1

The Honorable Charles R. Wolle, United States District Judge for the Southern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-2465

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Tammy Powell, *

*

Appellant, *

* Appeal from the United States 

v. * District Court for the

* Southern District of Iowa.

Yellow Book USA, Inc.; *

Victoria Kreutz, *

*

Appellees. *

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Submitted: January 9, 2006 

Filed: April 25, 2006

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Before WOLLMAN, JOHN R. GIBSON, and ARNOLD, Circuit Judges.

___________

ARNOLD, Circuit Judge.

After the district court1

 granted summary judgment to Yellow Book USA, Inc.,

and Victoria Kreutz (now Victoria Hammon) on all of Tammy Powell's employmentrelated claims, she appealed. We affirm.
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I.

Ms. Powell began her employment at Yellow Book as a data-entry processor.

After an interview, Yellow Book promoted her to a financial service representative.

In this new job she sat next to Ms. Kreutz. According to Ms. Powell, Ms. Kreutz

propositioned her for sex, sought to convert her to Ms. Kreutz's religion, and spiked

her beverage with methamphetamine. The day before a mediation session, Ms. Powell

emptied her desk and departed the office on FMLA leave. When she failed to return,

Yellow Book terminated her. 

Following her termination, Ms. Powell sued Yellow Book and Ms. Kreutz for

sexual harassment, religious harassment, and retaliation. Ms. Powell also claimed that

both defendants were liable under Iowa law for assault and battery because

Ms. Kreutz spiked Ms. Powell's Diet Pepsi. Finally, Ms. Powell made claims against

Ms. Kreutz individually for invasion of privacy and tortious interference with a

contractual relationship. The district court granted the defendants' motion for

summary judgment on all claims.

We review the grant of summary judgment de novo, applying the same

standards as the district court. Minnesota Citizens Concerned for Life, Inc. v. Kelley,

427 F.3d 1106, 1109 (8th Cir. 2005). Summary judgment is appropriate where there

is no genuine issue of material fact and the movants are entitled to judgment as a

matter of law. Id. In deciding a motion for summary judgment, the court must

consider all the evidence and the reasonable inferences that arise from it in the light

most favorable to the nonmoving party. Enterprise Bank v. Magna Bank., 92 F.3d

743, 747 (8th Cir. 1996). We may affirm the district court's grant of summary

judgment on any basis found in the record. Figg v. Russell, 433 F.3d 593, 597 (8th

Cir. 2006). We consider each of Ms. Powell's claims in turn. 
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II.

We turn first to Ms. Powell's claims for sexual harassment, religious

harassment, and retaliation against Yellow Book under Title VII and the Iowa Civil

Rights Act (ICRA). With respect to claims against employers under ICRA, Iowa

courts have traditionally used the analytical framework used for Title VII claims and

looked to federal law for guidance because ICRA is modeled in part on Title VII.

McElroy v. State, 703 N.W.2d 385, 391 (Iowa 2005); Hulme v. Barrett, 449 N.W.2d

629, 631 (Iowa 1989); Johnson v. University of Iowa, 431 F.3d 325, 332 (8th Cir.

2005). The following discussion therefore applies to Ms. Powell's harassment and

retaliation claims against Yellow Book under both Title VII and ICRA.

A.

Employers violate Title VII of the Civil Rights Act of 1964 if they commit,

abet, or condone discrimination based on sex or religion that results in a hostile work

environment. For Ms. Powell to make a prima facie case of harassment against

Yellow Book based on the conduct of Ms. Kreutz, a non-supervisory co-worker, there

must be evidence that Ms. Powell belongs to a protected group, that she was subjected

to unwelcome harassment, that the harassment occurred due to her protected group

status, that the harassment affected a term, condition, or privilege of her employment,

and that Yellow Book either knew or should have known of the harassment but failed

to take proper action. Reedy v. Quebecor Printing Eagle, Inc., 333 F.3d 906, 907-08

(8th Cir. 2003); see Palesch v. Missouri Comm'n on Human Rights, 233 F.3d 560, 566

(8th Cir. 2000).

