United States Court of Appeals

For the Eighth Circuit

___________________________

No. 15-1787

___________________________

Denise Blomker

lllllllllllllllllllll Plaintiff - Appellant

v.

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

lllllllllllllllllllll Defendant - Appellee

____________

Appeal from United States District Court 

for the District of Minnesota - Minneapolis

____________

 Submitted: April 11, 2016

 Filed: August 5, 2016 

____________

Before LOKEN, BEAM, and SMITH, Circuit Judges.

____________

SMITH, Circuit Judge.

Denise Blomker appeals the district court's dismissal under Federal Rule of 1

Civil Procedure 12(b) of her pro se complaint alleging a sexual harassment claim

The Honorable JohnR. Tunheim, Chief Judge, United States DistrictCourt for

1

the District of Minnesota. 
based on hostile work environment and a retaliation claim against her employer, the

Department of the Interior ("Department"). We affirm.

I. Background

We accept as true the factual allegations in Blomker's pro se complaint at this

stage of the proceedings. See Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 591 (8th

Cir. 2009). 

Blomker worked for more than four years at the Department as a secretary in

the Migratory Birds Division of the U.S. Fish and Wildlife Service. The Department

informed Blomker of its intent to terminate her on April 10, 2014. According to the

Department's letter, Blomker's termination was based on Blomker (1) calling her

supervisor "a god-d***ed f***ing liar" and grabbing a supervisor's arm and twisting

it, (2) stating that she would send copies of e-mails in her possession to the Equal

Employment Opportunity Commission (EEOC) and the court, and (3) copying

unnecessary people on e-mails after repeated warnings to cease doing so. Blomker

was terminated on May 8, 2014.

Blomker filed a pro se complaint against the Department, alleging, inter alia, 

a sexual harassment claim based on hostile work environment and a retaliation claim

against the Department. In support of her sexual harassment claim based on hostile

2

work environment, Blomker alleges seven incidents of harassment by two different

men over a nearly three-year period. They are as follows:

Blomker indicated in her complaint thatshe was alleging discrimination based

2

on six different protected classes, retaliation, and sexual harassment. The district

court construed her complaint as stating three causes of action: disability

discrimination, sexual harassment, and retaliation. Only the sexual harassment and

retaliation claims are at issue in this appeal. 

-2-
(1) On February 24, 2010, Blomker's coworker, Tom Will, "moved his

finger toward [a] button [on Blomker'sshirt] and stopped approximately

three inches from putting his finger between [her] breasts." Will then

said, with "a smirk on his lips," "I can put a button right there."

(2) On September 9, 2010, Will called out Blomker's name. "As he came

toward [Blomker,] [she] noticed he was sexually aroused (having an

erection)." With "a smirk on his face," Will "walked up and stood

extremely close to [Blomker] that [she] stepped back from him." 

(3) "On several occasions" during February and March 2010, Will, with "a

smirk on his face," (a) "walked over to the candy basket on the window

sill, picked it up, swung the candy basket[,] and then . . . picked up the

candy that had fallen onto the floor and put it back into the candy

basket"; and (b) "[d]ug into the plastic container of candy, moving the

candy about and making extra noise while he was playing with the

candy." Blomker believed that Will engaged in this conduct to get her

attention. 

(4) On December 7, 2010, Will "walked up behind [Blomker] and stood

extremely close." According to Blomker, had she "back[ed] up a couple

of inches, [she] would have bumped into [Will]."

(5) On April 14, 2011, Will was on his cell phone outside of Blomker's

cubicle and briefly blocked her from exiting her cubicle. 

(6) On both November 19 2012, and December 6, 2012, Blomker's

coworker, Richard Rottman, who sat in the cubicle adjacent to Blomker,

"was picking at the seam located in the crotch of his pants—his legs

spread apart 180 degrees while [Blomker] was having a conversation

with him."

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

Blomker.

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Blomker characterizes these incidents as "attacks" and "solicitations." She alleges that

management at the Department "turned their [sic] backs on me, refused twice

accommodations to help alleviate my visual and physical contact with the two

perpetrators. I believe this to be a result of the EEO complaints I have made and

subsequent filing with the District Court."

