1The Honorable Paul A. Magnuson, United States District Judge for the District

of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-4075

___________

Marcia A. Hocevar, *

*

Plaintiff - Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Purdue Frederick Company; Timothy *

Amundsen, *

*

Defendants - Appellees. *

___________

Submitted: October 21, 1999

Filed: June 22, 2000

___________

Before BEAM, LAY and JOHN R. GIBSON, Circuit Judges.

___________

BEAM, Circuit Judge, with whom Judge John R. Gibson joins in the result reached in

Part IIA.

Marcia Hocevar appeals the district court's1 grant of summary judgment in favor

of Purdue Frederick Company (Purdue) and Timothy Amundsen, resulting in the
2Hocevar also brought claims of quid pro quo harassment in violation of Title

VII, and state law claims of intentional infliction of emotional distress, breach of

contract, and wrongful discharge. The district court dismissed Amundsen as a party.

The district court also dismissed the quid pro quo claim on summary judgment. After

dismissal of the Title VII claims, the district court declined to exercise supplemental

jurisdiction over the state law claims. At oral argument, Hocevar's counsel seemed to

imply that Hocevar did not wish to pursue an appeal of the dismissal of her quid pro

quo claim. Regardless, we affirm the district court's well-reasoned opinion with regard

to the dismissal of the quid pro quo allegation. Hocevar does not appeal the dismissal

of Amundsen as a party or the district court's decision to not exercise supplemental

jurisdiction over the state law claims.

3We review the district court's grant of summary judgment de novo, and will

affirm if the evidence, viewed in the light most favorable to Hocevar, shows that there

is no genuine issue of material fact and that Purdue is entitled to judgment as a matter

of law. See Austin v. Minnesota Mining and Mfg. Co., 193 F.3d 992, 994 (8th Cir.

1999) (standard of review).

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dismissal of her Title VII claims of hostile work environment and retaliation.2 The

district court found that Hocevar had not established a prima facie case of hostile work

environment and that she had not demonstrated a retaliation claim. 

I. BACKGROUND

I relate the relevant facts in the light most favorable to Hocevar.3 Hocevar

worked as a sales representative for Purdue. During Hocevar's employment, her

supervisor, Timothy Amundsen, constantly used the words "bitch," "fuck, " and

"asshole," and sometimes used combinations of these words. Aside from her claims

of constant offensive language, Hocevar also asserts four specific instances of

inappropriate conduct by Amundsen. First, Amundsen called a female client who

treated him rudely a "fat fucking bitch." Second, Amundsen called a new male

employee a "fucking new guy" throughout a business meeting. Third, at a business

meeting, Amundsen played a tape of the Jerky Boys, a set of crude, so-called
4The company official who called Hocevar a "bitch" later called to apologize for

his comment.

5This was the same company official who danced with Hocevar two years

earlier.

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comedians whose routine often includes offensive language. Fourth, Amundsen said

that Purdue's clients would "cream their jeans" when they found out about a new

product that Purdue had developed.

Hocevar cited four other incidents of sexual harassment involving other company

officials. First, in the spring of 1992, while having drinks, several company employees

engaged in a heated argument about Susan Faludi's book Backlash. During that

argument, a company official expressed negative feelings about the feminist movement

and another company official called Hocevar a "bitch."4 Second, in January of 1993,

another company official made sexual advances toward her and pulled her close to have

full-body contact during a dance at a company gathering. Third, at a company meeting

in the spring of 1993, two other company officials talked during a presentation that

Hocevar was giving. At the end of the presentation, Hocevar confronted them about

their rude behavior and one of the men told her that they had been talking about "what

great legs" Hocevar had. Fourth, in April of 1995, after a skit performed by three

female employees at a company gathering, a company official5 suggested to the room

of 150 people that he would be having a sexual liaison with the three women later that

evening. During this same gathering, the company official also made a comment that

suggested a female employee had a sexual device in her hand.

In August of 1995, Hocevar was injured in a car accident in which she received

injuries that kept her off work for several weeks. On September 18, 1995, Hocevar

returned to work. However, she was only able to work for a little more than a month

before having to take another absence because of continuing pain from injuries

sustained in the accident. On December 15, 1995, Purdue sent a letter to Hocevar in
6Because Hocevar has failed to prove the elements of her claim, we need not

decide the availability of or extent of an affirmative defense.

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which the company expressed concern about her continued absence. Five days later,

Hocevar's attorney responded with a letter that outlined Hocevar's complaints about

Amundsen's conduct. On May 2, 1996, Hocevar filed a complaint with the EEOC.

About a month after the complaint was filed, Purdue terminated Hocevar.

II. DISCUSSION

A. Hostile Work Environment

To succeed on a claim of hostile work environment created by her supervisor,

Hocevar has to prove the elements of such a case. These elements are: (1) that she is

a member of a protected group; (2) that she was subject to unwelcome sexual

harassment; (3) that the harassment was based on sex; and (4) that the harassment

affected a term, condition, or privilege of employment. See Phillips v. Taco Bell Corp.,

156 F.3d 884, 888 (8th Cir. 1998). Purdue has an affirmative defense to liability or

damages when no tangible employment action is taken if: (a) Purdue exercised

reasonable care to prevent and correct promptly any sexually harassing behavior; and

(b) Hocevar unreasonably failed to take advantage of any preventive or corrective

opportunities provided by Purdue or to avoid harm otherwise. See Faragher v. City of

Boca Raton, 524 U.S. 775, 807 (1998). Hocevar is a member of a protected group.

However, Hocevar has failed to establish that the alleged behavior was unwelcome, the

discrimination was based on sex, or that the harassment affected a term, condition, or

privilege of employment.6

Hocevar has not demonstrated that Amundsen's use of offensive language was

unwelcome. A plaintiff must indicate by her conduct that the alleged harassment was

unwelcome. See Quick v. Donaldson Co., 90 F.3d 1372, 1378 (8th Cir. 1996). A
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plaintiff cannot create a genuine issue of material fact with regard to unwelcome

behavior when she engages in the conduct complained about. See Scusa v. Nestle

U.S.A. Co., 181 F.3d 958, 966 (8th Cir. 1999). Hocevar's own testimony indicates that

Amundsen's use of offensive language was not unwelcome because she used the

offensive language herself. Hocevar admitted that she also called the new co-worker

the "fucking new guy" at the business meeting. She further admitted that she used the

words "bitch" and "fuck" around both Amundsen and other Purdue employees. I find

that these actions on the part of Hocevar vitiate her contention that the mere use of

these words was unwelcome. 

Hocevar also failed to establish that the discrimination was based on sex.

Harassing conduct constitutes discrimination based on sex when members of one sex

are exposed to disadvantageous terms or conditions of employment to which members

of the other sex are not exposed. See Montandon v. Farmland Indus. Inc., 116 F.3d

355, 358 (8th Cir. 1997). Hocevar failed to demonstrate that the language complained

about was based on sex. Offensive language was used to describe both men and

women. While Amundsen described a female client who had treated him rudely as a

"fat fucking bitch," he also referred to a new male employee as a "fucking new guy."

