{"id":280,"date":"2015-05-17T05:53:45","date_gmt":"2015-05-17T05:53:45","guid":{"rendered":"https:\/\/courses.candelalearning.com\/masterybusinesslaw1x6xmaster\/?post_type=chapter&p=280"},"modified":"2017-01-09T19:42:49","modified_gmt":"2017-01-09T19:42:49","slug":"enforcement-of-title-vii","status":"publish","type":"chapter","link":"https:\/\/courses.lumenlearning.com\/montgomerycollege-masterybusinesslaw2\/chapter\/enforcement-of-title-vii\/","title":{"raw":"Reading: Title VII and Hostile Work Environment","rendered":"Reading: Title VII and Hostile Work Environment"},"content":{"raw":"

Duncan v. General Motors Corporation<\/h2>\r\n
\r\n
\r\n\r\n300 F.3d 928 (8th Cir. 2002)\r\n\r\nOPINION BY HANSEN, Circuit Judge.\r\n\r\nThe Junior College District of St. Louis (the College) arranged for Diana Duncan to provide in-house technical training at General Motors Corporation\u2019s (GMC) manufacturing facility in Wentzville, Missouri. Throughout her tenure at GMC, Duncan was subjected to unwelcome attention by a GMC employee, James Booth, which culminated in Duncan\u2019s resignation. Duncan subsequently filed this suit under Title VII of the Civil Rights Act and the Missouri Human Rights Act, see 42 U.S.C. \u00a7\u00a7 2000e-2000e-17; Mo. Rev. Stat. \u00a7\u00a7 213.010-213.137,2<\/sup>alleging that she was sexually harassed and constructively discharged. A jury found in favor of Duncan and awarded her $4600 in back pay, $700,000 in emotional distress damages on her sexual harassment claim, and $300,000 in emotional distress damages on her constructive discharge claim. GMC appeals from the district court\u2019s denial of its post trial motion for judgment as a matter of law, and the district court\u2019s award of attorneys\u2019 fees attendant to the post trial motion. We reverse.\r\n

I.<\/h2>\r\nDiana Duncan worked as a technical training clerk in the high-tech area at GMC as part of the College\u2019s Center for Business, Industry, and Labor program from August 1994 until May 1997. Duncan provided in-house training support to GMC employees.\r\n\r\nDuncan first learned about the College\u2019s position at GMC from Booth, a United Auto Workers Union technology training coordinator for GMC. Booth frequented the country club where Duncan worked as a waitress and a bartender. Booth asked Duncan if she knew anyone who had computer and typing skills and who might be interested in a position at GMC. Duncan expressed interest in the job. Booth brought the pre-employment forms to Duncan at the country club, and he forwarded her completed forms to Jerry Reese, the manager of operations, manufacturing, and training for the College. Reese arranged to interview Duncan at GMC. Reese, Booth, and Ed Ish, who was Booth\u2019s management counterpart in the high-tech area of the GMC plant, participated in the interview. Duncan began work at GMC in August 1994.\r\n\r\nTwo weeks after Duncan began working at GMC, Booth requested an off-site meeting with her at a local restaurant. Booth explained to Duncan that he was in love with a married coworker and that his own marriage was troubled. Booth then propositioned Duncan by asking her if she would have a relationship with him. Duncan rebuffed his advance and left the restaurant. The next day Duncan mentioned the incident to the paint department supervisor Joe Rolen, who had no authority over Booth. Duncan did not report Booth\u2019s conduct to either Reese (her supervisor) at the College or Ish (Booth\u2019s management counterpart) at GMC. However, she did confront Booth, and he apologized for his behavior. He made no further such \u201cpropositions.\u201d Duncan stated that Booth\u2019s manner toward her after she declined his advance became hostile, and he became more critical of her work. For example, whenever she made a typographical error, he told her that she was incompetent and that he should hire a \u201cKelly Services\u201d person to replace her. Duncan admitted that Booth\u2019s criticisms were often directed at other employees as well, including male coworkers.\r\n\r\nDuncan testified to numerous incidents of Booth\u2019s inappropriate behavior. Booth directed Duncan to create a training document for him on his computer because it was the only computer with the necessary software. The screen saver that Booth had selected to use on his computer was a picture of a naked woman. Duncan testified to four or five occasions when Booth would unnecessarily touch her hand when she handed him the telephone. In addition, Booth had a planter in his office that was shaped like a slouched man wearing a sombrero. The planter had a hole in the front of the man\u2019s pants that allowed for a cactus to protrude. The planter was in plain view to anyone entering Booth\u2019s office. Booth also kept a child\u2019s pacifier that was shaped like a penis in his office that he occasionally showed to his coworkers and specifically to Duncan on two occasions.\r\n\r\nIn 1995, Duncan requested a pay increase and told Booth that she would like to be considered for an illustrator\u2019s position. Booth said that she would have to prove her artistic ability by drawing his planter. Duncan objected, particularly because previous applicants for the position were required to draw automotive parts and not his planter. Ultimately, Duncan learned that she was not qualified for the position because she did not possess a college degree.\r\n\r\nAdditionally in 1995, Booth and a College employee created a \u201crecruitment\u201d poster that was posted on a bulletin board in the high-tech area. The poster portrayed Duncan as the president and CEO of the Man Hater\u2019s Club of America. It listed the club\u2019s membership qualifications as: \u201cMust always be in control of: (1) Checking, Savings, all loose change, etc.; (2) (Ugh) Sex; (3) Raising children our way!; (4) Men must always do household chores; (5) Consider T.V. Dinners a gourmet meal.\u201d\u2026\r\n\r\nOn May 5, 1997, Booth asked Duncan to type a draft of the beliefs of the \u201cHe-Men Women Hater\u2019s Club.\u201d The beliefs included the following:\r\n\r\n\u2014Constitutional Amendment, the 19th, giving women [the] right to vote should be repealed. Real He-Men indulge in a lifestyle of cursing, using tools, handling guns, driving trucks, hunting and of course, drinking beer.\r\n\r\n\u2014Women really do have coodies [sic] and they can spread.\r\n\r\n\u2014Women [are] the cause of 99.9 per cent of stress in men.\r\n\r\n\u2014Sperm has a right to live.\r\n\r\n\u2014All great chiefs of the world are men.\r\n\r\n\u2014Prostitution should be legalized.\r\n\r\nDuncan refused to type the beliefs and resigned two days later.\r\n\r\nDuncan testified that she complained to anyone who would listen to her about Booth\u2019s behavior, beginning with paint department supervisor Joe Rolen after Booth propositioned her in 1994. Duncan testified that between 1994 and 1997 she complained several times to Reese at the College about Booth\u2019s behavior, which would improve at least in the short term after she spoke with Reese.\u2026\r\n\r\nDuncan filed a charge of sex discrimination with the Equal Employment Opportunity Commission (EEOC) on October 30, 1997. The EEOC issued Duncan a right to sue notice on April 17, 1998. Alleging sexual harassment and constructive discharge, Duncan filed suit against the College and GMC under both Title VII of the Civil Rights Act and the Missouri Human Rights Act. Duncan settled with the College prior to trial. After the jury found in Duncan\u2019s favor on both counts against GMC, GMC filed a post-trial motion for judgment as a matter of law or, alternatively, for a new trial. The district court denied the motion. The district court also awarded Duncan attorneys\u2019 fees in conjunction with GMC\u2019s post-trial motion. GMC appeals.\r\n

