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Brenneman v. Famous Dave's: EMPLOYMENT - summary judgment for employer regarding hostile work environment, retaliation claims

United States Court of Appeals
No. 06-1851
Christine M. Brenneman, *
Appellant, **
Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Famous Daves of America, Inc., *
and Dave Ryburn, **
Appellee. *
Equal Employment Opportunity *
Commission, **
Amicus on Behalf of *
Appellant. *
Submitted: September 24, 2007
Filed: November 16, 2007
Before BYE, BENTON, and SHEPHERD, Circuit Judges.
BENTON, Circuit Judge.
Christine M. Brenneman sued Famous Daves of America, Inc., and David
Ryburn (collectively Famous Daves), asserting they subjected her to a hostile work
1The Honorable Robert W. Pratt, United States District Judge for the District
of Southern Iowa.
environment and retaliated against her, in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. 2000e et seq., and the Iowa Civil Rights Act, Iowa Code 216.1
et seq. The district court1 granted defendants summary judgment. Having jurisdiction
under 28 U.S.C. 1291, this court affirms.
This court states the facts in a light most favorable to Brenneman. See Weger
v. City of Ladue, 500 F.3d 710, 718 (8th Cir. 2007). Famous Daves hired Brenneman
on January 20, 2003, as an assistant manager in West Des Moines, Iowa. Dave
Ryburn, her immediate supervisor, was general manager of the restaurant there.
Brenneman spent the first four to five weeks in Lincoln, Nebraska, training with
Chuck LeCorgne, the general manager of the Lincoln restaurant. She began work at
West Des Moines in mid-February 2003.
Ryburn began making sexual advances toward her the first two weeks they
worked together. Ryburn winked and blew kisses at her daily. On March 21 and 30,
Ryburn slapped her on the buttocks. Ryburn also pulled on the badge attached to the
front of her belt. He did this at least twice a day.
Ryburn also made inappropriate comments. On March 28, he suggested that
he conduct a review of Brennemans work at her house, although reviews are
customarily done at the restaurant. On March 31, Brenneman asked him for an
envelope to mail a book to the corporate office. The envelope was too small. When
she told Ryburn this, he responded: pretend it was a condom and slip it on real soft.
On April 1, Brenneman was discussing with another server how expensive their
childrens dental bills were. They joked they wished they could have sex with the
dentist in exchange for their bills. Overhearing this, Ryburn asked if they could make
that arrangement with him. In yet another incident, Ryburn told Brenneman he
wanted to come to the restaurant after she closed to go over his expectations. On
April 5, he asked her how she was doing. When she said fine, Ryburn replied,
Mm-hmm, you are fine. He then asked her if she needed anything and slapped her
on the buttocks. On another occasion, Brenneman asked Ryburn if he could stab
a customer's ticket. He responded, Id love to stab you.
Brenneman first reported Ryburns behavior to her trainer, Chuck LeCorgne.
On April 2, LeCorgne visited West Des Moines to conduct a review of the restaurant.
Brenneman asked to speak to him later that day. He agreed; they met at another
restaurant. After informing LeCorgne about Ryburns behavior, he responded that
Ryburn and his wife had just had a baby and maybe [Ryburn] needed a little attention
and he was looking in the wrong place. LeCorgne also stated: Chris, youre a nicelooking
lady. You are fun-loving, energetic, and hes probably attracted to you that
way. LeCorgne said that he was there as a friend and not a representative of
Famous Daves, though he told Brenneman he would contact Famous Daves human
resources department. He also told her to see if this had happened to anyone else and
suggested she discuss her concerns with Ryburn or his immediate supervisor.
Additionally, LeCorgne told Brenneman that Famous Daves had a telephone hotline
she could call.
During the same conversation, Brenneman expressed to LeCorgne that she was
worried about repercussions. Another employee had told her that Ryburn put him
on an undesirable shift due to a scheduling change. A second employee had informed
Brenneman that Ryburn had a habit of rearranging employees schedules when he was
angry with them. After Brenneman met with LeCorgne, Ryburn continued to blow
kisses, wink at her, and make inappropriate comments.
On April 7, Brenneman called Famous Daves employee hotline. No one
answered; she hung up without leaving a message. She called again and left a
message with her name and telephone number. Brenneman also called LeCorgne,
who promised to get her the direct number for human resources. After these calls,
Brenneman went to work and talked to a co-manager about her concerns with Ryburn.