Offensive language was used in front of both men and women at company meetings and

the Jerky Boys tapes were played in front of both men and women. The use of foul

language in front of both men and women is not discrimination based on sex. See id.

at 358; see also Scusa, 181 F.3d at 965.

Hocevar claims that Amundsen's use of the term "bitch" itself shows a

discriminatory attitude toward females. Gender-based insults may create an inference

that discrimination was based on sex. See Carter v. Chrysler Corp., 173 F.3d 693, 700

(8th Cir. 1999). However, mere use of the word "bitch," without other evidence of sex

discrimination, is not particularly probative of a general misogynist attitude. See Kriss

v. Sprint Communications Co., 58 F.3d 1276, 1281 (8th Cir. 1995). 
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In this case, Hocevar has presented no additional evidence demonstrating that

Amundsen's use of the word "bitch" connotes a misogynist attitude. This is not a case

where Amundsen used the term bitch as a synonym for female-specific characteristics

of which he did not approve. See id. at 1281 (noting that evidence where supervisor

used word "bitch" as synonym for "complain" would provide stronger evidence of sex

harassment because that would demonstrate that supervisor associated complaining

with females). Neither is this a case where Amundsen blamed Hocevar's sexuality for

his use of the word "bitch." Carter, 173 F.3d at 701 (holding that use of sexual epithets

is evidence of sexual harassment when co-employee claims he used sexual epithets

because plaintiff dressed provocatively and put "her ass up in our faces"). Nor is this

a case in which Amundsen engaged in a litany of obscene name calling against

Hocevar. See Burns v. McGregor Elec. Indus. Inc., 989 F.2d 959, 964 (8th Cir. 1993)

(finding discrimination based on sex when male co-worker called female plaintiff a

"bitch," "asshole," "slut," and "cunt"). Because Hocevar has failed to present any

additional evidence to bolster her contention that Amundsen's pervasive use of the term

"bitch" shows his misogynist attitude, I find that Hocevar cannot demonstrate the

harassment was based on sex.

Finally, Hocevar cannot show that the harassment was sufficiently severe or

pervasive so as to alter a term, condition, or privilege of employment. See Taco Bell,

156 F.3d at 888. "Conduct that is not severe or pervasive enough to create an

objectively hostile or abusive environment–an environment that a reasonable person

would find hostile or abusive–is beyond Title VII's purview." Oncale v. Sundowner

Offshore Servs. Inc., 523 U.S. 75, 81 (1998). Factors to consider when determining

whether sexual harassment is sufficiently severe or pervasive include: "the frequency

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's work performance." Harris v. Forklift Sys. Inc., 510 U.S. 17, 23 (1993).
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More than a few isolated instances are required. See Kimzey v. Wal-Mart Stores, Inc.,

107 F.3d 568, 573 (8th Cir. 1997). While the use of foul language may have been

pervasive, I have already concluded that it was neither unwelcome nor based on sex.

This leaves Hocevar with four events that might constitute unwelcome behavior

based on sex: (1) the Backlash incident; (2) the "great legs" incident; (3) the dancing

incident; and (4) the skit incident. I will assume that all of these incidents could

constitute unwelcome behavior based on sex. However, these incidents were clearly

not pervasive because they occurred over at least a three-year period. In addition, a

few inappropriate comments and an unwanted slow dance do not amount to particularly

severe conduct that was threatening or humiliating.

I have little doubt that Amundsen's behavior was boorish and unprofessional.

But, Title VII is not a general civility code. See Faragher, 524 U.S. at 788. The simple

fact is that the cases on which Hocevar relies involved far, far more evidence than

Hocevar has presented. See Rorie v. United Parcel Serv., 151 F.3d 757 (8th Cir. 1998)

(reversing summary judgment against plaintiff where supervisor patted female

employee on back, brushed up against her, told her she "smelled good," always "cameon" to her, and asked her about co-worker's penis size); Howard v. Burns Bros. Inc.,

149 F.3d 835 (8th Cir. 1998) (affirming jury verdict where co-employee always used

sexual innuendos, told plaintiff she had nice legs, brushed her buttocks, told jokes

involving lewd gestures, and touched the buttocks of and talked "nasty" to other female

employees); Hall v. Gus Constr. Co., 842 F.2d 1010 (8th Cir. 1988) (upholding

judgment when plaintiffs' male co-workers made repeated requests for sex and touched

plaintiffs' breasts and thighs). While I sympathize with Hocevar's having to endure

Amundsen's conduct, her assertions fall far short of proof of a hostile work

environment.
7Hocevar received poor performance evaluations in late-1994 and early-1995,

and she had two major accounts removed from her sales territory in June of 1995.

However, these are not adverse employment actions for the purpose of her retaliation

claim because these events occurred well before Hocevar filed her complaint with the

EEOC, the event which, according to Hocevar, triggered the retaliatory conduct. I also

note that these events lend no aid to Hocevar's hostile work environment claim.

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B. Retaliation

To establish a prima facie retaliation case, Hocevar must prove that: (1) she

engaged in protected activity; (2) Purdue took adverse action against her; and (3) there

is a causal connection between the two. See Scott v. County of Ramsey, 180 F.3d 913,

917 (8th Cir. 1999). If Hocevar establishes a prima facie case, a presumption of

retaliation arises, and the burden then falls on Purdue to advance a legitimate reason

for the adverse employment action. See id. If Purdue advances a legitimate reason, the

presumption drops out and Hocevar has the burden of demonstrating intentional

retaliation. See id. If there is no direct proof of retaliation, as here, a claimant may,

under some circumstances, advance indirect proof by evidence that the so-called

legitimate reason is merely a pretext for unlawful retaliatory conduct. See id. I find

that Hocevar established a prima facie case of retaliation. However, I also find that

Purdue advanced a legitimate reason for Hocevar's termination and that Hocevar

presented no evidence of pretext.

Hocevar engaged in protected activity when she lodged a complaint with the

EEOC on May 2, 1996. Purdue then took an adverse employment action against

Hocevar by terminating her on June 7, 1996.7 Finally, she established an inference of

a causal connection because her termination closely followed the filing of her EEOC

complaint and also closely followed Amundsen's return from a three-month suspension

received, in part, because of Hocevar's complaints to Purdue officials. See Smith v.

Riceland Foods, Inc., 151 F.3d 813, 819-20 (8th Cir. 1998) (causal connection
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established by circumstantial evidence, including close proximity of time between

plaintiff's engagement in protected activity and the adverse employment action).

However, Purdue presented a legitimate reason for Hocevar's termination. In its

termination letter, Purdue expressly noted that Hocevar was dismissed because of the

need to re-staff her territory due to her lengthy absence. Hocevar does not dispute her

absence from work for more than seven months, and I have little doubt that Purdue has

a legitimate need to have its sales territories covered. Thus, I find it was legitimate for

Purdue to terminate Hocevar in order to re-staff her vacant sales territory.