II.A. Hostile Work Environment<\/h2>\r\nGMC argues that it was entitled to judgment as a matter of law on Duncan\u2019s hostile work environment claim because she failed to prove a prima facie case. We agree.\u2026\r\n\r\nIt is undisputed that Duncan satisfies the first two elements of her prima facie case: she is a member of a protected group and Booth\u2019s attention was unwelcome. We also conclude that the harassment was based on sex.\u2026Although there is some evidence in the record that indicates some of Booth\u2019s behavior, and the resulting offensive and disagreeable atmosphere, was directed at both male and female employees, GMC points to ten incidents when Booth\u2019s behavior was directed at Duncan alone. GMC concedes that five of these ten incidents could arguably be based on sex: (1) Booth\u2019s proposition for a \u201crelationship\u201d; (2) Booth\u2019s touching of Duncan\u2019s hand; (3) Booth\u2019s request that Duncan sketch his planter; (4) the Man Hater\u2019s Club poster; and (5) Booth\u2019s request that Duncan type the He-Men Women Haters beliefs. \u201cA plaintiff in this kind of case need not show\u2026that only women were subjected to harassment, so long as she shows that women were the primary target of such harassment.\u201d We conclude that a jury could reasonably find that Duncan and her gender were the overriding themes of these incidents. The evidence is sufficient to support the jury finding that the harassment was based on sex.\r\n\r\nWe agree, however, with GMC\u2019s assertion that the alleged harassment was not so severe or pervasive as to alter a term, condition, or privilege of Duncan\u2019s employment.\u2026To clear the high threshold of actionable harm, Duncan has to show that \u201cthe workplace is permeated with discriminatory intimidation, ridicule, and insult.\u201d Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993) (internal quotations omitted). \u201cConduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment\u2014an environment that a reasonable person would find hostile or abusive\u2014is beyond Title VII\u2019s purview.\u201d Oncale, 523 U.S. at 81 (internal quotation omitted). Thus, the fourth part of a hostile environment claim includes both objective and subjective components: an environment that a reasonable person would find hostile and one that the victim actually perceived as abusive. Harris, 510 U.S. at 21-22. In determining whether the conduct is sufficiently severe or pervasive, we look to the totality of the circumstances, including the \u201cfrequency 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\u2019s work performance.\u201d\u2026These standards are designed to \u201cfilter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.\u201d Faragher v. City of Boca Raton, 524 U.S. 775, 788, 141 L. Ed. 2d 662, 118 S. Ct. 2275 (1998) (internal quotations omitted).\r\n\r\nThe evidence presented at trial illustrates that Duncan was upset and embarrassed by the posting of the derogatory poster and was disturbed by Booth\u2019s advances and his boorish behavior; but, as a matter of law, she has failed to show that these occurrences in the aggregate were so severe and extreme that a reasonable person would find that the terms or conditions of Duncan\u2019s employment had been altered.\u2026Numerous cases have rejected hostile work environment claims premised upon facts equally or more egregious than the conduct at issue here. See, e.g., Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 872, 874 (5th Cir.) (holding that several incidents over a two-year period, including the comment \u201cyour elbows are the same color as your nipples,\u201d another comment that plaintiff had big thighs, repeated touching of plaintiff\u2019s arm, and attempts to look down the plaintiff\u2019s dress, were insufficient to support hostile work environment claim), cert. denied, 528 U.S. 963, 145 L. Ed. 2d 308, 120 S. Ct. 395 (1999); Adusumilli v. City of Chicago, 164 F.3d 353, 357, 361-62 (7th Cir. 1998) (holding conduct insufficient to support hostile environment claim when employee teased plaintiff, made sexual jokes aimed at her, told her not to wave at police officers \u201cbecause people would think she was a prostitute,\u201d commented about low-necked tops, leered at her breasts, and touched her arm, fingers, or buttocks on four occasions), cert. denied, 528 U.S. 988, 145 L. Ed. 2d 367, 120 S. Ct. 450 (1999); Black v. Zaring Homes,, Inc., 104 F.3d 822, 823-24, 826 (6th Cir.) (reversing jury verdict and holding behavior merely offensive and insufficient to support hostile environment claim when employee reached across plaintiff, stating \u201cnothing I like more in the morning than sticky buns\u201d while staring at her suggestively; suggested to plaintiff that parcel of land be named \u201cHootersville,\u201d \u201cTitsville,\u201d or \u201cTwin Peaks\u201d; and asked \u201cweren\u2019t you there Saturday night dancing on the tables?