With regard to her retaliation claim, Blomker cites several situations that she

alleges constitute retaliation based on her reporting discrimination. The district court

accurately summarized these situations as follows:

1) her work performance or work attendance was criticized and she feels

that she has been unnecessarily blamed and criticized at work (see, e.g.,

[Complaint] ¶¶ 18–20, 22–26, 29, 30, 32, 37–42, 44A, 44C–D, 45–50,

53, 54, 59, 61, 65, 66, 68, 70–72, 75, 78–82, 84, 85, 87, 89);

2) she was not kept up-to-date on office news or invited to office events

(see, e.g., id. ¶¶ 19, 34, 55–57, 59, 60);

3) there was poor communication between her and her coworkers and

supervisors (see, e.g., id. ¶¶ 18, 19, 24, 34, 41, 44D, 52, 54, 63, 67, 83);

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

58, 73);

5) her coworkers sometimes did her job, especially when she was away

from the office (see, e.g., id. ¶¶ 44D, 44E, 44G, 56, 62, 63, 83, 88);

6)she had antagonistic relationships with her bosses(see, e.g., id. ¶¶ 19,

23, 27, 29, 44B, 44D, 53, 54, 67–69, 75, 77, 78, 83, 91);

7) she did not receive a raise and was not permitted to take classes (see,

e.g., id. ¶¶ 32, 33, 35, 76, 77); and

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

(Footnote omitted.)

The Department filed a Rule 12(b) motion to dismiss Blomker's complaint on

the basis that Blomker failed to adequately exhaust her administrative remedies. It

also argued that she could not state a claim for discrimination or retaliation. The

district court expressly declined to decide the exhaustion issue, finding only that

Blomker could not state a claim for discrimination or retaliation. Blomker appeals.

II. Discussion

Blomker argues that the district court erred in dismissing her sexual harassment

and retaliation claims because she has set forth sufficient allegations to support both

claims. We review de novo a district court's dismissal of a complaint based upon Rule

12(b)(6), "taking the facts alleged in the complaint astrue." Bradley Timberland Res.

v. Bradley Lumber Co., 712 F.3d 401, 406 (8th Cir. 2013) (citation omitted). 

"To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to 'state a claim to relief that is plausible on its face.'"

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). A plaintiff's claim is facially plausible where "the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the

defendant isliable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556).

"The plausibility standard . . . asks for more than a sheer possibility that a defendant

has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556).

"In Swierkiewicz v. Sorema, 534 U.S. 506, 122 S. Ct. 992, 152 L. Ed. 2d 1

(2002), the Supreme Court negated any need to plead a prima facie case in the

discrimination context and emphasized that the prima facie model is an evidentiary,

-5-
not a pleading, standard." Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 53 (1st

Cir. 2013) (citing Swierkiewicz, 534 U.S. at 510, 512). Under Swierkiewicz, "[i]t is

not necessary to plead facts sufficient to establish a prima facie case at the pleading

stage." Id. at 54 (citing Swierkiewicz, 534 U.S. at 512). "The prima facie standard is

an evidentiary standard, not a pleading standard, and there is no need to set forth a

detailed evidentiary proffer in a complaint." Id. 

However, "elements of the prima facie case are [not] irrelevant to a plausibility

determination in a discrimination suit." Id. Instead, such "elements are part of the

background against which a plausibility determination should bemade." Id. (citations

omitted). In summary, "the elements of a prima facie case may be used as a prism to

shed light upon the plausibility of the claim." Id. As we have previously explained:

[A] plaintiff must assert facts that affirmatively and plausibly suggest

that the pleader has the right he claims . . . , rather than facts that are

merely consistent with such a right. While a plaintiff need not set forth

detailed factual allegations or specific facts that describe the evidence

to be presented,the complaint must include sufficient factual allegations

to provide the grounds on which the claim rests. A district court,

therefore, is not required to divine the litigant's intent and create claims

that are not clearly raised, and it need not conjure up unpled allegations

to save a complaint.

Gregory v. Dillard's, Inc., 565 F.3d 464, 473 (8th Cir. 2009) (en banc) (alteration in

original) (emphasis added) (quotations and citations omitted). 