The co-manager relayed what Brenneman told him to Karen Schindler in the human
resources department. Within five to ten minutes, Schindler called Brenneman, who
described the incidents with Ryburn. According to Brenneman, Schindler replied that
his actions were blatant sexual harassment.
On April 14 the next time Ryburn was on duty Schindler traveled to West
Des Moines in order to investigate. Schindler told Brenneman not to go to work that
day. That morning, Schindler called and asked if Brenneman wanted to meet with
Ryburn and her to discuss the situation. Brenneman said she wanted Schindler to
meet with Ryburn first. Brenneman spoke to Schindler again later that day. Schindler
stated that Ryburn had admitted some of the allegations. She again asked whether
Brenneman would meet with Ryburn and her to work out a new schedule. Later that
evening, Schindler called Brenneman to say that she wanted to resolve the situation.
Schindler asked Brenneman if she still wanted to work for Famous Daves.
Brenneman stated she was unsure and wanted to talk to her husband first. Schindler
informed her that Famous Daves could move her to another restaurant in Des Moines.
Brenneman replied that she would call Schindler the next morning to discuss the
situation in more detail. Schindler also talked with Brennemans husband, offering
to meet with Brenneman without Ryburn present.
On April 15, Schindler tried to contact Brenneman several times, leaving
messages. Brenneman did not answer or return the calls. Brenneman testified that she
was not ready to talk with Schindler and felt emotionally let down because the
situation with Ryburn wasnt taken care of. Later that day, Brennemans lawyer
called the human resources director to say she was resigning. Brenneman also
emailed a letter to the director, confirming the resignation.
2The Iowa Civil Rights Act, Iowa Code Chapter 216.6(1), has a similar
provision which mirrors federal law, so our discussion of [Brennemans] Title VII
claim applies equally to her claim under the Iowa Civil Rights Act. Tenge v. Phillips
Modern Ag Co., 446 F.3d 903, 907 n.3 (8th Cir. 2006), citing Montgomery v. John
Deere & Co., 169 F.3d 556, 558 n.3 (8th Cir. 1999).
On April 18, the human resources director emailed Brenneman inviting her to
return to work. On April 21, Ryburn sent her a letter apologizing for his behavior and
also inviting her to return. Specifically, Ryburn wrote that he would do everything
possible to ensure you feel comfortable coming back to work at Famous Daves. On
April 24, the human resources director again wrote Brenneman inviting her to return.
The letter stated that Famous Daves had instructed Ryburn to refrain from any
inappropriate behavior in the workplace. It also stated: Famous Daves does not
disclose to one employee the specific discipline it imposes on another employee, so
we cannot advise you of the specific discipline Mr. Ryburn received.
This court reviews de novo a grant of summary judgment, viewing the evidence
and drawing all inferences in the light most favorable to the non-moving party. Weger
v. City of Ladue, 500 F.3d 710, 718 (8th Cir. 2007). This court affirms if there is no
genuine issue of material fact, and the moving party is entitled to judgment as a matter
of law. Id.
Title VII prohibits employers from discriminating against any individual based
on sex with respect to their compensation, terms, conditions, or privileges of
employment. 42 U.S.C. 2000e-2(a)(1).2 Discrimination based on sex that creates
a hostile or abusive working environment violates Title VII. Weger, 500 F.3d at 718,
quoting Nitsche v. CEO of Osage Valley Elec. Coop., 446 F.3d 841, 845 (8th Cir.
2006). In order to make a prima facie case for hostile working environment based on
supervisor sexual harassment, the plaintiff must show that: (1) she belongs to a
protected group; (2) she was subject to unwelcome harassment; (3) a causal nexus
exists between the harassment and plaintiffs protected group status; and (4) the
harassment affected a term, condition, or privilege of her employment. Weger, 500
F.3d at 718.
The district court found that Brenneman established a prima facie case for
hostile working environment, focusing on whether the harassment affected a term,
condition, or privilege of her employment. To constitute a hostile work environment,
the harassment must be sufficiently severe or pervasive to alter the conditions of the
victims employment and create an abusive working environment. Gordon v. Shafer
Contracting Co., Inc., 469 F.3d 1191, 1195 (8th Cir. 2006), quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993). This court examines the totality of the
circumstances, looking at whether the discriminatory conduct was frequent and
severe; whether it was physically threatening or humiliating, as opposed to merely an
offensive utterance; and whether it unreasonably interfered with the employees work
performance. Nitsche, 446 F.3d at 846.