\u201d while discussing property near a biker bar), cert. denied, 522 U.S. 865, 139 L. Ed. 2d 114, 118 S. Ct. 172 (1997); Weiss v. Coca-Cola Bottling Co., 990 F.2d 333, 337 (7th Cir. 1993) (holding no sexual harassment when plaintiff\u2019s supervisor asked plaintiff for dates, asked about her personal life, called her a \u201cdumb blond,\u201d put his hand on her shoulder several times, placed \u201cI love you\u201d signs at her work station, and attempted to kiss her twice at work and once in a bar).\r\n\r\nBooth\u2019s actions were boorish, chauvinistic, and decidedly immature, but we cannot say they created an objectively hostile work environment permeated with sexual harassment. Construing the evidence in the light most favorable to Duncan, she presented evidence of four categories of harassing conduct based on her sex: a single request for a relationship, which was not repeated when she rebuffed it, four or five isolated incidents of Booth briefly touching her hand, a request to draw a planter, and teasing in the form of a poster and beliefs for an imaginary club. It is apparent that these incidents made Duncan uncomfortable, but they do not meet the standard necessary for actionable sexual harassment. It is worth noting that Duncan fails to even address this component of her prima facie case in her brief. We conclude as a matter of law that she did not show a sexually harassing hostile environment sufficiently severe or pervasive so as to alter the conditions of her employment, a failure that dooms Duncan\u2019s hostile work environment claim. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986).\r\n\r\nFor the foregoing reasons, we reverse the district court\u2019s denial of judgment as a matter of law. Because GMC should have prevailed on its post-trial motion, the award of attorneys\u2019 fees is likewise vacated.\r\n\r\nRICHARD S. ARNOLD, Circuit Judge, dissenting.\r\n\r\nThe Court concludes that the harassment suffered by Ms. Duncan was not so severe or pervasive as to alter a term, condition, or privilege of her employment, and that, therefore, GMC is entitled to judgment as a matter of law on her hostile-work environment and constructive-discharge claims. I respectfully disagree.\r\n\r\nMs. Duncan was subjected to a long series of incidents of sexual harassment in her workplace, going far beyond \u201cgender-related jokes and occasional teasing.\u201d Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1988). When the evidence is considered in the light most favorable to her, and she is given the benefit of all reasonable inferences, there is \u201csubstantial evidence to sustain the cause of action.\u201d Stockmen\u2019s Livestock Market, Inc. v. Norwest Bank of Sioux City, 135 F.3d 1236, 1240 (8th Cir. 1998) In Ms. Duncan\u2019s case, a jury reached the conclusion that Mr. Booth\u2019s offensive behavior created a hostile work environment. I believe this determination was reasonable and supported by ample evidence.\r\n\r\nMs. Duncan was subjected to a sexual advance by her supervisor within days of beginning her job. This proposition occurred during work hours and was a direct request for a sexual relationship. The Court characterizes this incident as a \u201csingle request,\u201d (but) [t]his description minimizes the effect of the sexual advance on Ms. Duncan\u2019s working conditions. During the months immediately following this incident, Mr. Booth became hostile to Ms. Duncan, increased his criticism of her work, and degraded her professional capabilities in front of her peers. Significantly, there is no suggestion that this hostile behavior occurred before<\/em>Ms. Duncan refused his request for sex. From this evidence, a jury could easily draw the inference that Mr. Booth changed his attitude about Ms. Duncan\u2019s work because she rejected his sexual advance.