-6-
Does Blomker's complaintset forth sufficient factual allegations to provide the

grounds upon which her sexual harassment claim based on hostile work environment

and retaliation claim rest? We conclude that it does not.3

A. Sexual Harassment Claim Based on Hostile Work Environment

To establish the elements of a sexual harassment claim based on a hostile

environment, a plaintiff must show that: (1) she belongs to a protected group; (2) she

was subject to unwelcome sexual harassment; (3) the harassment was based on sex;

(4) the harassment affected a term, condition, or privilege of employment; and (5) the

employer knew or should have known of the harassment and failed to take proper

remedial action. Schmedding v. Tnemec Co., 187 F.3d 862, 864 (8th Cir. 1999). 

"The fourth element involves both objective and subjective components."

Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 801 (8th Cir. 2009) (citation

omitted). It requires that "[t]he harassment . . . be 'severe or pervasive enough to

create an objectively hostile or abusive work environment' and the victim must

subjectively believe her working conditions have been altered." Id. (quoting Harris

v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).

"The Supreme Court has cautioned courts to be alert for workplace behavior

that does not rise to the level of actionable harassment." Al-Zubaidy v. TEK Indus.,

Inc., 406 F.3d 1030, 1038 (8th Cir. 2005). For that reason, 

[t]he standards for a hostile environment are demanding, and "conduct

must be extreme and not merely rude or unpleasant to affect the terms

and conditions of employment." Alagna v. Smithville R-II Sch. Dist., 324

F.3d 975, 980 (8th Cir. 2003). When evaluating a hostile environment,

Because we conclude that Blomker failed to state a claim for sexual 3

harassment or retaliation, we need not address the exhaustion issue. 

-7-
we look at the totality of the circumstances, "including the frequency

and severity of the discriminatory conduct, whether such conduct was

physically threatening or humiliating, as opposed to a mere offensive

utterance, and whether the conduct unreasonably interfered with the

employee's work performance." Vajdl [v. Mesabi Acad. of KidsPeace,

Inc.], 484 F.3d [546,] 551 [(8th Cir. 2007)].

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

"More than a few isolated incidents are required," and the alleged harassment

must be "so intimidating, offensive, or hostile that it poisoned thework environment."

Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 967 (8th Cir. 1999) (quotation and citations

omitted). "The [Supreme] Court often has made the point thatsimple teasing, offhand

comments, and isolated incidents (unless extremely serious) will not amount to

discriminatory changes in the terms and conditions of employment." Al-Zubaidy, 406

F.3d at 1039 (quotations and citations omitted). In fact, the Supreme "Court implores

lower courts to apply the demanding harassment standards to filter out complaints

attacking the ordinary tribulations of the workplace, such as the sporadic use of

abusive language, gender-related jokes, and occasional teasing." Id.(emphasis added)

(quotations and citation omitted). 

Accepting astrue the factual allegations contained in Blomker's complaint and

granting her the benefit of all reasonable inferences that can be drawn from those

allegations, see Lustgraaf v. Behrens, 619 F.3d 867, 872–73 (8th Cir. 2010), we find,

as a matter of law, that the facts alleged in Blomker's complaint fail to show

harassment so severe or pervasive that they satisfy the high threshold for a sexual

harassment claim based on hostile work environment. In other words, we find that

-8-
Blomker has failed to set forth "sufficient factual allegations" that entitle her to relief.

See Gregory, 565 F.3d at 473.

4

Both our sister circuits and district courts within this circuit have similarly

4

dismissed hostile work environment claims, some based on sexual harassment, for

failure to state a claim under Rule 12(b)(6). See, e.g., Littlejohn v. City of New York,

795 F.3d 297 (2d Cir. 2015) (holding that allegations that African-American

employee's supervisor at city agency made negative statements about employee to

another supervisor, distanced herself from employee when she was nearby, declined

to meet with employee, and wrongfully reprimanded employee were insufficient to

allege racial discrimination that was so severe or pervasive that it created an abusive

work environment and altered conditions of her employment, asrequired to establish

a hostile work environment); Pittman v. Bob, 520 F. App'x 101, 102 (3d Cir. 2013)

