, Defendant's motion for summary judgment on Count 1 is granted.

Dist. Ct. Mem. and Order at 9.

. The EEOC stated that an employer violates Title VII by maintaining a work environment in which racial insults are countenanced. It stated that Title VII requires an employer:

maintain a working atmosphere free of racial intimidation or insult. Failure to take steps reasonably calculated to maintain such an atmosphere violates the Act.... That the racial insults were not directed to [white] Charging Party, but to his fellow employees, renders the act no less a violation. Indeed, Charting Party was so offended by the epithet and the attitude underlying its use that he determined to resign his employment. That Charging Party was "aggrieved” in fact and as a matter of law is well settled.

EEOC Decision No. 71-909, 25 Ohio App.2d 141, 267 N.E.2d 814, 3 Fair Empl. Prac. Cas. (BNA) at 269-70 (1971).