\r\n\r\nFurther, this sexual overture was not an isolated incident. It was only the beginning of a string of degrading actions that Mr. Booth directed toward Ms. Duncan based on her sex. This inappropriate behavior took many forms, from physical touching to social humiliation to emotional intimidation. For example, Mr. Booth repeatedly touched Ms. Duncan inappropriately on her hand. He publicly singled her out before her colleagues as a \u201cMan Hater\u201d who \u201cmust always be in control of\u201d sex. He required her to choose between drawing a vulgar planter displayed in his office or not being considered for a promotion, an unfair choice that would likely intimidate a reasonable person from seeking further career advancement.\r\n\r\nThe Court cites cases in which our sister Circuits have rejected hostile-work environment claims premised upon facts that the Court determines to be \u201cequally or more egregious\u201d than the conduct at issue here. I do not agree that Ms. Duncan experienced less severe harassment than those plaintiffs. For example, in Weiss v. Coca-Cola Bottling Co., 990 F.2d 333 (7th Cir. 1993), the plaintiff did not allege that her work duties or evaluations were different because of her sex. This is not the situation Ms. Duncan faced. She was given specific tasks of a sexually charged nature, such as typing up the minutes of the \u201cHe-Man Women Hater\u2019s Club.\u201d Performing this \u201cfunction\u201d was presented to her as a required duty of her job.\r\n\r\nAlso Ms. Duncan was subjected to allegations that she was professionally \u201cincompetent because of her sex.\u201d\u2026She adduced evidence of this factor when she testified that after she rejected his sexual advance, Mr. Booth became more critical of her work. With the request for her to draw the planter for a promotion, Ms. Duncan also faced \u201cconduct that would prevent her from succeeding in the workplace,\u201d a fact that Ms. Shepherd could not point to in her case. Additionally, Ms. Duncan was \u201cpropositioned\u201d to sleep with her employer\u2026a claim not made by Ms. Shepherd.\r\n\r\nFinally, we note that in Ms. Duncan\u2019s case the harassing acts were directed specifically at her. The Court in Black v. Zaring Homes, 104 F.3d 822, 826 (6th Cir.), cert. denied, 522 U.S. 865, 139 L. Ed. 2d 114, 118 S. Ct. 172 (1997), stated that the lack of specific comments to the plaintiff supported the conclusion that the defendant\u2019s conduct was not severe enough to create actionable harm. By contrast, in the present case, a jury could reasonably conclude that Ms. Duncan felt particularly humiliated and degraded by Mr. Booth\u2019s behavior because she alone was singled out for this harassment.\r\n\r\nOur own Court\u2019s Title VII jurisprudence suggests that Ms. Duncan experienced enough offensive conduct to constitute sexual harassment. For example, in Breeding v. Arthur J. Gallagher and Co. we reversed a grant of summary judgment to an employer, stating that a supervisor who \u201cfondled his genitals [**25] in front of\u201d a female employee and \u201cused lewd and sexually inappropriate language\u201d could create an environment severe enough to be actionable under Title VII. 164 F.3d 1151, 1159 (8th Cir. 1999). In Rorie v. United Parcel Service, we concluded that a work environment in which \u201ca supervisor pats a female employee on the back, brushes up against her, and tells her she smells good\u201d could be found by a jury to be a hostile work environment. 151 F.3d 757, 762 (8th Cir. 1998). Is it clear that the women in these cases suffered harassment greater than Ms. Duncan? I think not.\r\n\r\nWe have acknowledged that \u201cthere is no bright line between sexual harassment and merely unpleasant conduct, so a jury\u2019s decision must generally stand unless there is trial error.\u201d Hathaway v. Runyon, 132 F.3d 1214, 1221 (8th Cir. 1998). We have also ruled that \u201conce 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.\u201d Howard v. Burns Bros., Inc., 149 F.3d 835, 840 (8th Cir. 1998). The Court admits that Ms. Duncan took subjective offense to Mr. Booth\u2019s behavior and characterizes Mr. Booth\u2019s behavior as \u201cboorish, chauvinistic, and decidedly immature.\u201d Thus, the Court appears to agree that Mr. Booth\u2019s behavior was \u201cimproper conduct.\u201d I believe the Court errs in deciding as a matter of law that the jury did not act reasonably in concluding that Ms. Duncan faced severe or pervasive harassment that created a hostile work environment.\r\n\r\nTherefore, I dissent from the Court\u2019s conclusion that Ms. Duncan did not present sufficient evidence to survive judgment as a matter of law on her hostile work-environment and constructive-discharge claims.\r\n