Hocevar argues that the legitimate reason advanced by Purdue is a pretext for

retaliation because: (1) Purdue failed to re-staff another important sales territory for

three months and (2) a similarly situated employee who did not complain to the EEOC

was not terminated by Purdue. As an initial matter, it does not appear that Hocevar

made these arguments to the district court. See Womack v. City of Bellefontaine

Neighbors, 193 F.3d 1028, 1032 (8th Cir. 1999) (declining to address arguments first

advanced on appeal). However, even assuming that these arguments were advanced

below, she has not provided evidence of pretext.

The fact that Purdue left another territory unstaffed for three months does not

amount to pretext. Perhaps if Purdue had terminated Hocevar after three months, this

would be somewhat persuasive. However, Hocevar's territory was left unstaffed for

seven months–more than double the amount of time that Hocevar claims another

territory was left unstaffed. Because of the significant difference in the amount of time

that Hocevar's territory remained unstaffed, Purdue's failure to re-staff another territory

for three months provides no evidence of pretext.

Hocevar's contention about an allegedly similarly situated employee also fails.

Hocevar presented evidence that Purdue did not terminate another sales representative

who also expressed concern about Amundsen's conduct but who did not file an EEOC
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complaint. Where the only evidence of pretext is disparate treatment when compared

to another employee, a plaintiff must show that the other employee was similarly

situated in all relevant aspects. See Scott, 180 F.3d at 917. In this case, the other sales

representative and Hocevar were not similarly situated in all relevant aspects because

the other sales representative was never absent from work. Thus, Purdue's retention

of the other sales representative provides no support for Hocevar's allegations of

pretext.

III. CONCLUSION

For the foregoing reasons, Judges Beam and Gibson affirm the district court's

dismissal of the hostile work environment claim; Judge Beam would also affirm the

district court's decision on the retaliation claim.

LAY, Circuit Judge, with whom Judge John R. Gibson joins in Part IIA.

This is an appeal brought by Marcia Hocevar (Hocevar) from the district court’s

grant of summary judgment in favor of Purdue Frederick Company (Purdue), her former

employer, in a sexual harassment and retaliation claim brought under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The district court found that the

plaintiff was a member of a protected class (a female) but that she failed as a matter of

law to demonstrate a genuine dispute of material fact on both of her claims. In addition

to denying her claim of retaliation, the court found that Hocevar had not shown a

hostile work environment because it concluded that the alleged harassment was neither

pervasive nor severe. For the reasons stated below, the majority of the court (Judges

Beam and Gibson) affirm the grant of summary judgment on the hostile work

environment claim; a different majority of the court (Judges Lay and Gibson) reverse

and remand for trial on Hocevar’s retaliation claim.
8The district court dismissed the action against Amundsen. There is no appeal

from that order of dismissal.

9The timing of the reduction in Hocevar’s sales territory is not clear from the

record. Hocevar’s affidavit indicates the reduction occurred in the summer of 1995.

Hocevar’s EEOC complaint, however, indicates the event occurred on September 5,

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I. BACKGROUND

The record shows that Marcia Hocevar began working at Purdue in August 1988

as a pharmaceutical sales representative. While working for Purdue in Minnesota

between 1988 and 1992, Hocevar consistently out performed her then co-worker

Timothy Amundsen (Amundsen) and was often ranked in the top sales percentile

nationally. Hocevar was promoted three times in five years, the final promotion being

to the position of sales training manager at corporate headquarters in Norwich,

Connecticut. Hocevar’s bonuses reflect her good sales record, and her performance

was rated at the highest possible level. 

In June 1994, Hocevar transferred to Minnesota due to her impending marriage

where she was placed under the supervision of Amundsen, the new district manager,

and took over the sales territory previously assigned to him.8 Despite Hocevar’s history

of top-notch performance evaluations, Amundsen rated Hocevar at the lowest possible

level in October and November 1994. Amundsen gave Hocevar an additional adverse

rating in February 1995.

In March 1995, Amundsen accused Hocevar of lying and making false sales

reports. A company investigation concluded no wrongdoing on Hocevar’s part.

Shortly thereafter, in July 1995, Amundsen again gave Hocevar the lowest possible

performance rating despite the fact that she demonstrated a sales growth of seven

percent. At some point, Purdue took away a portion of Hocevar’s sales territory – an

area including the world renown Mayo Clinic and LaCrosse, Wisconsin.9 This action
1995. The district court found the event occurred prior to her August 16, 1995, injury

and disability leave. See Dist. Ct. Mem. and Order at 13.

10In setting forth the facts of this case, we explicitly recite the use of foul and

offensive language. Unfortunately, such a recitation is necessary to accurately depict

the language used in order to provide a more precise sense of the work environment

that existed at Purdue. Women in any work environment will be totally bewildered by

the suggestion of Judge Beam that these terms are not sexual in content or demeaning

to women.

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was taken by Amundsen despite the fact that Hocevar exceeded Amundsen’s own prior

sales record in the same territory and received bonuses for exceeding sales quota.

These areas remained unstaffed for three months following removal from Hocevar’s

territory. 

On August 11, 1995, Amundsen recommended Hocevar for probation based on

her past year’s performance. Following an automobile accident, Hocevar took

disability leave from August 16, 1995, until September 15, 1995. Despite her absence,

Hocevar again met her sales quota and earned a bonus. Hocevar took additional

disability leave on October 21, 1995, and requested a part-time work schedule

accommodation. Amundsen denied her request. As a result, Hocevar was unable to

return to full-time work and remained on disability leave until her termination on 

June 7, 1996. 

Following Hocevar’s return to Minnesota in 1994, Amundsen engaged in hostile

behavior in the workplace over a two-year period: he distributed sexually explicit

material at business meetings; he made threats of violence towards female staff

members; he constantly referred to women as “bitches,” “fucking bitches,” and “fat

fucking bitches,”10 he told stories of animal violence (e.g., placing a loaded gun in the

mouth of a dog that wandered into his yard); he told jokes at meetings that were

derogatory towards women and contained profanity; he introduced a new employee as
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the “fucking new guy;” and claimed that new pharmaceutical products were so exciting

a physician would be “creaming his jeans” to get them. Hocevar also testified that

Amundsen exhausted a portion of a staff meeting by playing an audiotape of the Jerky

Boys which contained obscene, vulgar, and sexually explicit “prank” phone calls to

businesses on topics such as genital warts.

Hocevar also testified that in April 1992, Purdue Regional Manager Paul

Kasprzycki (Kasprzycki) had made sexual advances toward her at a bi-regional meeting

in Denver, Colorado. She testified that she was afraid to report complaints to

Kasprzycki (Amundsen’s supervisor) due to incidents of Kasprzycki making

unwelcome sexual advances towards her, including pulling her toward him resulting in

“full body contact” during what began as a consensual “fast” dance that led into a

“slow” dance. She testified that Kasprzycki made “very clear his wish to have a sexual

relationship” with her and made suggestive comments about being available for a

sexual relationship. Hocevar testified that Kasprzycki’s advances were even more

explicit when no witnesses were around. According to Hocevar, this was not an

isolated incident, as Kasprzycki had previously made “unwelcome and uninvited”

sexual advances toward her following a Purdue national meeting in New Orleans in

January 1992. Then, in front of nearly 150 people Kasprzycki made statements at a biregional meeting in April 1995 implying a female manager had a sexual device in her

hand and, in a separate incident, that he would be engaging in a sexual liaison in his

hotel room later that day with three female sales representatives that had just performed

a singing skit. Additionally, she describes an incident at a national meeting in Texas

in 1993 involving two other Purdue District Managers, Dan Mackavoy and Dick

Silverman. Hocevar stated that the district managers talked throughout her

presentation; afterwards, she approached them about their “rude” behavior, to which

Mackavoy responded: “We were talking about what great legs you have.” 