(unpublished per curiam) (holding that allegations that foreman for employment

agency's client, who was allegedly homosexual, asked employee if he was alright as

employee was going on break, that foreman stood in an "uncomfortable" proximity

to employee while performing job, and that, after summoning other workers to help

employee with task, foreman placed his hands on employee's shoulders and said

"You're lucky I like you," and "I like you because you're so big," did not state claim

for hostile work environment, where conduct was not so severe or pervasive as to

alter terms of employment or create abusive environment); Wadhwa v. Sec'y, Dep't

of Veterans Affairs, 505 F. App'x 209, 213 (3d Cir. 2012) (unpublished per curiam)

(holding that a single complaint made by nurse about performance of federal

employee over period of five months was insufficient to constitute pervasive and

regular behaviorrequired to sustain Title VII hostile work environment claim); Ruddy

v. U.S. Postal Serv., 455 F. App'x 279, 284 (3d Cir. 2011) (unpublished) (holding that

United States Postal Service employee's supervisors' alleged conduct in telling

employee that he was to work faster and leave the office earlier did not amount to a

hostile work environment based on employee's age and disability because such

conduct was not severe or pervasive); Griffey v. Daviess/DeKalb Cty. Reg'l Jail, No.

10-06099-CV-SJ-DGK, 2012 WL 10881, at *5 (W.D. Mo. Jan. 3, 2012) (holding that

plaintiff failed to state a claim for hostile work environment because the plaintiff did

not "establish[] that the harassment was so severe and pervasive to be legally

actionable under both an objective and subjective standard"); Sullivan-Robinson v.

Ark. Parole Bd., No. 4:11CV00140 SWW, 2011 WL 3235904, at *4 (E.D. Ark. July

28, 2011) ("Here, plaintiff alleges Wallace made inappropriate statementsto her three

-9-
As the district court noted, although the behavior alleged "might have been vile

or inappropriate, the facts alleged in the complaint do not rise to the level of

actionable sexual harassment." As noted supra, the seven alleged incidents spanned

nearly a three-year period by two different men. See Duncan v. Gen. Motors Corp.,

300 F.3d 928, 934–35 (8th Cir. 2002) (reversing a million dollar judgment awarded

to a plaintiff and determining, as a matter of law, that plaintiff failed to show severe

or pervasive sexual harassment based on five harassing incidents over a two-year

period: a proposition for a relationship; improper touching of the plaintiff's hand on

multiple occasions; a request the plaintiffsketch a sexually objectionable planter; the

posting of a "Man Hater's Club" poster; and a request the plaintiff "type the He–Men

Women Haters beliefs"). 

Furthermore, none ofthe alleged incidents involved actual touching.And some

of the allegations, such as Will playing with candy, are not definitively sexual in

nature based on the facts alleged. "Numerous cases have rejected hostile work

environment claims premised upon facts equally or more egregious than the conduct

at issue here." Id. (citations omitted); see also McMiller v. Metro, 738 F.3d 185, 188

(8th Cir. 2013) (holding that male supervisor's inappropriate behavior toward female

state employee was not sufficiently severe or pervasive so as to alter terms and

conditions of her employment where supervisor kissed employee on two occasions,

placed his arms around her or attempted to do so three times, and requested that she

remove an ingrown hair near his chin); Anderson v. Family Dollar Stores of Ark.,

times over a two-week period. She also alleges that at a later date she overheard two

additional offensive comments Wallace made to another employee. The Court finds

as a matter of law that these allegations, while establishing conduct that was

offensive, unprofessional, and boorish, fail to state a claim of hostile environment

sexual harassment."). 

-10-
Inc., 579 F.3d 858, 862 (8th Cir. 2009) (holding evidence insufficient to establish a

hostile work environment claim where supervisor rubbed employee's back and

shoulders, called her "baby doll," "accus[ed] her of not wanting to be 'one of [his]

girls,'" suggested in a long-distance phone call "that she should be in bed with him,"

and "insinuat[ed] that she could go farther in the company if she got along with

him"); LeGrand v. Area Res. for Cmty. & Human Servs., 394 F.3d 1098, 1100–03

(8th Cir. 2005) (holding that a plaintiff who asserted that a harasser asked him to

watch pornographic movies and to masturbate together, suggested that the plaintiff

would advance professionally if the plaintiff caused the harasser to orgasm, kissed the

plaintiff on the mouth, "grabbed" the plaintiff's buttocks, "brush[ed]" the plaintiff's

groin, "reached for" the plaintiff's genitals, and "briefly gripped" the plaintiff's thigh,

had not established actionable harassment); Ottman v. City ofIndependence, 341 F.3d