Viewing the facts most favorably to Brenneman, the district court did not err
in finding that she established a prima facie case against Ryburn. Ryburns conduct
started within the first two weeks of her employment at Famous Daves and persisted
throughout her entire employment, including offensive touching and humiliating
comments. A reasonable person could find that this environment was sufficiently
hostile to affect Brennemans working conditions. See Beard v. Flying J, Inc., 266
F.3d 792, 798 (8th Cir. 2001) (finding harassment to be severe and pervasive when
over a three-week period plaintiff was subjected to numerous incidents in which her
breasts were touched).
3Brenneman and amicus EEOC assert that the Supreme Court has overruled this
circuits requirement that the plaintiff demonstrate the employers intent, or the
reasonably foreseeability, that the employee quit. See Pa. State Police v. Suders, 542
U.S. 129, 134, 147 (2004). Because Brenneman does not show that the working
In cases of supervisor harassment, the employer is vicariously liable unless the
employer demonstrates that it is entitled to the Ellerth-Faragher affirmative defense.
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of
Boca Raton, 524 U.S. 775, 807-08 (1998). This affirmative defense is unavailable if
the employee suffers a tangible employment action. Id. at 808; Ellerth, 524 U.S. at
765. A tangible employment action is a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits. Ellerth, 524
U.S. at 761. If there is no tangible employment action, the employer may assert the
affirmative defense. Ellerth, 524 U.S. at 765.
Brenneman argues she suffered a tangible employment action because she was
constructively discharged from Famous Daves. Constructive discharge occurs when
an employer deliberately renders the employees working conditions intolerable,
thereby forcing her to quit. Tatum v. Ark. Dept of Health, 411 F.3d 955, 960 (8th
Cir. 2005). To prove constructive discharge, a plaintiff must demonstrate that: (1)
a reasonable person in her situation would find the working conditions intolerable and
(2) the employer . . . intended to force the employee to quit. Id., citing Gartman v.
Gencorp Inc., 120 F.3d 127, 130 (8th Cir. 1997). If the plaintiff cannot show that the
employer intended to force her to quit, she can still prevail if the employer . . . could
have reasonably foreseen that the employee would [quit] as a result of its actions.
Wright v. Rolette County, 417 F.3d 879, 886 (8th Cir. 2005), quoting Fenney v.
Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 717 (8th Cir. 2003).3 A reasonable
conditions were so intolerable that a reasonable person would have felt compelled to
quit, this court need not address this assertion.
employee has an obligation not to assume the worst and not to jump to conclusions
too quickly. An employee who quits without giving [her] employer a reasonable
chance to work out a problem has not been constructively discharged. Duncan v.
Gen. Motors Corp., 300 F.3d 928, 935 (8th Cir. 2002), quoting Summit v. S-B Power
Tool, 121 F.3d 416, 421 (8th Cir. 1997).
Here, Brenneman was not constructively discharged. A reasonable person in
her position would not have found the working conditions so intolerable that she was
compelled to resign. See Pa. State Police v. Suders, 542 U.S. 129, 147 (2004);
compare Van Steenburgh v. Rival Co., 171 F.3d 1155, 1160 (8th Cir. 1999) (working
conditions were intolerable where there was a five-year pattern of harassment that
included sexual propositions, physical touching, and serious threats of retaliation, and
the employer failed to remedy the problem after formal complaints were made).
Famous Daves was investigating, proposing solutions (a new schedule or relocation),
and continuing to invite Brenneman back after she resigned. In sum, she could have
taken steps short of resignation to improve her working conditions, but she declined
to do so. Duncan, 300 F.3d at 936. Brenneman asserts she thought the investigation
was complete and no action would be taken against Ryburn. This is, however,
contrary to her obligation not to assume the worst and not to jump to conclusions too
quickly. See Phillips v. Taco Bell Corp., 156 F.3d 884, 890 (8th Cir. 1998). Because
Brenneman was not constructively discharged, she did not suffer a tangible
employment action.