In yet another incident, also following a Purdue bi-regional meeting, Hocevar and

six male and female co-workers were discussing Susan Faludi’s book Backlash: The
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Undeclared War Against American Women (discussing public reaction to successful

working women). During this conversation, a male employee called Hocevar a “bitch”

and the then new district manager, Kelly Bartlett, became “very angry” and “exploded”

stating: “You women, since when are women always right and men are always wrong?

If your women’s movement had its way, every woman would be working and our

children would be being raised in communes.” The incident was so upsetting that

Kathy Kiekhaefer (Kiekhaefer) and a co-worker were crying and were “scared” and

concerned at the prospect of working for a manager with such a feeling of hostility

toward working women. 

In October 1995, Hocevar complained to Dennis Merlo, a Purdue managerial

employee, about Amundsen’s inappropriate behavior, foul language, and stories of

animal violence. On December 20, 1995, Hocevar’s attorney notified Purdue of her

intention to file a complaint against Purdue with the Minnesota Department of Human

Rights alleging sexual harassment. The letter also voiced concerns about the “ongoing

sexual harassment” of Hocevar and other women at Purdue. In January 1996, another

female employee, Kiekhaefer, filed a claim of sexual harassment with Purdue, which

prompted Purdue to investigate the complaints. 

Danielle Nelson (Nelson), Purdue’s Vice President of Equal Employment

Opportunity Compliance and Human Resources Administration, conducted an

investigation into the complaints of sexual harassment. Nelson found that Amundsen’s

extensive use of profanity and off-color jokes violated company policy and was

“unprofessional behavior.” Nelson concluded, however, that no sexual harassment

occurred. Despite Nelson’s determination that no sexual harassment occurred, Purdue

directed Amundsen – under threat of termination – to take a three month unpaid leave

of absence during which he would receive counseling and management training.

Thereafter, Nelson and James Lang (Lang), Purdue’s National Sales Manager, traveled

to Amundsen’s district, informed the employees that Amundsen’s language was

inappropriate and unacceptable, and trained employees on Purdue sexual harassment
11An employer may not discriminate against an employee “because he has

opposed any practice made an unlawful employment practice by this subchapter, or

because he has made a charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a).

12The defendant seeks to refute that any adverse employment had taken place.

Without getting into evidentiary detail, it is undisputed that Hocevar claims she lost her

job for engaging in protected activity. As the district court points out, Hocevar’s

discharge followed the protected activity so closely in time so as to create an inference

of retaliating motive, citing Kiel v. Select Artificials, Inc., 142 F.3d 1077, 1080 (8th

Cir. 1998), reh’g granted and opinion vacated (Jun. 5, 1998). 

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complaint procedures. After the Nelson/Lang visit, Hocevar’s co-worker Mary BeckJohnson testified that workplace conduct “absolutely changed” – “personal” matters

were no longer discussed and inappropriate language was no longer used at meetings.

In mid-April 1996, Amundsen returned from the unpaid leave of absence. On

May 2, 1996, Hocevar filed a charge of sexual harassment with the Equal Employment

Opportunity Commission (EEOC) and Purdue terminated her a little over a month later

by letter dated June 7, 1996. Hocevar thereafter filed her claim alleging retaliatory

discharge on July 10, 1996. Hocevar now appeals the district court’s grant of summary

judgment in favor of Purdue. 

II. DISCUSSION

A. Retaliation

The district court found that Hocevar made a prima facie case of retaliation

following her claim of sexual harassment with the EEOC. It found that (1) Hocevar

had engaged in a statutorily protected activity;11 (2) an adverse employment action

occurred; and (3) the adverse employment action was casually linked to the protected

activity.12 Nonetheless, the district court found that Purdue articulated a
13In its letter terminating Hocevar, Purdue advised that it would make every

effort to locate a suitable territory for her when she was certified as able to return to

work. Purdue suggests this precatory offer of reinstatement constitutes sufficient

immunity from a claim of retaliation. Whether this offer to mitigate the harshness of

discharge was sincere is a question of fact for the jury. Whatever intended, it cannot

serve to provide immunity from liability if Purdue retaliated against a person who

engaged in a statutory protected right.

14The Supreme Court observed, “when all legitimate reasons for rejecting an

applicant have been eliminated as possible reasons for the employer’s actions, it is

more likely than not the employer, who we generally assume acts only with some

reason, based his decision on an impermissible consideration such as [age].” Furnco

Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978).

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nondiscriminatory reason for termination, namely, the company’s need to restaff her

vacant position.13 The district court furthermore found that Hocevar had not shown

evidence that Purdue’s reason was pretextual.

Based on our de novo review of the record, we reverse the grant of summary

judgment on Hocevar’s retaliation claim. The overall record establishes the plaintiff

has demonstrated sufficient evidence, if believed, that the reason given for her

discharge simply masked the true reason for the discharge – retaliation for filing an

EEOC charge. See Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978).14 The

record demonstrates several factors from which a trier of fact might infer that retaliation

was the true reason for her discharge:

(1) the close proximity in time between Hocevar’s discharge and Amundsen’s

return to work after his three-month suspension without pay for sexual harassment as

reported by Hocevar and others;

(2) the close proximity of Hocevar’s filing the EEOC claim of sexual harassment

and her discharge;
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(3) that long prior to the company’s reason for Hocevar’s discharge, the Mayo

Clinic account was taken away from the plaintiff and that account was unserviced for

over three months thus depriving Hocevar of substantial sales commission;

(4) that Hocevar was targeted by Amundsen and Kasprzycki for preprobation in

July 1995;

(5) that defendant had earlier refused to accommodate plaintiff’s work restriction

following a car accident, when defendant’s own employment expert testified that such

accommodation could have occurred;

(6) that Amundsen had required Hocevar to call him every day with a special

report about her sales calls; no other employee was required to do so;

(7) that Kathy Kiekhaefer testified that employees who complained about their

manager “eventually were gone from the organization altogether.”