Ms. Powell contends that Ms. Kreutz sexually harassed her at work. As

evidence, Ms. Powell points to several instances where Ms. Kreutz talked about her

(Ms. Kreutz's) sexual exploits outside the office, described particular fantasies that she

harbored concerning co-workers, and propositioned Ms. Powell for sex. Although

Ms. Kreutz admits that she did have sexual conversations around the office, she denies

ever soliciting Ms. Powell. For the purposes of summary judgment, we assume that
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such solicitations did occur. See Johnson v. University of Iowa, 431 F.3d 325, 329

(8th Cir. 2005).

Title VII's purpose is not to smooth the rough edges of our daily discourse, nor

to provide a federal cause of action for every slight. See, e.g., Oncale v. Sundowner

Offshore Servs. Inc., 523 U.S. 75, 80 (1998); Williams v. ConAgra Poultry Co.,

378 F.3d 790, 795 (8th Cir. 2004). To survive summary judgment, a plaintiff must

present evidence from which a reasonable jury could conclude that the harassment was

sufficiently "severe or pervasive" to affect a term, condition, or privilege of the

plaintiff's employment. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). In

judging whether a reasonable jury could find the harassment to be pervasive or severe

enough to alter the terms of employment, we look at the frequency with which the

purported harassment occurred, its severity, whether it was physically threatening or

humiliating, and the extent to which it interfered with the plaintiff's job performance.

Erenberg v. Methodist Hosp., 357 F.3d 787, 792 (8th Cir. 2004).

We conclude that the sexual harassment that Ms. Powell experienced was not

so severe or pervasive as to alter the terms of her employment. In other cases, we

have held that conduct more egregious than what is alleged to have occurred here

could not support a sexual harassment claim. For instance, in Duncan v. General

Motors Corp., 300 F.3d 928, 931 (8th Cir. 2002), cert. denied, 538 U.S. 994 (2003),

the plaintiff said that a fellow employee propositioned her for a "relationship." When

she declined, however, the fellow employee began to denigrate the plaintiff by asking

her to draw a sexually suggestive illustration for him and by portraying her on a poster

as the president of the "Man Hater's Club of America." Id. Although we found the

employee's behavior to be "boorish, chauvinistic, and decidedly immature," we

concluded that his conduct was not actionable. Id. at 935. In this case, Ms. Kreutz

made no attempt to belittle or otherwise retaliate against Ms. Powell when she

rebuffed the alleged advances. While good manners should have tempered the ribald
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nature of Yellow Book's office, the conduct that Ms. Powell complains of is simply

not sufficient to make out a sexual harassment claim.

B.

Soon after Ms. Powell moved to the cubicle next to hers, Ms. Kreutz

experienced a religious conversion. She eschewed drugs and alcohol, ultimately

becoming a parishioner at the First Assembly of God. Subsequent to her conversion,

Ms. Kreutz began to tell Ms. Powell about her religious beliefs. While Ms. Powell

was receptive at first, she later told Ms. Kreutz that she did not wish to discuss any

more religious matters.

Ms. Kreutz testified by deposition that she abided by Ms. Powell's wishes.

Some months later, however, Ms. Powell complained to Yellow Book management

about continued proselytizing by Ms. Kreutz. Yellow Book's manager of corporate

employer relations met with Ms. Kreutz and told her that she was not to broach

religious matters with Ms. Powell, either in person or through email. Ms. Powell also

complained of religious sayings that were posted in Ms. Kreutz's cubicle. Yellow

Book management reviewed the sayings, found that they did not violate company

policy, and therefore did not order their removal.

Despite Yellow Book's intervention with respect to the proselytizing,

Ms. Powell continued to feel aggrieved by Ms. Kreutz's religious outspokenness.

Over the course of two months, Ms. Powell complained to Yellow Book management

at least eight more times. Each time, according to Yellow Book management,

Ms. Powell confirmed that Ms. Kreutz was not talking to her or emailing her about

religious matters. But she still felt that the religious messages in Ms. Kreutz's cubicle

were inappropriate and distracting. Even when Yellow Book moved Ms. Powell away

from Ms. Kreutz's desk so that she would not be next to the religious sayings,

Ms. Powell continued to insist that Yellow Book order their removal. 
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The district court, after considering this evidence, granted the defendants'

motion for summary judgment on the religious harassment claim. "Once an employer

becomes aware of [harassing conduct], it must promptly take remedial action which

is reasonably calculated to end [it]." Kopp v. Samaritan Health Sys., Inc., 13 F.3d

264, 269 (8th Cir. 1993). It was undisputed that Yellow Book, upon learning of

Ms. Powell's complaints, promptly held a meeting with Ms. Kreutz and told her to

stop discussing religious matters with Ms. Powell. As a result, the court held that

Yellow Book's actions were prompt and proper. The court also concluded that Yellow

Book continued to monitor the situation to ensure that any improper conduct by

Ms. Kreutz did not resume.