Reflection<\/span> Questions<\/span><\/h2>\r\n
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  • What learning outcome\u00a0relates to this content?<\/li>\r\n\t
  • What are the key topics covered in this content?<\/li>\r\n\t
  • How can the content in this section help you demonstrate mastery of the learning outcome?<\/li>\r\n\t
  • What questions<\/span> do you have about this content?<\/li>\r\n<\/ul>\r\n<\/div>\r\n<\/div>","rendered":"

    Duncan v. General Motors Corporation<\/h2>\n
    \n
    \n

    300 F.3d 928 (8th Cir. 2002)<\/p>\n

    OPINION BY HANSEN, Circuit Judge.<\/p>\n

    The Junior College District of St. Louis (the College) arranged for Diana Duncan to provide in-house technical training at General Motors Corporation\u2019s (GMC) manufacturing facility in Wentzville, Missouri. Throughout her tenure at GMC, Duncan was subjected to unwelcome attention by a GMC employee, James Booth, which culminated in Duncan\u2019s resignation. Duncan subsequently filed this suit under Title VII of the Civil Rights Act and the Missouri Human Rights Act, see 42 U.S.C. \u00a7\u00a7 2000e-2000e-17; Mo. Rev. Stat. \u00a7\u00a7 213.010-213.137,2<\/sup>alleging that she was sexually harassed and constructively discharged. A jury found in favor of Duncan and awarded her $4600 in back pay, $700,000 in emotional distress damages on her sexual harassment claim, and $300,000 in emotional distress damages on her constructive discharge claim. GMC appeals from the district court\u2019s denial of its post trial motion for judgment as a matter of law, and the district court\u2019s award of attorneys\u2019 fees attendant to the post trial motion. We reverse.<\/p>\n

    I.<\/h2>\n

    Diana Duncan worked as a technical training clerk in the high-tech area at GMC as part of the College\u2019s Center for Business, Industry, and Labor program from August 1994 until May 1997. Duncan provided in-house training support to GMC employees.<\/p>\n

    Duncan first learned about the College\u2019s position at GMC from Booth, a United Auto Workers Union technology training coordinator for GMC. Booth frequented the country club where Duncan worked as a waitress and a bartender. Booth asked Duncan if she knew anyone who had computer and typing skills and who might be interested in a position at GMC. Duncan expressed interest in the job. Booth brought the pre-employment forms to Duncan at the country club, and he forwarded her completed forms to Jerry Reese, the manager of operations, manufacturing, and training for the College. Reese arranged to interview Duncan at GMC. Reese, Booth, and Ed Ish, who was Booth\u2019s management counterpart in the high-tech area of the GMC plant, participated in the interview. Duncan began work at GMC in August 1994.<\/p>\n

    Two weeks after Duncan began working at GMC, Booth requested an off-site meeting with her at a local restaurant. Booth explained to Duncan that he was in love with a married coworker and that his own marriage was troubled. Booth then propositioned Duncan by asking her if she would have a relationship with him. Duncan rebuffed his advance and left the restaurant. The next day Duncan mentioned the incident to the paint department supervisor Joe Rolen, who had no authority over Booth. Duncan did not report Booth\u2019s conduct to either Reese (her supervisor) at the College or Ish (Booth\u2019s management counterpart) at GMC. However, she did confront Booth, and he apologized for his behavior. He made no further such \u201cpropositions.\u201d Duncan stated that Booth\u2019s manner toward her after she declined his advance became hostile, and he became more critical of her work. For example, whenever she made a typographical error, he told her that she was incompetent and that he should hire a \u201cKelly Services\u201d person to replace her. Duncan admitted that Booth\u2019s criticisms were often directed at other employees as well, including male coworkers.<\/p>\n

    Duncan testified to numerous incidents of Booth\u2019s inappropriate behavior. Booth directed Duncan to create a training document for him on his computer because it was the only computer with the necessary software. The screen saver that Booth had selected to use on his computer was a picture of a naked woman. Duncan testified to four or five occasions when Booth would unnecessarily touch her hand when she handed him the telephone. In addition, Booth had a planter in his office that was shaped like a slouched man wearing a sombrero. The planter had a hole in the front of the man\u2019s pants that allowed for a cactus to protrude. The planter was in plain view to anyone entering Booth\u2019s office. Booth also kept a child\u2019s pacifier that was shaped like a penis in his office that he occasionally showed to his coworkers and specifically to Duncan on two occasions.<\/p>\n

    In 1995, Duncan requested a pay increase and told Booth that she would like to be considered for an illustrator\u2019s position. Booth said that she would have to prove her artistic ability by drawing his planter. Duncan objected, particularly because previous applicants for the position were required to draw automotive parts and not his planter. Ultimately, Duncan learned that she was not qualified for the position because she did not possess a college degree.<\/p>\n