Because Brenneman did not suffer a tangible employment action, Famous
Daves may assert the Ellerth-Faragher affirmative defense. See Ellerth, 524 U.S.
at 765; Faragher, 524 U.S. at 807. This affirmative defense has two elements: (1) the
employer exercised reasonable care to prevent and correct promptly any sexually
harassing behavior and (2) the employee unreasonably failed to take advantage of any
preventative or corrective opportunities provided by the employer or to otherwise
avoid harm. Id.; Ellerth, 524 U.S. at 765.
The first element has two prongs: prevention and correction. See Weger, 500
F.3d at 719. Under the prevention prong, the employer must have exercised
reasonable care to prevent sexual harassment. Id. Under the correction prong, the
employer must have promptly corrected any sexual harassment that occurred. Id.
Famous Daves demonstrated that it exercised reasonable care to prevent sexual
harassment. It has a facially valid anti-harassment policy, with a non-retaliation
provision and a flexible reporting procedure, listing four individuals who may be
contacted in the case of harassment. Although having an anti-harassment policy is not
in itself enough to show that Famous Daves exercised reasonable care, distribution
of a valid policy provides compelling but not dispositive proof of preventing
sexual harassment. See id.; Varner v. Natl Super Mkts., Inc., 94 F.3d 1209, 1213
(8th Cir. 1996). Most importantly, Brenneman received training specifically about the
policy. See Williams v. Mo. Dept of Mental Health, 407 F.3d 972, 977 (8th Cir.
2005). Although it is disputed whether Ryburn received similar training, Famous
Daves still had an effective policy in place. While Brenneman criticizes LeCorgnes
less than ideal actions after their meeting on April 2, Brenneman testified that he did
tell her about the 1-800 hotline. When Brenneman invoked the hotline and the policy,
she received an immediate response from Famous Daves.
Additionally, Famous Daves meets the correction prong. When the harassment
was reported, Famous Daves sent Schindler to investigate and stop the harassment.
Moreover, Schindler attempted to work out a new schedule with Brenneman and
offered to relocate her to a restaurant five miles away. Though transferring
Brenneman, instead of Ryburn, is not ideal, Famous Daves has satisfied the
correction prong. See Weger, 500 F.3d at 723, citing Farley v. Am. Cast Iron Pipe
Co., 115 F.3d 1548, 1555 (11th Cir. 1997) (Although [an employee] remains
unsatisfied with [her employers] resolution of her complaint, we have never stated
. . . that a complainant in a discrimination action has a right to the remedy of her
choice.). Famous Daves satisfies the first element of the defense.
Famous Daves also satisfies the second element of the defense. While
Brenneman did not unreasonably fail to take advantage of any preventative
opportunities, she did unreasonably fail to take advantage of corrective opportunities.
Her failure to take advantage of Schindlers assistance was unreasonable. See
Duncan, 300 F.3d at 935 (a reasonable employee has an obligation to give the
employer a chance to work problems out). Brenneman tries to justify not cooperating
with Schindler, claiming she feared repercussions from Ryburn. This excuse is
unreasonable here where Schindler, a corporate human resources officer, appeared to
any reasonable observer to be in charge of the situation and superior to Ryburn.
Morever, the policy expressly contained an anti-retaliation provision. See Weger, 500
F.3d at 725 (Furthermore, the reasonableness of Plaintiffs fears of retaliation is
further called into question because the Departments antiharassment policy contained
an antiretaliation provision.).
Brenneman asserts that Famous Daves unlawfully retaliated against her by
constructively discharging her. Title VII prohibits retaliation against employees who
allege or participate in a proceeding or investigation that claims their employer
violated Title VII. 42 U.S.C. 2000e-3(a). A prima facie case of retaliation requires
showing that: (1) the employee engaged in protected conduct; (2) reasonable
employees would have found the challenged retaliatory action materially adverse; and
(3) the materially adverse action was causally linked to the protected conduct. Weger,
500 F.3d at 726, citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. __, 126
S. Ct. 2405, 2415 (2006). The materially adverse element is objective. Id. A court
must consider whether a reasonable employee would have found the challenged
action materially adverse, . . . [whether] it . . . might have dissuaded a reasonable
worker from making or supporting a charge of discrimination. Id. Brenneman
cannot make a prima facie case of retaliation because, as discussed, she was not
constructively discharged.
The judgment of the district court is affirmed.


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