751, 760 (8th Cir. 2003) (concluding the district court erred in finding a triable issue

for the jury where the conduct consisted of belittling and sexist remarks on almost a

daily basis over a four-year period); Alagna, 324 F.3d at 977–79, 980 (concluding the

coworker's conduct wasinappropriate, but not sufficiently severe or pervasive where

it included callsto the plaintiff's home, frequent visitsto her office, discussions about

relationships (not including sexual details) with his wife and other women, touching

the plaintiff's arm, saying he "loved" her and she was "very special," placing romance

novels in her faculty mailbox, and invading her personal space). 

For these reasons, we affirm the district court's dismissal of Blomker's claim

of hostile work environment based on sexual harassment. 

B. Retaliation

We now turn to Blomker's retaliation claim. Title VII makes it an unlawful

employment practice for an employer to discriminate against its employees for

opposing any unlawful employment practice. 42 U.S.C. § 2000e–3(a); see also

Guimaraes v. SuperValu, Inc., 674 F.3d 962, 977 (8th Cir. 2012). We apply the

-11-
retaliation provisions of § 2000e–3(a) broadly to cover opposition to employment

actions that are not unlawful, as long as the employee acted with a good faith,

objectively reasonable belief that the practices were unlawful. Guimaraes, 674 F.3d

at 977–78.

"[R]etaliation must be the 'but for' cause of the adverse employment action."

Jackman v. Fifth Judicial Dist. Dep't of Corr. Servs., 728 F.3d 800, 804 (8th Cir.

2013) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013)

("The text, structure, and history of Title VII demonstrate that a plaintiff making a

retaliation claim under § 2000–3(a) must establish that his or her protected activity

was a but-for cause of the alleged adverse action by the employer.")). 

Unlike Title VII discrimination claims, however, for an adverse

retaliatory action to be "because" a plaintiff made a charge, the plaintiff

must plausibly allege that the retaliation was a "but-for" cause of the

employer's adverse action. See [Nassar, 133 S. Ct. at 2533]. It is not

enough that retaliation was a "substantial" or "motivating" factor in the

employer's decision. See id.

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

(emphasis added). 

Here, Blomker points to four "specifications" from the Department's letter of

removal—which she attached as an exhibit to her complaint—that she argues

constitute direct evidence of retaliation, establishing a causal nexus between her

protected activity and the materially adverse actions alleged in her complaint. Two

of the these specifications mention her intent to file an EEO complaint.

Nonetheless, we find that Blomker's purported "direct evidence" of retaliation

fails as a matter of law for lack of causation. Blomker has failed to "plausibly allege

-12-
that the retaliation was a 'but-for' cause of [the Department's] adverse action." See id.

This is becauseBlomker attached to her complaint the Department'sletter ofremoval,

which sets forth her reasons for termination. As the Department points out, while the

aforementioned "specifications" in the letter of removal "demonstrate[] . . . that her

threats [to file an EEO complaint and lawsuit] may have motivated the Department

(at least in part) to discharge her," that letter also includes other "specifications"

unrelated to any protected activity. These "specifications" include: (1) calling her

supervisor a "god-d***ed f***ing liar" and grabbing and twisting her forearm, and

(2) not complying with her supervisor's directive to stop copying people beyond the

scope of a discussion with her supervisor. In the "Reason for Proposing Removal" in

the letter of removal, the Department characterized the nature of Blomker's

misconduct as "serious," focusing exclusively on her assault upon her supervisor. The

letter provides, in relevant part:

Under no circumstance should an employee engage in unwelcome

physical contact with a supervisor. There is no indication that Ms. Jones

touched you; rather, she had to use her arm/finger to reestablish her

personal space since you were uncomfortably close. Under those

circumstances, you not liking Ms. Jones pointing her finger at you does

not warrant your grabbing her arm and/or twisting it. Further, it is

evident that you and Ms. Jones have a contentious supervisor-employee

relationship, yet it appears you took measures to create that

confrontation on March 25, 2014, by rushing to get in the elevator car

with Ms. Jones. Such aggressive behavior on your part is contrary to

statements you have made recently regarding your fear of being in

meetings with your supervisor or other Division or Service staff without

the presence of a police officer or security guard. Video footage from

the lobby ofthe Regional Office clearly showed how quickly you moved

to put yourself in a confined space (elevator) with your supervisor,

strongly suggesting you wanted the confrontation. Ms. Jones was

distraught and intimidated after the incident. The incident was disruptive

to the workplace, resulting in shouting and yelling heard by a number of

employees within the work area, a work area that included the elevator

-13-
lobby (a public area), your cubicle, and the connecting hallways (a

minimumof at least 75 feet past multiple offices and a conference room.