    Additionally in 1995, Booth and a College employee created a \u201crecruitment\u201d poster that was posted on a bulletin board in the high-tech area. The poster portrayed Duncan as the president and CEO of the Man Hater\u2019s Club of America. It listed the club\u2019s membership qualifications as: \u201cMust always be in control of: (1) Checking, Savings, all loose change, etc.; (2) (Ugh) Sex; (3) Raising children our way!; (4) Men must always do household chores; (5) Consider T.V. Dinners a gourmet meal.\u201d\u2026<\/p>\n

    On May 5, 1997, Booth asked Duncan to type a draft of the beliefs of the \u201cHe-Men Women Hater\u2019s Club.\u201d The beliefs included the following:<\/p>\n

    \u2014Constitutional Amendment, the 19th, giving women [the] right to vote should be repealed. Real He-Men indulge in a lifestyle of cursing, using tools, handling guns, driving trucks, hunting and of course, drinking beer.<\/p>\n

    \u2014Women really do have coodies [sic] and they can spread.<\/p>\n

    \u2014Women [are] the cause of 99.9 per cent of stress in men.<\/p>\n

    \u2014Sperm has a right to live.<\/p>\n

    \u2014All great chiefs of the world are men.<\/p>\n

    \u2014Prostitution should be legalized.<\/p>\n

    Duncan refused to type the beliefs and resigned two days later.<\/p>\n

    Duncan testified that she complained to anyone who would listen to her about Booth\u2019s behavior, beginning with paint department supervisor Joe Rolen after Booth propositioned her in 1994. Duncan testified that between 1994 and 1997 she complained several times to Reese at the College about Booth\u2019s behavior, which would improve at least in the short term after she spoke with Reese.\u2026<\/p>\n

    Duncan filed a charge of sex discrimination with the Equal Employment Opportunity Commission (EEOC) on October 30, 1997. The EEOC issued Duncan a right to sue notice on April 17, 1998. Alleging sexual harassment and constructive discharge, Duncan filed suit against the College and GMC under both Title VII of the Civil Rights Act and the Missouri Human Rights Act. Duncan settled with the College prior to trial. After the jury found in Duncan\u2019s favor on both counts against GMC, GMC filed a post-trial motion for judgment as a matter of law or, alternatively, for a new trial. The district court denied the motion. The district court also awarded Duncan attorneys\u2019 fees in conjunction with GMC\u2019s post-trial motion. GMC appeals.<\/p>\n

    II.A. Hostile Work Environment<\/h2>\n

    GMC argues that it was entitled to judgment as a matter of law on Duncan\u2019s hostile work environment claim because she failed to prove a prima facie case. We agree.\u2026<\/p>\n

    It is undisputed that Duncan satisfies the first two elements of her prima facie case: she is a member of a protected group and Booth\u2019s attention was unwelcome. We also conclude that the harassment was based on sex.\u2026Although there is some evidence in the record that indicates some of Booth\u2019s behavior, and the resulting offensive and disagreeable atmosphere, was directed at both male and female employees, GMC points to ten incidents when Booth\u2019s behavior was directed at Duncan alone. GMC concedes that five of these ten incidents could arguably be based on sex: (1) Booth\u2019s proposition for a \u201crelationship\u201d; (2) Booth\u2019s touching of Duncan\u2019s hand; (3) Booth\u2019s request that Duncan sketch his planter; (4) the Man Hater\u2019s Club poster; and (5) Booth\u2019s request that Duncan type the He-Men Women Haters beliefs. \u201cA plaintiff in this kind of case need not show\u2026that only women were subjected to harassment, so long as she shows that women were the primary target of such harassment.\u201d We conclude that a jury could reasonably find that Duncan and her gender were the overriding themes of these incidents. The evidence is sufficient to support the jury finding that the harassment was based on sex.<\/p>\n

    We agree, however, with GMC\u2019s assertion that the alleged harassment was not so severe or pervasive as to alter a term, condition, or privilege of Duncan\u2019s employment.\u2026To clear the high threshold of actionable harm, Duncan has to show that \u201cthe workplace is permeated with discriminatory intimidation, ridicule, and insult.\u201d Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993) (internal quotations omitted). \u201cConduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment\u2014an environment that a reasonable person would find hostile or abusive\u2014is beyond Title VII\u2019s purview.\u201d Oncale, 523 U.S. at 81 (internal quotation omitted). Thus, the fourth part of a hostile environment claim includes both objective and subjective components: an environment that a reasonable person would find hostile and one that the victim actually perceived as abusive. Harris, 510 U.S. at 21-22. In determining whether the conduct is sufficiently severe or pervasive, we look to the totality of the circumstances, including the \u201cfrequency 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\u2019s work performance.\u201d\u2026These standards are designed to \u201cfilter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.\u201d Faragher v. City of Boca Raton, 524 U.S. 775, 788, 141 L. Ed. 2d 662, 118 S. Ct. 2275 (1998) (internal quotations omitted).<\/p>\n