Hocevar’s allegations, if proven true, evidence a long history of unfavorable

actions by Amundsen against her virtually from the moment she was placed under his

supervision. During the period in which Amundsen gave her the lowest possible

performance ratings and placed her on probation, Hocevar consistently exceeded

Purdue sales quotas and received bonuses. Hocevar’s sales performance exceeded

quota notwithstanding the fact that Amundsen removed a lucrative portion of her sales

territory and despite the offensive work environment and heightened scrutiny by

Amundsen. After Hocevar notified Purdue of Amundsen’s offensive behavior,

Amundsen was forced to take an unpaid leave of absence. Less than a month after his

return, Hocevar filed a sexual harassment claim and shortly thereafter was terminated.
-18-

Giving Hocevar the benefit of all favorable inferences on summary judgment, we

hold there exists sufficient inference that the company’s sudden need to restaff the

Mayo Clinic territory was indeed questionable and that Hocevar’s filing of her

complaint with the EEOC was the motivating act that caused Amundsen to discharge

her.

It is not for this court, nor for the district court, to weigh the evidence and decide

whether Purdue’s proffered reason was true. As long as there exists conflicting

evidence upon which reasonable men and women might differ, we find sufficient

evidence of pretext to survive the motion of summary judgment. Under the

circumstances, we find the district court erred in granting summary judgment on

Hocevar’s retaliation claim. We, therefore, reverse the grant of summary judgment on

Hocevar’s claim of retaliation for the exercise of protected activity.

LAY, J. dissenting.

I dissent from the grant of summary judgment on the hostile work environment

claim. 

Title VII makes it unlawful for an employer “to fail or refuse to hire or to

discharge any individual, or otherwise to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment, because

of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e2(a)(1). Title VII protects “more than ‘terms’ and ‘conditions’ in the narrow

contractual sense.” Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998) (quoting

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998)) (internal quotation

omitted). The Act evinces Congress’ intention to define discrimination in the broadest

possible terms, and neither enumerates specific discriminatory practices nor defines the

breadth of actionable illegal activities. See Hall v. Gus Constr. Co., 842 F.2d 1010,

1014 (8th Cir. 1988). In interpreting the scope of activities prohibited under Title VII,
-19-

the Supreme Court instructs that hostile work environment harassment occurs when

“the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult’ that

is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment

and create an abusive working environment.’” Harris v. Forklift Sys., Inc., 510 U.S.

17, 21 (1993) (citations omitted and emphasis added).

In a sexual harassment suit, in order to establish a claim of hostile work

environment, a plaintiff must show (1) membership in a protected group; (2) the

occurrence of unwelcome harassment; (3) a causal nexus between the harassment and

membership in the protected group; and (4) that the harassment affected a term,

condition or privilege of employment. See Carter v. Chrysler Corp., 173 F.3d 693, 700

(8th Cir. 1999). If the harassment is perpetrated by a supervisor and the employee

suffers a tangible employment action (e.g., demotion, undesirable reassignment, or

discharge), the employer is vicariously liable for the supervisor’s sexual harassment of

the employee. See Faragher, 524 U.S. at 807-08; Burlington Indus., Inc. v. Ellerth, 524

U.S. 742, 765 (1998). Important to my analysis is the Supreme Court’s recent

statement that sexually harassing behavior perpetrated by a supervisor has a “greater

power to alter the environment” than similar actions of mere co-workers. Faragher,

524 U.S. at 805. 

The inquiry at summary judgment is “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-

52 (1986). As I previously indicated, in considering a motion for summary judgment,

the district court should not weigh the evidence, make credibility determinations, or

attempt to determine the truth of the matter, id. at 249, but instead should give all

reasonable inferences to the non-moving party. Id. at 255. To survive summary

judgment, Hocevar need only submit “‘sufficient evidence supporting a material factual

dispute that would require resolution by a trier of fact.’” Austin v. Minnesota Mining

& Mfg. Co., 193 F.3d 992, 994 (8th Cir. 1999), (quoting Hase v. Missouri Div. of
15Under summary judgment, the burden is actually on the moving party to show

the absence of a genuine dispute of material fact. See Adickes v. S. H. Kress & Co.,

398 U.S. 144, 157 (1970). I think it clear that the employer has not carried that burden.

Consideration of this matter is further guided by the principle that summary

judgment should seldom be granted in employment discrimination cases since the

claims frequently rely on inferences. See Breeding v. Arthur J. Gallagher and Co., 164

F.3d 1151, 1156 (8th Cir. 1999) (citing Lynn v. Deaconess Med. Ctr.-West Campus,

160 F.3d 484, 486-87 (8th Cir. 1998)). 

-20-

Employment Sec., 972 F.2d 893, 895 (8th Cir.1992)). Summary judgment is

inappropriate where “reasonable minds could differ as to the import of the evidence.”

Anderson, 477 U.S. at 250. It is under this framework that we should review the

district court’s grant of summary judgment to Purdue on Hocevar’s claims of hostile

work environment.15

Hocevar asserts that during her tenure at Purdue, she endured a constant litany

of vulgar and inappropriate behavior. As previously set forth, the behavior was

perpetrated in large part by Amundsen, her direct supervisor, and, in small part, by two

other Purdue managers. 

As the district court found, there is no dispute that Hocevar, a female, is a

member of a protected group. See Carter, 173 F.3d at 700 (female plaintiff member

of protected group). Our inquiry, therefore, should turn to the second element of a

hostile work environment claim: whether she was subject to unwelcome harassment.

Conduct is “unwelcome” where it is “uninvited and offensive.” Bales v. Wal-Mart

Stores, Inc., 143 F.3d 1103, 1108 (8th Cir. 1998); see Moylan v. Maries County, 792

F.2d 746, 749 (8th Cir. 1986) (conduct is unwelcome where employee neither solicited

it nor invited it, and regarded it as undesirable or offensive). 
16Before the district court, Purdue argued that the court should not consider

alleged harassment that occurred prior to July 7, 1995, that is, 300 days prior to

Hocevar’s May 2, 1996, complaint to the EEOC. Hocevar argued the court should

consider incidents prior to July 7, 1995, under a continuing violation theory, which

permits consideration of allegedly discriminatory events outside the 300-day limitations

period. See Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1302 (8th Cir. 1997).

Although not expressly adopting the continuing violation theory, the district court

implicitly agreed with Hocevar and considered behavior beginning in August 1994. 

17The opinion by Judge Beam takes a different approach, suggesting that

Hocevar cannot prove the behavior was unwelcome because she had on occasion used

similar language, relying on Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 966 (8th Cir.

1999). In Scusa, the hostile work environment plaintiff alleged, among other incidents,

-21-

That the conduct in question is unwelcome is “[t]he gravamen of any sexual

harassment claim.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986). In

determining whether conduct is “unwelcome,” we should consider whether the plaintiff

indicated, by her conduct, that the alleged harassment was unwelcome. Quick v.

Donaldson Co., 90 F.3d 1372, 1378 (8th Cir. 1996) (citing Meritor, 477 U.S. at 68).

This is a fact question for the jury and turns largely on credibility determinations. See

Meritor, 477 U.S. at 68 (question of whether conduct is unwelcome presents difficult

proof problems turning largely on credibility determinations committed to trier of fact);

see also Quick, 90 F.3d at 1378. 

