United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-1407

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Terri Pedroza, *

*

Plaintiff - Appellant, *

*

David Pedroza, *

* 

Plaintiff, * 

* Appeal from the United States

v. * District Court for the Western

* District of Missouri.

Cintas Corporation No. 2, doing *

business as Cintas Corporation; Cintas *

Corporation, Sponsor and *

Administrator of The Cintas *

Corporation Partner Medical Benefit *

Plan, *

*

Defendants - Appellees. *

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Submitted: December 16, 2003

 Filed: February 11, 2005 

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Before MELLOY, BEAM, and COLLOTON, Circuit Judges.

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MELLOY, Circuit Judge.
1

The Honorable Richard E. Dorr, United States District Judge for the Western

District of Missouri.

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Terri Pedroza appeals the district court’s1

 adverse grant of summary judgment

on her same-sex sexual discrimination claims under Title VII and the Missouri

Human Rights Act. Because she failed to present sufficient evidence to demonstrate

a genuine question of material fact as to whether the allegedly discriminatory

behavior was based on sex, we affirm the district court’s grant of summary judgment

on her hostile work environment claim. Consequently, we also affirm the district

court’s dismissal of her retaliation, constructive discharge, and “punitive damages”

claims.

I.

Cintas Corporation (“Cintas”) hired Pedroza to work at its Springfield,

Missouri facility on July 22, 1998. Cintas promoted her to the position of “team

leader” after a few months. Team leader is a nonsupervisory position that involves

some direction and coordination of coworkers. She worked initially in the “pants

department” but eventually worked in the “shirt hanging department” as well.

According to Pedroza’s own expert witness psychologist, Pedroza is a “concrete

person” who has difficulty understanding the subtleties of non-literal communication

such as sarcasm and whose intelligence test scores suggest borderline mental

retardation.

The instances of alleged harassment all relate to the actions of one female

coworker, another team leader, Pam Straw. As early as 1999, numerous coworkers

witnessed arguments between Straw and Pedroza, claimed that there was “friction”

between Straw and Pedroza, and claimed that the two women repeatedly “butted

heads” and “bickered” with raised voices. In fact, Straw told others that Pedroza was

not a good team leader before the first alleged instance of harassment took place.
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One coworker reported that Straw said, “Well it would be better if she [Pedroza]

knew what she was doing so she could tell the girls how to do it.” In addition, when

Straw found mistakes in the work of Pedroza’s team members, she brought the

mistakes directly to the team members rather than to Pedroza, as Pedroza argues

would have been appropriate.

According to Pedroza, Straw’s harassing behavior began in mid-May 2000 and

continued through September 2000, when Pedroza resigned. In mid-May, Straw

attempted to hold Pedroza’s hand when Pedroza showed pictures of her grandson to

Straw. When Pedroza recoiled and asked Straw to stop, Straw said, “You want me

to kiss you, honey?” Straw then grabbed Pedroza’s face and attempted to kiss her on

the mouth. Pedroza jerked away and Straw’s wet kiss landed on Pedroza’s cheek.

Straw then stated, “You love it, honey.” Pedroza went immediately to the Springfield

Plant Manager, Russ Watkins. Watkins told Pedroza that the behavior was simply

Straw’s personality. 

Pedroza also claims that on a later occasion, Straw approached her and said,

“Terri, you’re awfully quiet today. Didn’t you get a piece of ass last night?” Pedroza

responded by telling Straw to “go home to her husband.” Straw then told Pedroza

that she didn’t have a husband and said, “I want you, honey.”

In early June 2000, Pedroza asked Straw for assistance on a work-related

matter. In response, Straw bent over, pointed her own buttocks at Pedroza, rubbed

her own buttocks, and told Pedroza, “Kiss it Terri. You love it.” In late June, Straw

again grabbed Pedroza’s face. Believing that Straw was again attempting to kiss her,

Pedroza jerked away. When Pedroza jerked away, Straw ceased her attempt and said,

“Kiss my ass.” Pedroza reported this incident to her immediate supervisor, Garrett

Anderson. Anderson told Pedroza that he would take care of it.
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Throughout the summer, Straw repeatedly blew kisses at Pedroza, used foul

language around Pedroza, and rubbed her own buttocks while looking at Pedroza.