    The evidence presented at trial illustrates that Duncan was upset and embarrassed by the posting of the derogatory poster and was disturbed by Booth\u2019s advances and his boorish behavior; but, as a matter of law, she has failed to show that these occurrences in the aggregate were so severe and extreme that a reasonable person would find that the terms or conditions of Duncan\u2019s employment had been altered.\u2026Numerous cases have rejected hostile work environment claims premised upon facts equally or more egregious than the conduct at issue here. See, e.g., Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 872, 874 (5th Cir.) (holding that several incidents over a two-year period, including the comment \u201cyour elbows are the same color as your nipples,\u201d another comment that plaintiff had big thighs, repeated touching of plaintiff\u2019s arm, and attempts to look down the plaintiff\u2019s dress, were insufficient to support hostile work environment claim), cert. denied, 528 U.S. 963, 145 L. Ed. 2d 308, 120 S. Ct. 395 (1999); Adusumilli v. City of Chicago, 164 F.3d 353, 357, 361-62 (7th Cir. 1998) (holding conduct insufficient to support hostile environment claim when employee teased plaintiff, made sexual jokes aimed at her, told her not to wave at police officers \u201cbecause people would think she was a prostitute,\u201d commented about low-necked tops, leered at her breasts, and touched her arm, fingers, or buttocks on four occasions), cert. denied, 528 U.S. 988, 145 L. Ed. 2d 367, 120 S. Ct. 450 (1999); Black v. Zaring Homes,, Inc., 104 F.3d 822, 823-24, 826 (6th Cir.) (reversing jury verdict and holding behavior merely offensive and insufficient to support hostile environment claim when employee reached across plaintiff, stating \u201cnothing I like more in the morning than sticky buns\u201d while staring at her suggestively; suggested to plaintiff that parcel of land be named \u201cHootersville,\u201d \u201cTitsville,\u201d or \u201cTwin Peaks\u201d; and asked \u201cweren\u2019t you there Saturday night dancing on the tables?\u201d while discussing property near a biker bar), cert. denied, 522 U.S. 865, 139 L. Ed. 2d 114, 118 S. Ct. 172 (1997); Weiss v. Coca-Cola Bottling Co., 990 F.2d 333, 337 (7th Cir. 1993) (holding no sexual harassment when plaintiff\u2019s supervisor asked plaintiff for dates, asked about her personal life, called her a \u201cdumb blond,\u201d put his hand on her shoulder several times, placed \u201cI love you\u201d signs at her work station, and attempted to kiss her twice at work and once in a bar).<\/p>\n

    Booth\u2019s actions were boorish, chauvinistic, and decidedly immature, but we cannot say they created an objectively hostile work environment permeated with sexual harassment. Construing the evidence in the light most favorable to Duncan, she presented evidence of four categories of harassing conduct based on her sex: a single request for a relationship, which was not repeated when she rebuffed it, four or five isolated incidents of Booth briefly touching her hand, a request to draw a planter, and teasing in the form of a poster and beliefs for an imaginary club. It is apparent that these incidents made Duncan uncomfortable, but they do not meet the standard necessary for actionable sexual harassment. It is worth noting that Duncan fails to even address this component of her prima facie case in her brief. We conclude as a matter of law that she did not show a sexually harassing hostile environment sufficiently severe or pervasive so as to alter the conditions of her employment, a failure that dooms Duncan\u2019s hostile work environment claim. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986).<\/p>\n

    For the foregoing reasons, we reverse the district court\u2019s denial of judgment as a matter of law. Because GMC should have prevailed on its post-trial motion, the award of attorneys\u2019 fees is likewise vacated.<\/p>\n

    RICHARD S. ARNOLD, Circuit Judge, dissenting.<\/p>\n

    The Court concludes that the harassment suffered by Ms. Duncan was not so severe or pervasive as to alter a term, condition, or privilege of her employment, and that, therefore, GMC is entitled to judgment as a matter of law on her hostile-work environment and constructive-discharge claims. I respectfully disagree.<\/p>\n

    Ms. Duncan was subjected to a long series of incidents of sexual harassment in her workplace, going far beyond \u201cgender-related jokes and occasional teasing.\u201d Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1988). When the evidence is considered in the light most favorable to her, and she is given the benefit of all reasonable inferences, there is \u201csubstantial evidence to sustain the cause of action.\u201d Stockmen\u2019s Livestock Market, Inc. v. Norwest Bank of Sioux City, 135 F.3d 1236, 1240 (8th Cir. 1998) In Ms. Duncan\u2019s case, a jury reached the conclusion that Mr. Booth\u2019s offensive behavior created a hostile work environment. I believe this determination was reasonable and supported by ample evidence.<\/p>\n

    Ms. Duncan was subjected to a sexual advance by her supervisor within days of beginning her job. This proposition occurred during work hours and was a direct request for a sexual relationship. The Court characterizes this incident as a \u201csingle request,\u201d (but) [t]his description minimizes the effect of the sexual advance on Ms. Duncan\u2019s working conditions. During the months immediately following this incident, Mr. Booth became hostile to Ms. Duncan, increased his criticism of her work, and degraded her professional capabilities in front of her peers. Significantly, there is no suggestion that this hostile behavior occurred before<\/em>Ms. Duncan refused his request for sex. From this evidence, a jury could easily draw the inference that Mr. Booth changed his attitude about Ms. Duncan\u2019s work because she rejected his sexual advance.<\/p>\n