Due to the seriousness of that incident, immediately thereafter you were

placed and have remained on administrative leave. 

(Emphases added.) The letter also cited Blomker's past disciplinary record: a letter

of reprimand on March 21, 2013, for inappropriate conduct and a seven-day

5

suspension from February 2, 2014, through February 8, 2014, for inappropriate

conduct and failure to follow a supervisory directive.6

Blomker'sinclusion of the letter ofremoval in her complaintshows, on its face,

that Blomker's protected activity was not a but-for cause of the alleged adverse action

by the Department. We therefore affirm the district court's dismissal of Blomker's

retaliation claim. 

Specifically, Blomker was reprimanded for "raising [her] voice to [her] 5

supervisor, ignoring and walking away from [her] supervisor during a conversation,

and raising [her] voice in a discourteous and disrespectful manner in the open

workplace."

This suspension was based, in part, on Blomker's 6

failure to follow a supervisory directive related to when [she] again

copied Mr. Wooley and Mr. Melius on an email to employees with the

Federal Executive Board (FEB) of Minnesota notifying themyou would

be resigning from the FEB Diversity Council after being ordered on

December 23, 2013, to cease and desist copying people on emails

beyond the scope of a discussion unless they specifically asked to be

copied.

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III. Conclusion

Accordingly, we affirm the judgment of the district court. 

BEAM, Circuit Judge, dissenting.

The Department of the Interior has litigated Blomker's sexual harassment and

retaliation action as though it was being decided on a motion for summary judgment

rather than based upon the Rule 12(b) dismissal motion before the court. The district

court continued this course of action, and in my view, improvidently dismissed the

case. Accordingly, I respectfully dissent. 

We review de novo a district court's dismissal of a complaint based upon Rule

12(b)(6), granting all reasonable inferencesin favor of the nonmoving party. Bradley

Timberland Res. v. Bradley Lumber Co., 712 F.3d 401, 406 (8th Cir. 2013). To

establish the elements of a sexual harassment claim based on a hostile environment,

a plaintiff must show that: (1) she belongs to a protected group; (2) she was subject

to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the

harassment affected a term, condition, or privilege of employment; and (5) the

employer knew or should have known of the harassment and failed to take proper

remedial action. Schmedding v. Tnemec Co., 187 F.3d 862, 864 (8th Cir. 1999). 

Furthermore, Title VII makes it an unlawful employment practice for an employer to

discriminate against its employees for opposing any unlawful employment practice. 

42 U.S.C. § 2000e-3(a); Guimaraes v. SuperValu, Inc., 674 F.3d 962, 977 (8th Cir.

2012). We apply the retaliation provisions of § 2000e-3(a) broadly to cover

opposition to employment actions that are not unlawful, as long as the employee

acted with a good faith, objectively reasonable belief that the practices were unlawful. 

Guimaraes, 674 F.3d at 977-78.

At this stage of the proceedings, Blomker has satisfied her burden to plausibly

plead hostile environment sexual harassment and retaliation. Ashcroft v. Iqbal, 556

-15-
U.S. 662, 678 (2009) (standard). Blomker plausibly alleges that she was subject to

unwelcome sexual advances and other harassing conduct by the offending coworkers. 