Pedroza complained of this behavior on several weekly reports that she gave to

Watkins. Another coworker, Donna Lewis, witnessed much of Straw’s behavior and

reported this behavior to management on Pedroza’s behalf. Lewis reported to Human

Resources Director Rhonda Braker that Straw grabbed and tried to kiss Pedroza and

that people talked about “which way [Straw] swung.”

Pedroza claims that she also reported Straw’s actions to Braker and told Braker

that “Pam is out there blowing kisses at me and doing all these gestures to me, and

it's not professional.” Pedroza also claims that when she told Braker Straw’s behavior

made her uncomfortable, Braker responded, “the boys are already taking care of it.”

Because Straw’s actions continued and Pedroza did not see any management

response, Pedroza secretly taped a conversation with Braker. The tape reveals that

Pedroza did mention the fact that Straw had been blowing kisses at Pedroza. Braker,

however, testified at Pedroza’s unemployment hearing that Pedroza did not complain

directly to her about Straw and that she learned of Pedroza’s complaints through an

investigation that Watkins conducted.

Near the end of July, Straw again blew kisses at Pedroza. Pedroza stated,

“Pam, don’t do that. That is sexual harassment.” To which Straw replied, “Write me

up. You love it, you know it. Write me up.” Near the end of August, Straw asked

Pedroza to let Straw temporarily borrow a worker from Pedroza’s team. After

Pedroza agreed, Straw again grabbed Pedroza’s face, and this time, kissed Pedroza

on the cheek and said, “I love ya honey.” Pedroza reported this incident to Anderson

and said that she had to leave work because she simply could not handle the stress

over Straw’s behavior. Pedroza then left work to use vacation time.

While on vacation, Pedroza received a call from Cliff Smith, the General

Manager at the Springfield facility. Smith asked Pedroza to return to work for a
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meeting with Braker. At this meeting, which Pedroza secretly recorded, Smith said

he did not want to lose Pedroza or Straw, he thought it had all been “blown out of

proportion,” “we’re tired of the friction,” and Pedroza needed to be “more open

minded to other people’s lifestyles.”

The team members who worked with Straw and Pedroza suggested that the two

switch job duties within the company. Straw and Pedroza did switch positions—a

move that involved no change in pay, title, or working conditions and that Pedroza

does not allege was a demotion. After the switch, Straw continued to blow kisses at

Pedroza, Pedroza reported to Anderson, and when Cintas management did not act,

Pedroza resigned.

Pedroza then brought this action against Cintas. She alleged sexual harassment

(hostile work environment), retaliation, constructive discharge and religious

discrimination (Pedroza is a Jehovah’s Witness) under Title VII and the Missouri

Human Rights Act. Pedroza also brought a separate claim that she characterized as

a claim for punitive damages alleging that Cintas acted with a conscious disregard for

her federally protected rights. Pedroza argued that Straw’s actions were based on sex

because they were gender specific and motivated by homosexual desire. However,

when asked in her deposition whether she knew if Straw was a lesbian, Pedroza

admitted that she did not know, stating, “I don’t know which way she may go. She

may want to go both ways. I don’t know.” After certain evidence was excluded

(Pedroza does not appeal any evidentiary rulings), the remaining evidence that

Pedroza cited to support her theory that Straw’s harassing behavior was motivated by

homosexual desire, and therefore based on sex, was (1) the arguably sexual nature of

the offensive acts themselves (repeatedly attempting to kiss Pedroza on the mouth or

cheek, grabbing Pedroza by the face, stroking Pedroza’s hand, and making suggestive

comments) and (2) Smith’s statement that Pedroza needed to be more open minded

about other people’s lifestyles. It is undisputed that Straw had five children by a

former marriage and was in a long-term, live-in, heterosexual relationship with her
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boyfriend. There was no other evidence regarding Straw’s sexual history or

preferences.

Cintas moved for summary judgment on all claims. The district court held that

there was insufficient evidence to create a question of material fact as to the issue of

whether the harassing conduct was based on sex. In addition, the district court found

that the harassing conduct was not so pervasive as to constitute a hostile work

environment. Finally, the district court found that there was no adverse employment

action. Pedroza abandoned her religious discrimination claim during the summary

judgment process, and the district court dismissed all of Pedroza’s remaining claims.

Pedroza appeals.

II.

We review the district court’s grant of summary judgment de novo, view the

record in a light most favorable to the non-moving party, and draw all reasonable

inferences in that party’s favor. McCown v. St. John’s Health Sys., Inc., 349 F.3d

540, 542 (8th Cir. 2003). Summary judgment is appropriate only where there exist

no genuine questions of material fact such that no reasonable jury could return a

verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247-48 (1986).