    Further, this sexual overture was not an isolated incident. It was only the beginning of a string of degrading actions that Mr. Booth directed toward Ms. Duncan based on her sex. This inappropriate behavior took many forms, from physical touching to social humiliation to emotional intimidation. For example, Mr. Booth repeatedly touched Ms. Duncan inappropriately on her hand. He publicly singled her out before her colleagues as a \u201cMan Hater\u201d who \u201cmust always be in control of\u201d sex. He required her to choose between drawing a vulgar planter displayed in his office or not being considered for a promotion, an unfair choice that would likely intimidate a reasonable person from seeking further career advancement.<\/p>\n

    The Court cites cases in which our sister Circuits have rejected hostile-work environment claims premised upon facts that the Court determines to be \u201cequally or more egregious\u201d than the conduct at issue here. I do not agree that Ms. Duncan experienced less severe harassment than those plaintiffs. For example, in Weiss v. Coca-Cola Bottling Co., 990 F.2d 333 (7th Cir. 1993), the plaintiff did not allege that her work duties or evaluations were different because of her sex. This is not the situation Ms. Duncan faced. She was given specific tasks of a sexually charged nature, such as typing up the minutes of the \u201cHe-Man Women Hater\u2019s Club.\u201d Performing this \u201cfunction\u201d was presented to her as a required duty of her job.<\/p>\n

    Also Ms. Duncan was subjected to allegations that she was professionally \u201cincompetent because of her sex.\u201d\u2026She adduced evidence of this factor when she testified that after she rejected his sexual advance, Mr. Booth became more critical of her work. With the request for her to draw the planter for a promotion, Ms. Duncan also faced \u201cconduct that would prevent her from succeeding in the workplace,\u201d a fact that Ms. Shepherd could not point to in her case. Additionally, Ms. Duncan was \u201cpropositioned\u201d to sleep with her employer\u2026a claim not made by Ms. Shepherd.<\/p>\n

    Finally, we note that in Ms. Duncan\u2019s case the harassing acts were directed specifically at her. The Court in Black v. Zaring Homes, 104 F.3d 822, 826 (6th Cir.), cert. denied, 522 U.S. 865, 139 L. Ed. 2d 114, 118 S. Ct. 172 (1997), stated that the lack of specific comments to the plaintiff supported the conclusion that the defendant\u2019s conduct was not severe enough to create actionable harm. By contrast, in the present case, a jury could reasonably conclude that Ms. Duncan felt particularly humiliated and degraded by Mr. Booth\u2019s behavior because she alone was singled out for this harassment.<\/p>\n

    Our own Court\u2019s Title VII jurisprudence suggests that Ms. Duncan experienced enough offensive conduct to constitute sexual harassment. For example, in Breeding v. Arthur J. Gallagher and Co. we reversed a grant of summary judgment to an employer, stating that a supervisor who \u201cfondled his genitals [**25] in front of\u201d a female employee and \u201cused lewd and sexually inappropriate language\u201d could create an environment severe enough to be actionable under Title VII. 164 F.3d 1151, 1159 (8th Cir. 1999). In Rorie v. United Parcel Service, we concluded that a work environment in which \u201ca supervisor pats a female employee on the back, brushes up against her, and tells her she smells good\u201d could be found by a jury to be a hostile work environment. 151 F.3d 757, 762 (8th Cir. 1998). Is it clear that the women in these cases suffered harassment greater than Ms. Duncan? I think not.<\/p>\n

    We have acknowledged that \u201cthere is no bright line between sexual harassment and merely unpleasant conduct, so a jury\u2019s decision must generally stand unless there is trial error.\u201d Hathaway v. Runyon, 132 F.3d 1214, 1221 (8th Cir. 1998). We have also ruled that \u201conce 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.\u201d Howard v. Burns Bros., Inc., 149 F.3d 835, 840 (8th Cir. 1998). The Court admits that Ms. Duncan took subjective offense to Mr. Booth\u2019s behavior and characterizes Mr. Booth\u2019s behavior as \u201cboorish, chauvinistic, and decidedly immature.\u201d Thus, the Court appears to agree that Mr. Booth\u2019s behavior was \u201cimproper conduct.\u201d I believe the Court errs in deciding as a matter of law that the jury did not act reasonably in concluding that Ms. Duncan faced severe or pervasive harassment that created a hostile work environment.<\/p>\n

    Therefore, I dissent from the Court\u2019s conclusion that Ms. Duncan did not present sufficient evidence to survive judgment as a matter of law on her hostile work-environment and constructive-discharge claims.<\/p>\n

    Reflection<\/span> Questions<\/span><\/h2>\n