The district court focused its inquiry on whether the incidents of harassment

were “offensive” and concluded that they failed to constitute an offensive environment

due to their infrequent use.16 Under review of the record, I find sufficient evidence and

inference therefrom that there was an ongoing use of sexual vulgarity directed at the

plaintiff as well as all women employees in general. Based on the evidence set forth

below, the plaintiff has certainly met the threshold of proof of pervasiveness as a matter

of law. The ultimate determination as to whether the harassment was pervasive must

be made by the jury.17
one occurrence of foul language used by a co-worker during a meeting discussing her

sexual harassment claim. See Scusa, 181 F.3d at 963 n.3. On the question of whether

the plaintiff found the offensive language “unwelcome,” this court observed that the

record contained undisputed evidence that the plaintiff herself used the “F” word along

with male-specific pejoratives, told off-color jokes at work, and teased co-workers.

Id. at 966. This court affirmed the district court’s finding that Scusa failed to create a

genuine issue of material fact to preclude summary judgment on the question of

whether the alleged behavior was unwelcome. In contrast to Scusa, the sexual

vulgarities were used not once, but “constantly” by Hocevar’s supervisor. 

-22-

The record in the present case shows Amundsen’s use of sexual vulgarity

occurred throughout the workplace, on sales calls and during meetings. Hocevar’s

female co-worker, Kiekhaefer, indicates Amundsen repeatedly referred to women as

“bitches,” used the “F” word in virtually every other sentence, called clients “fuckers”

and “assholes,” and routinely referred to female nurses and female physicians as

“fucking bitches.” Similar testimony is in the record from another female employee of

Amundsen’s, Mary Beck-Johnson, indicating Amundsen “routinely” used the terms

“bitch” and “fuck” in meetings. Further, Hocevar testified that sexually explicit

behavior occurred at meetings chaired by Amundsen, which Amundsen either condoned

or failed to stop, and that sexually suggestive comments were made by two Purdue

managers, one of whom subjected Hocevar to unwelcome physical contact during a

consensual dance, which made Hocevar “extremely uncomfortable.” Under the record

presented, these vulgar attacks cannot be simply regarded as “off-hand” or isolated

incidents.

The defendant, as does Judge Beam, relies on the fact that Hocevar herself had

used the words “bitch” and “fuck” on occasion in the workplace. On this basis, it is

argued that the words are not unwelcome by Hocevar. Hocevar, however, qualifies her

use of these words by saying that they were not used in the same context that

Amundsen had used them. There is a world of difference between the use of the

infrequent swear word in the workplace, not actionable when not directed to a specific
-23-

gender, and direct words demeaning to women in general. While Hocevar’s infrequent

use of foul language may indeed, when presented to a jury, diminish her claim that the

behavior of Amundsen and others was “unwelcome,” it in no way bars her claim as a

matter of law. I am unaware of any case that precludes a plaintiff from arguing that the

employer’s constant use of sexually charged language and off-color jokes is unwelcome

merely because the plaintiff at times engaged in swearing. Such a reading is

inconsistent with the mandate that courts consider the totality of the circumstances of

a case. Faragher, 524 U.S. at 787. Further, Judge Beam’s analysis utterly fails to

address Amundsen’s threats of violence, his dissemination of sexually explicit material

at meetings, his condonation of sexually graphic behavior at meetings, and the behavior

of other Purdue managers, all apparently because Hocevar admitted to the infrequent

use of foul language. The record further shows that Hocevar’s swearing was not

directed as a demeaning word of harassment at any person or group of people. It is one

thing that an employee use vulgarity in his or her general communication; it is quite

another when the vulgarity is directed at a specific social group who reasonably could

find it to be demeaning to their own self-being.

Even if one concedes that use of foul language by an employee can diminish a

claim that the harassment was unwelcome and subjectively offensive, evidence of

Hocevar’s reaction could still support a finding that Amundsen’s behavior was

unwelcome. See Burns v. McGregor Elec. Indus., Inc., 989 F.2d 959, 964 (8th Cir.

1993) (agreeing with district court that plaintiff having posed nude for a nationally

distributed magazine does not lead inevitably to conclusion that workplace harassment

was welcome); Bales, 143 F.3d at 1108-09 (plaintiff’s reaction to harassment sufficient

to support jury finding that behavior was unwelcome); see also Caviness v. NucorYamato Steel Co., 105 F.3d 1216, 1223 (8th Cir.1997) (“[I]t stretches credulity to

conceive that a reasonable jury might have thought [plaintiffs] welcomed from their

co-workers the conduct detailed in the evidence at trial.”). 
18The Supreme Court directs that “the objective severity of harassment should

be judged from the perspective of a reasonable person in the plaintiff’s position,

considering ‘all the circumstances.’” Oncale v. Sundowner Offshore Servs., Inc., 523

U.S. 75, 81 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).

Because Purdue does not appear to suggest that the harassment was not objectively

offensive, this issue is not addressed.

-24-

Hocevar testified that she suffered fear, depression, anxiety and self-doubt as a

result of Amundsen’s behavior, including his degrading and demeaning criticism of her

work performance. If she was not offended by this, as I think any reasonable person

would be, it is difficult to explain that both she and her co-worker were under the

continuing care of a psychologist and that Hocevar was treated with Prozac for anxiety

and depression. Hocevar’s complaint to Purdue manager Dennis Merlo is also

“reaction” evidence revealing that Hocevar viewed Amundsen’s sexually derogatory

language unwelcome. Further, the record contains evidence that Hocevar, Kiekhaefer,

and a third female co-worker were “scared” and upset to the point of tears following

the incident surrounding the discussion of Susan Faludi’s book Backlash: The

Undeclared War Against American Women. Giving her the benefit of all favorable

inferences, this conduct could be found by a jury to support a finding that the

harassment was unwelcome and that it was subjectively offensive.18 Precedent

supports such a finding. See Harris, 510 U.S. at 22 (recognizing that Title VII bars

discriminatory conduct that affects a reasonable person’s psychological well-being);

Kopp v. Samaritan Health Sys., Inc., 13 F.3d 264, 269 (8th Cir. 1993) (psychological

harm is a relevant factor in hostile work environment analysis); cf. Jenson v. Eveleth

Taconite Co., 130 F.3d 1287, 1304 (8th Cir. 1997) (recognizing that a callous pattern

and practice of degrading sexual harassment in the workplace can destroy self-esteem

of women exposed to it).

The third element of a claim of hostile work environment requires evidence of

a causal nexus between the harassment suffered and Hocevar’s membership in a

protected group. See Carter, 173 F.3d at 700. At the summary judgment stage, a
19Indeed, Justice Scalia recently pointed out that harassment does not have to be

motivated by sexual desire, but can be motivated by hostility to members of a particular

sex. See Oncale, 523 U.S. at 80 (“A trier of fact might reasonably find such [same-sex]

discrimination, for example, if a female victim is harassed in such sex-specific and

derogatory terms by another woman as to make it clear that the harasser is motivated

by general hostility to the presence of women in the workplace.”). 