These allegations are sufficient at the motion-to-dismiss level. In its briefing, the

Department cites us no sexual harassment cases that were dismissed at the Rule

12(b)(6) stage, and the court's citation to a few mostly unpublished opinionsfrom our

"sister" circuits and district courts does not convince me that Rule 12(b) dismissal

was appropriate in this particular case. And the suggestion that dismissal is

appropriate because none of the incidents involve "actual touching" or conduct

"definitively sexual in nature," ante at 10, is both legally unsupportable and sets a

dangerous precedent for sexual harassment plaintiffs. See, e.g., Tang v. Citizens

Bank, N.A., 821 F.3d 206, 216-17 (1st Cir. 2016) (noting that sexually harassing

conduct need not involve physical touching or conduct that is overtly sexual in

nature); Hall v. Gus Constr. Co., 842 F.2d 1010, 1014 (8th Cir. 1988) (seminal case

7

from our circuit setting forth the standard that conduct need not be "sexual in nature"

in order to support a sexual harassment claim). 

With regard to retaliation, Blomker clearly engaged in protected activity by

filing EEO complaints within her department and by filing this action. She was

denied a pay raise, suspended, and ultimately terminated within months of filing this

action in federal court. The district court found that she did not state a claim because

she could not establish causation. This was a premature determination on a Rule

12(b)(6) motion. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 91-92

Tang is particularly instructive as it involved a plaintiff who was initially pro

7

se, but is now represented by counsel, and involved four incidents that spanned the

course of just over one year. 821 F.3d at 211-214. The court found that it could

parse out the offending conduct (discussions of the word "ass" and Thai au pairs) and

find it to be harmlessin isolation, but at the summary judgment stage, this was not the

appropriate analysis. Id. at 216. Importantly, the court pointed out that "Title VII

requires no magic words to convert a verbal exchange into the stuff of sexual

harassment." Id. 

-16-
(2d Cir. 2015) (noting that plaintiff adequately and plausibly pleaded retaliation

claims under Title VII when, soon after filing a charge of racial discrimination, his

work duties changed, the district stopped communicating with him, and his pay was

temporarily reduced); Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 24-

25 (1st Cir. 2014) (reversing the Rule 12(b)(6) dismissal of a retaliation claim

because the plaintiff had plausibly alleged causation); see also Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 512 (2002) (holding that the employment discrimination

prima facie case is "a flexible evidentiary standard" not a "rigid pleading standard"). 

As an alternative ground, the Department argues that Blomker has not properly

exhausted her claims. In order for a federal employee to sue for discrimination under

Title VII, the employee must initiate contact with an agency EEO counselor "within

45 days of the date of the matter alleged to be discriminatory." 29 C.F.R. §

1614.105(a)(1); see West v. Gibson, 527 U.S. 212, 218-19 (1999) (holding that for

federal employees, Title VII is "a dispute resolution system that requires a

complaining party to pursue administrative relief prior to court action, thereby

encouraging quicker, lessformal, and less expensive resolution of disputes within the

Federal Government and outside of court"). Furthermore, a federal employee must

wait until resolution of the EEO claim within the agency, or wait until the claim has

been pending and unresolved for 180 days, before filing suit in court. 42 U.S.C. §

2000e-16(c).

However, failure to exhaust is an affirmative defense which must be proved

by the defendant. Miles v. Bellfontaine Habilitation Ctr., 481 F.3d 1106, 1107 (8th

Cir. 2007) (per curiam) (holding that because the plaintiff stated in her form pro se

complaint that she filed a charge with the EEOC and attached her right-to-sue letter,

the district court improperly dismissed the complaint for failure to exhaust). In her

complaint, Blomker alleges thatshe has filed numerous EEO complaints, and thatshe

has requested a copy of her right-to-sue letter but has not yet received it. Generally

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attaching the right-to-sue letter is a precondition to filing suit, but it is one that may

be remedied after suit has been filed. Jones v. Am. State Bank, 857 F.2d 494, 499-

500 (8th Cir. 1988) (holding that receipt of a right-to-sue letter is a condition

precedent to filing, but curable after the action had been commenced). Because the

exhaustion issue was not decided by the district court and is unclear from the sparse

record before us, I would reverse and remand so that the parties may litigate whether

Blomker has exhausted her administrative remedies under the rubric set forth for

federal agency employees. If she has, I believe Blomker should be allowed to litigate

her Title VII harassment and retaliation claims.8

______________________________

My review of the record indicates that the district court correctly dismissed

8

Blomker's disability discrimination claim. Blomker's allegations with regard to an

alleged disability are sparse and lack plausibility. Nor does Blomker press the

disability claim in her briefing. 

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