Like the district court, we conclude that Yellow Book's response to

Ms. Powell's complaint was both prompt and reasonable. It is true that Ms. Powell

continued to complain to Yellow Book management, but in those complaints she

repeatedly confirmed that Ms. Kreutz was no longer discussing religious matters with

her and instead focused on Ms. Kreutz's religious postings. An employer, however,

has no legal obligation to suppress any and all religious expression merely because it

annoys a single employee. In addition to the reason given by the district court, we

believe that Ms. Powell's religious-harassment claim also fails because Ms. Kreutz's

communications to her about religion did not amount to severe or pervasive

harassment that altered the terms of her employment.

C.

After complaining to her supervisors about Ms. Kreutz's proselytizing,

Ms. Powell filed a charge of religious harassment with the Iowa Civil Rights

Commission. Several weeks after filing this charge, Ms. Powell received a written

reprimand for leaving her desk outside of her allotted break time. This was soon

followed by another written warning reprimanding Ms. Powell for disruptive behavior

in the office. In all, Yellow Book management admonished Ms. Powell three times

before her departure. 
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Ms. Powell contends that these written admonitions were given in retaliation

for her filing a complaint with the ICRC. An employer can be held liable under

Title VII for discriminating against an employee because the employee "has made a

charge, testified, assisted, or participated in any manner in an investigation,

proceeding or hearing." 42 U.S.C. § 2000e-3(a). To make a prima facie retaliation

claim, a plaintiff must show that he or she engaged in statutorily protected activity

and, as a result, suffered an adverse employment action. Gilooly v. Missouri Dep't of

Health & Senior Servs., 421 F.3d 734, 739 (8th Cir. 2005). Not every setback

amounts to an adverse employment action: instead, an action must give rise to " 'a

material employment disadvantage' " that reflects a "tangible change in duties or

working conditions." Baucom v. Holiday Cos., 428 F.3d 764, 767 (8th Cir. 2005)

(citation and internal quotation marks omitted). 

It is obvious that Ms. Powell engaged in protected activity in filing her charge

with the ICRC. But, like the district court, we conclude as a matter of law that

Ms. Powell suffered no adverse employment action in the wake of her ICRC charge.

Although Yellow Book management gave Ms. Powell three written reprimands, she

can point to no cut in her pay, no reduction in her hours, nor any other significant

change to the conditions of her employment. We have held that formal criticisms or

reprimands that do not lead to a change in compensation, responsibilities, or other

benefits do not constitute an adverse employment action under Title VII. Spears v.

Missouri Dep't of Corrections Human Res, 210 F.3d 850, 854 (8th Cir. 2000) (en

banc). Because there was no material change in Ms. Powell's conditions of

employment, her retaliation claim against Yellow Book must fail.

III.

Ms. Powell also named Ms. Kreutz as an individual defendant in her Title VII

and ICRA claims. Title VII addresses the conduct of employers only and does not

impose liability on co-workers, see Smith v. St. Bernards Reg'l Med. Ctr., 19 F.3d

1254, 1255 (8th Cir. 1994), but it is unclear whether ICRA similarly bars such
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individual liability, cf. Vivian v. Madison, 601 N.W.2d 872, 878 (Iowa 1999).