-25-

plaintiff may prove harassment is “based on sex” by presenting evidence that members

of one sex were the primary targets of harassment. Quick, 90 F.3d at 1378 (evidence

that members of one sex were primary targets of harassment sufficient to show conduct

was gender based for purposes of summary judgment) (quoting Kopp, 13 F.3d at 269-

70). Whether harassing conduct is based on sex is determined by inquiring “whether

‘members of one sex are exposed to disadvantageous terms or conditions of

employment to which members of the other sex are not exposed.’” Quick, 90 F.3d at

1379 (quoting Harris, 510 U.S. at 25) (Ginsburg, J., concurring). 

This court has recently reaffirmed that gender-based insults, such as the term

“bitch,” may give rise to an inference of discrimination based on sex, see Carter, 173

F.3d at 700, and has rejected the notion that an employee must be propositioned,

touched offensively, or harassed by sexual innuendo in order to have been sexually

harassed. See Quick, 90 F.3d at 1379 (citing Burns, 989 F.2d at 964). Additionally,

we have held that intimidation and hostility toward women in general can result from

conduct other than explicit sexual advances.19 See Hall, 842 F.2d at 1014. Moreover,

it is well settled that verbal abuse, violence, or physical aggression may constitute

sexual harassment, see Quick, 90 F.3d at 1379 (citing Burns, 989 F.2d at 964-65), and

that such need not be explicitly sexual in nature. See Carter, 173 F.3d at 700-01 (“All

instances of harassment need not be stamped with signs of overt discrimination to be

relevant under Title VII if they are part of a course of conduct which is tied to evidence

of discriminatory animus.”);see also, Williams v. General Motors Corp., 187 F.3d 553,

565-66 (6th Cir. 1999) (gender-specific epithets such as “slut” and “fucking women”

can support an inference that the comments were motivated by gender). 
20The American Heritage Dictionary, New College Edition, defines “fuck” as:

“1. Vulgar. To have sexual intercourse with. 2. Vulgar Slang. To deal with in an

aggressive, unjust, or spiteful manner.” p. 531.

-26-

On the question of causal nexus, the district court essentially reasoned that

because the offensive behavior occurred in front of both men and women and was not

specifically directed at Hocevar, it failed to evidence the harasser’s thoughts toward a

particular gender. Similarly, Judge Beam holds that because Amundsen

indiscriminately used the crude adjective “fucking” when referring to both men and

women, the term somehow loses its sexual connotation and cannot be used to show the

language was causally linked to gender. He finds that “[t]his is not a case where

Amundsen used the term bitch as a synonym for female-specific characteristics of

which he did not approve.” This reasoning is inconsistent with this court’s decision in

Kopp where we found sufficient evidence of actionable harassment based on sex to

survive summary judgment where women were more frequently exposed to harassment

than men, despite that abuse was rarely couched in terms of sex or gender and was used

in front of both men and women. Kopp, 13 F.3d at 269-70. Judge Beam’s opinion

further fails to appreciate the inherently sexual nature of the profane term,20 and also

fails to address Amundsen’s chronic characterization of women as “bitches,” “fucking

bitches,” and “fat fucking bitches.”
21In support of the proposition that “bitch” is not indicia of a misogynist attitude,

Judge Beam cites Kriss v. Sprint Communications Co., 58 F.3d 1276, 1281 (8th Cir.

1995). In Kriss, we reversed the district court’s finding of gender discrimination

following a bench trial. Kriss’ supervisor had once stated that a woman in the office

was a “bitch.” This court considered the supervisor’s use of that term and wrote: 

Specifically, the word “bitch,” it seems to us, is not an indication of a

general misogynist attitude. Rather, it is a crude, gender-specific

vulgarity, which in this case was directed toward only one woman, rather

than women in general. (We note the existence of many vulgar epithets

that are used only of men that, we believe, would not be indicative of

animus against males.) Hence, we do not find Miller’s use of this term to

be particularly probative of gender discrimination. Perhaps if the

evidence were that Miller regularly used the word “bitch” as a synonym

for “complain,” the plaintiff’s case would be stronger, because that would

furnish some evidence that Miller associated complaining with females.

Id. (emphasis added). 

-27-

Contrary to Judge Beam’s conclusion,21 Hocevar presents the hypothetical case

we considered in Kriss where a supervisor’s constant use of the word “bitch” was

directed only at women. It is apparent that Amundsen used the term “bitch” throughout

the workplace in a pejorative manner to describe women who were rude to him or
22Hocevar testified through deposition about an incident in which a female

physician backed she and Amundsen out a door, refusing to allow them to visit another

physician. Hocevar testified that Amundsen became “very angry,” was “ranting and

raving” and said “I wish I was in the military again or, like, a cop, because I’d like her

to fear me. I should go up there and slam her one.” Throughout the day, Amundsen

repeatedly referred to the female physician as a “fat fucking bitch” and a “fucking

bitch.” This single incident gives a clear understanding of the hostile context in which

Amundsen used these offensive terms. 

23The American Heritage Dictionary, New College Edition, defines “bitch” as:

“Slang. A spiteful or lewd woman.” p. 135.

-28-

behaved in some way that displeased him.22 This term also has a distinctively negative

connotation when used to describe women.23 

Giving Hocevar the benefit of all reasonable inferences, there is little doubt that

the extensive use of the gender-specific pejorative “bitch,” coupled with the sexually

explicit and offensive term “fuck,” could support a finding that the harassment was

based on sex. To hold otherwise is an unprecedented endorsement of the sexually

insulting behavior presented. See Burns, 989 F.2d at 965 (vulgar and offensive

epithets, including but not limited to “bitch,” are “‘widely recognized as not only

improper but as intensely degrading, deriving their power to wound not only from their

meaning but also from the disgust and violence they express phonetically.’”) (citations

and internal quotations omitted).

The Supreme Court recently reaffirmed the “severe or pervasive” test articulated

in Harris, defining a sexually objectionable environment to mean “one that a reasonable

person would find hostile or abusive, and one that the victim in fact did perceive to be

so.” Faragher, 524 U.S. at 787; see Ellerth, 524 U.S. at 754. Once there is evidence

of improper conduct and subjective offense, the question of whether the conduct rose

to a persuasive level of abuse is largely one for the jury. See Howard v. Burns Bros.,

Inc., 149 F.3d 835, 840 (8th Cir. 1998); see also O’Shea v. Yellow Tech. Servs., Inc.,
-29-

185 F.3d 1093, 1098 (10th Cir. 1999) (“the severity and pervasiveness evaluation is

particularly unsuited for summary judgment because it is ‘quintessentially a question

of fact’”) (quoting Beardsley v. Webb, 30 F.3d 524, 530 (4th Cir. 1994)).

In determining whether a work environment is sufficiently severe or pervasive

to alter the terms or conditions of employment, we must look at the totality of the

circumstances, including factors such as “‘frequency 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’s work

performance.’” Faragher, 524 U.S. at 787-88 (quoting Harris, 510 U.S. at 23).

Evidence of psychological harm to the plaintiff is also a relevant factor, Harris, 510

U.S. at 23, as is evidence of harassment of plaintiff’s co-workers. See Howard, 149

F.3d at 838 (harassment of plaintiff’s co-workers relevant to show pervasiveness of

hostile environment). 

