Eighth Circuit's Elevated Standard to Establish a Severe or Pervasive Work Environment Under Title VII Dooms Employee's Hostile Work Environment Claim

Kemna-ASA Auto Plaza, Inc. v. Burns; et al - Eighth Circuit Court of Appeals

Facts:  Jennifer Paskert ("Paskert") was hired as a sales associate at Auto$mart, Inc. ("Auto Smart").  Auto Smart was part of a larger group of businesses operated by Kenneth Kemna ("Kemna").  During her time at Auto Smart, Paskert was supervised by Brent Burns ("Burns").  The evidence in the record established that Burns' behavior as a manager was volatile:  he frequently lost his temper; ridiculed and screamed at his employees; referred to female customers using derogatory names; threw objects in the office; remarked that he "never should have hired a woman"; wondered aloud if he could make Paskert cry; bragged about his sexual conquests; rubbed Paskert's shoulders; and indicated that if he was not married, he could "have" Paskert.

Paskert and another co-worker, James Bjorkland, reported the incidents to a director and supervising manager of Auto Smart.  When Burns was approached about having Paskert fired, Burns suggested she be retained but with a different job title and pay structure.  Paskert soon thereafter was offered a new payment plan and job title which she accepted.  Three days later, she was terminated for insubordination and for "refus[ing] to discuss what was bothering her on Friday, November 6th."

Paskert thereafter filed a complaint with the Iowa Civil Rights Commission alleging a hostile work environment created and maintained by Burns and a few others at Auto Smart.  After receiving her right to sue letter, Paskert filed suit based upon a claim for sex discrimination based on a hostile work environment and retaliation.  The district court granted the Defendants' motion for summary judgment and Paskert appealed.

Holding: (Note, this case brief only analyzed the hostile work environment portion of Paskert's claim.)

As readers might be aware, Title VII of the Civil Rights Act of 1964 ("Title VII") prohibits sexual harassment that takes the form of a hostile work environment.  An employee may sue under Title VII if the harassment is "sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment.  Notably, while the United States Supreme Court's precedent is clear that "Title VII comes into play before the harassing conduct leads to a nervous breakdown", the Eighth Circuit's precedent has set a higher bar for conduct to be sufficiently severe or pervasive to trigger a Title VII violation.

Referring to prior caselaw, the Eighth Circuit has found that a supervisor sexually propositioning an employee, requesting an employee draw an image of a phallic symbol to demonstrate her qualification for a position, and incidental unwelcome sexual conduct did not establish actionable severe or pervasive conduct under Title VII.  Given the elevated standard to find actionable conduct under Title VII, the Court held that the conduct that Paskert was exposed to at Auto Smart did not create a hostile work environment.

Judgment:  The Eighth Circuit Court of Appeals affirmed summary judgment in favor of the Defendants on the grounds that the employee had failed to point to sufficient evidence in the record to establish she was subjected to "sufficiently severe or pervasive" conditions to alter the terms and conditions of her employment, such that she had no actionable hostile work environment claim under Title VII of the Civil Rights Act of 1964.

The Takeaway:  I will point out that the Court of Appeals recognized that while the behavior that Paskert was exposed to was inappropriate and should not be tolerated in the workplace, it was not nearly as severe or pervasive as the behavior that was found to be insufficient in prior caselaw.  Since those cases did not find more severe or pervasive conduct to be actionable under Title VII, that led to the holding that the workplace conduct that Paskert was exposed to also was not actionable under Title VII.  It goes without saying that it is unfortunate that Paskert experienced this conduct while at work...but this case serves as another reminder that just because you have a difficult, rude, obtuse, immature boss or supervisor, their poor conduct does not necessarily create a hostile work environment under Title VII.

Majority Opinion Judge:  Judge Grasz

Date:  February 13, 2020

Opinion:  https://cases.justia.com/federal/appellate-courts/ca8/18-3623/18-3623-2020-02-13.pdf?ts=1581611429