Assuming, without deciding, that ICRA would permit an action against a nonsupervisory co-worker, we conclude that Ms. Powell's ICRA claims against

Ms. Kreutz would fail. To prevail on a hostile-environment claim against a coworker, we think that the Iowa Supreme Court would require a showing that the

conduct complained of altered the terms of the plaintiff's employment, just as Iowa

requires in actions against employers, see Lynch v. City of Des Moines, 454 N.W.2d

827, 833-35 (Iowa 1990). As we have already said, Ms. Powell failed to show that

Ms. Kreutz's communications to her regarding sex or religion were severe or pervasive

enough to alter the terms of Ms. Powell's employment, and thus we hold that they

could not support a claim against Ms. Kreutz. Cf. id. Although Ms. Powell also

named Ms. Kreutz as a defendant in her retaliation claim, she neither alleged nor

proved that Ms. Kreutz retaliated in any way in response to Ms. Powell's protected

conduct. Cf. Estate of Harris v. Papa John's Pizza, 679 N.W.2d 673, 678 (Iowa

2004). We therefore affirm the grant of summary judgment as to Ms. Powell's Title

VII and ICRA claims against Ms. Kreutz.

IV.

Ms. Powell asserts that Ms. Kreutz also surreptitiously placed drugs in her

beverages. As evidence of this claim, Ms. Powell stated that she would often fall

asleep at her desk or that she would daydream while driving home from work. On one

occasion, Ms. Powell says that she saw Ms. Kreutz (who worked in the adjoining

cubicle) near her desk and Ms. Kreutz's hands "up by my drink." Ms. Powell

additionally alleges that someone took pens from her desk without her knowledge or

permission, looked at her email while she was on break, and retrieved papers from her

desk.

Ms. Powell maintains that these actions constitute an invasion of privacy. Iowa

law does recognize a cause of action for invasion of privacy that is based on the

Restatement of Torts § 652B. See Lamberto v. Bown, 326 N.W.2d 305, 309 (Iowa
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1982). This section imposes liability upon a defendant who "intentionally intrudes ...

upon the seclusion of another ... if the intrusion would be highly offensive for a

reasonable person." But even if acts such as spiking drinks, stealing pens, taking

papers from a desk, and reading someone's email could give rise to a cognizable

invasion-of-privacy claim, Ms. Powell did not produce sufficient evidence for a

reasonable fact-finder to conclude that Ms. Kreutz did those things. 

V.

Ms. Powell additionally complains that Ms. Kreutz tortiously interfered with

the contractual relationship between Ms. Powell and Yellow Book by spiking her

drink. Under Iowa law, a plaintiff may recover for tortious interference when a third

party intentionally and improperly acts so as to lead to the severance of a contractual

relationship. To succeed on such a claim, Ms. Powell must show that she had a valid

contractual relationship with Yellow Book, that Ms. Kreutz knew of that relationship

and intentionally and improperly interfered with it, and that as a result Yellow Book

breached the contract. Grimm v. US West Communications., Inc., 644 N.W.2d 8, 12

(Iowa 2002). 

The district court granted Ms. Kreutz's motion for summary judgment, holding

that a claim for tortious interference could not proceed where the other party to the

contract employed the defendant. While generally an employee can have no claim

against his or her employer's agent for interfering with the plaintiff's employment

contract, see Harvit v. Voss Petroleum, Inc., 553 N.W.2d 329, 331 (Iowa 1996), we

believe that employees of a contractual party may be liable for tortious interference

with that contract when their actions were taken in bad faith and for reasons unrelated

to the agency, see Bossuyt v. Osage Farmers Nat'l Bank, 360 N.W.2d 769, 778 (Iowa

1985). Although Ms. Kreutz was Yellow Book's employee, there is scant reason to

believe that any drugging that she might have done was for the benefit of Yellow

Book. Thus, Ms. Kreutz might well be considered a third party for the purposes of

this claim. 
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We nevertheless affirm the district court's grant of summary judgment on

Ms. Powell's tortious-interference claim. Ms. Powell alleged that Ms. Kreutz

tortiously interfered with her employment by spiking her drink. But as we have

already concluded with regard to Ms. Powell's invasion-of-privacy claim, there is

insufficient evidence from which a reasonable jury could conclude that Ms. Kreutz

engaged in the alleged conduct. Ms. Powell therefore cannot prevail on this claim.

Finally, because Ms. Powell's proof that Ms. Kreutz put drugs in her drink is

insufficient, her claims for assault and battery also fail as a matter of law. 

VII.

For the foregoing reasons, we affirm the district court's grant of summary

judgment in favor of appellees Ms. Kreutz and Yellow Book.

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