Under this framework, we should consider the fourth element of a claim of

hostile work environment harassment, namely, whether the harassment Hocevar

suffered affected a term, condition or privilege of her employment. This court has held

that in the context of Title VII “conditions of employment” may be altered by

harassment if the employee is discouraged from remaining on the job, Smith v. St.

Louis Univ., 109 F.3d 1261, 1264 (8th Cir. 1997), or the harassment caused economic

injury, affected the employee’s psychological well-being, detracted from job

performance, or kept the employee from advancing in her career. Quick, 90 F.3d at

1378. Title VII is violated when a “workplace is permeated with ‘discriminatory

intimidation, ridicule and insult’ that is ‘sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an abusive working environment,’”

where if the environment is objectively and subjectively perceived as hostile or abusive.

Id. (quoting Harris, 510 U.S. at 21) (emphasis added).
24The defendant asserts this was not a basis for the district court’s summary

judgment grant. To the contrary, the court stated:

Because none of the alleged harassment was directed at Hocevar, and

because the incidents were infrequent, the allegations fail to be

sufficiently pervasive and severe enough to alter the conditions of her

employment and create an abusive working environment. Thus,

Defendant’s motion for summary judgment on Count 1 is granted.

Dist. Ct. Mem. and Order at 9.

-30-

On the question of whether Hocevar showed sufficient evidence that the

harassment was “severe or pervasive” to alter a term or condition of employment, the

district court found the alleged incidents were neither sufficiently pervasive nor directed

at Hocevar.

24 In reaching this conclusion, the district court concluded that playing the

Jerky Boys tape was not offensive conduct; that Amundsen’s stories of animal violence

are not severe enough to constitute a hostile environment; that Amundsen’s referral to

a female doctor as a “fucking bitch” and introduction of a new employee as a “fucking

new guy” at most offended the person the comments were directed at, which was not

Hocevar. On this point, Judge Beam recognizes that the use of foul language may have

been pervasive. Because he concludes that the offensive language is not based on sex,

however, he sets this evidence aside, then proceeds to consider whether the remaining

facts of Hocevar’s case are sufficiently severe or pervasive. This approach errs

because it fails to consider the totality of the circumstances, see Harris, 510 U.S. at 23

(all evidence concerning abusiveness of a plaintiff’s working condition is relevant), and

imposes a per se test requiring harassment be “directed at” plaintiff to be actionable.

This approach has been rejected by an appellate court in Vinson v. Taylor, 753 F.2d

141, 146 (D.C. Cir. 1985), which expressly held that “[e]ven a woman who was never

herself the object of harassment might have a Title VII claim if she were forced to work

in an atmosphere in which such harassment was pervasive.” Id. (emphasis added). The

Vinson court reached this conclusion in light of EEOC Decision No. 71-909, 3 Fair
25The EEOC stated that an employer violates Title VII by maintaining a work

environment in which racial insults are countenanced. It stated that Title VII requires

an employer: 

maintain a working atmosphere free of racial intimidation or insult.

Failure to take steps reasonably calculated to maintain such an

atmosphere violates the Act. . . . That the racial insults were not directed

to [white] Charging Party, but to his fellow employees, renders the act no

less a violation. Indeed, Charting Party was so offended by the epithet

and the attitude underlying its use that he determined to resign his

employment. That Charging Party was “aggrieved” in fact and as a

matter of law is well settled.

EEOC Decision No. 71-909, 3 Fair Empl. Prac. Cas. (BNA) at 269-70 (1970).

-31-

Empl. Prac. Cas. (BNA) at 269-70 (1970) in which the EEOC found reasonable cause

to find a Title VII violation where a white employee was discharged for befriending

African American co-workers.25

Title VII provides employees the “right to work in an environment free from

discriminatory intimidation, ridicule, and insult.” Meritor, 477 U.S. at 65 (emphasis

added). The EEOC Guidelines defining sexual harassment do not limit sexual

harassment to only those actions that are directed at the plaintiff. See 29 C.F.R.

§ 1604.11 (1999) (“Unwelcome sexual advances, requests for sexual favors, and other

verbal or physical conduct of a sexual nature constitute sexual harassment when . . .

such conduct has the purpose or effect of unreasonably interfering with an individual’s

work performance or creating an intimidating, hostile, or offensive working

environment.”) (emphasis added). 

I find no case that dictates, as Judge Beam suggests, that only behavior directed

at the plaintiff, such as sexual advances, may support a claim of hostile work

environment sexual harassment. Cf. Breeding, 164 F.3d at 1159 (considering
-32-

supervisor’s fondling of genitals in view of various employees, including plaintiff, and

inappropriate comments made in front of men and women); Howard, 149 F.3d at 838

(considering harassment of employees other than plaintiff relevant to show

pervasiveness of hostile environment); Kopp, 13 F.3d at 270 (reversing grant of

summary judgment where male physician used gender-specific foul language in front

of numerous employees, both male and female, only one incident of which was directed

at plaintiff); Jenson v. Eveleth Taconite Co., 824 F. Supp. 847 (D. Minn. 1993) (class

plaintiffs prevailed on hostile work environment claim where much of derogatory and

insulting language used by men was directed at women in general). The fact that the

bulk of the harassing behavior occurred in Hocevar’s workplace in her presence yet

was directed at all women present does not, as a matter of law, preclude a finding of

a hostile work environment. This is particularly true where the harassment occurred

at the hands of Hocevar’s direct supervisor, in light of the Supreme Court’s recent

statement that harassing behavior perpetrated by a supervisor has a “greater power to

alter the environment” than similar behavior of mere co-workers. Faragher, 524 U.S.

at 805.

It is inconceivable at the summary judgment stage to suggest that the language

used by Timothy Amundsen, Hocevar’s supervisor, coupled with the behavior of two

Purdue managers, is insufficient as a matter of law to support a claim of hostile work

environment harassment under Title VII. Justice Scalia’s recent observation is

appropriate here, “[t]he real social impact of workplace behavior often depends on a

constellation of surrounding circumstances, expectations, and relationships which are

not fully captured by a simple recitation of the words used or the physical acts

performed.” Oncale, 523 U.S. at 81-82.

I disagree with Judge Beam who perceives this to be a case of isolated or

sporadic incidents of “mere offensive utterances” in the workplace. Assuming

Hocevar’s allegations as true at this early stage of summary judgment, the record

reveals a clear pattern of pervasive offensive behavior tinged with gender animus.
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Hocevar provides evidence that she was physically afraid of Amundsen, particularly

after an incident in which he punched a fellow employee, and that she found his

demeaning behavior toward women so humiliating that she sought psychiatric treatment

and medication. The allegations, if found true by a jury, are sufficient to permit a

finding that the cumulative effect of Amundsen’s conduct, along with that of other

Purdue managers, was sufficiently severe or pervasive to create a hostile work

environment based on sexual harassment. 

I therefore dissent from the affirmance granting summary judgment for hostile

work environment in violation of Title VII.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.