Title VII prohibits an employer from discriminating against an employee based

on the employee’s sex. 42 U.S.C. § 2000e-2(a)(1). Discrimination based on sex that

creates a hostile working environment violates Title VII. Harris v. Forklift Sys., Inc.,

510 U.S. 17, 21 (1993) (“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,

Title VII is violated.”) (internal citations and quotation marks omitted). To state a

prima facie case for a claim of sexual discrimination based on a hostile work
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environment, an employee must show: (a) she belongs to a protected group; (b) she

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

(d) the harassment affected a term, condition, or privilege of employment; and (e) her

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

remedial action. McCown, 349 F.3d at 542. In the present case, we address the third

requirement, whether the harassment was based on sex. 

The based on sex requirement forces a plaintiff to prove that she was the target

of harassment because of her sex and that the offensive behavior was not merely nonactionable, vulgar behavior. This distinction exists because “Title VII does not

prohibit all verbal or physical harassment in the workplace” and is not “a general

civility code for the American workplace.” Oncale v. Sundowner Offshore Servs.,

Inc., 523 U.S. 75, 80 (1998) (recognizing a claim for same-sex harassment that

created a hostile work environment where the alleged harassment forced an oil

platform worker in the Gulf of Mexico to quit his job out of a fear of same-sex rape).

Consequently, to succeed on a hostile work environment claim under Title VII, a

plaintiff must show “that the conduct at issue was not merely tinged with offensive

sexual connotations, but actually constituted ‘discrimina[tion] . . . because of . . .

sex.” Id. at 81 (quoting 42 U.S.C. § 2000e-2(a)(1)).

As we recognized in McCown, the Supreme Court set forth a non-exhaustive

list that included three possible evidentiary routes same-sex harassment plaintiffs may

follow to show that harassment was based on sex:

First, a plaintiff can show that the conduct was motivated by sexual

desire. Second, a plaintiff can show that the harasser was motivated by

a general hostility to the presence of the same gender in the workplace.

And third, a plaintiff may offer direct comparative evidence about how

the harasser treated both males and females in a mixed-sex workplace.
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McCown, 349 F.3d at 543 (citing Oncale, 532 U.S. at 80-81). Here, the second and

third methods are not applicable. The relevant workplace appears to have been

exclusively female, and, at any rate, Pedroza offers no comparative evidence

regarding the treatment of males at Cintas. Further, Pedroza concedes that Straw was

not generally hostile towards other women in the workplace.

What remains is the question of whether, based on the summary judgment

record taken in a light most favorable to Pedroza, any reasonable jury could find that

sexual desire motivated Straw’s actions towards Pedroza. Pedroza points to the facts

that one coworker suggested “people” questioned “which way [Straw] swung” and

General Manager Smith told Pedroza to be more open to other people’s lifestyles. We

may not consider the comments or rumors from non-management coworkers

regarding Straw’s sexual orientation because the district court granted Cintas’s

motion in limine to exclude these comments, and Pedroza does not contest that ruling.

We also refuse to consider Smith’s comment because, although the district court file

contained a transcript of the recorded conversation in which Smith made the

“lifestyle” comment, Pedroza did not bring this statement to the attention of the

district court in her brief in opposition to Cintas’s summary judgment motion or in

any counter statement of the facts before the district court. See Crossley v. GeorgiaPacific Corp., 355 F.3d 1112, 1114 (8th Cir. 2004) (noting the burden on a party

resisting summary judgment to designate the specific facts that create the triable

question of fact); Jaurequi v. Carter Mfg., Co., 173 F.3d 1076, 1085 (8th Cir. 1999)

(“[A] district court is not ‘obligated to wade through and search the entire record for

some specific facts which might support the nonmoving party’s claim.’”) (internal

citation omitted).

Pedroza therefore must rely solely on the nature of Straw’s harassing actions

themselves—grabbing Pedroza’s face and attempting to kiss her on the mouth and

cheek, attempting to hold Pedroza’s hand, pointing to her own buttocks and telling

Pedroza to “kiss it,” saying to Pedroza “kiss my ass” when Pedroza asked for help,
2

We disagree with Straw regarding the inferences that may flow from the facts

that she had children and had been in a long-term relationship with a man. These

facts tend to prove only that Straw was not strictly homosexual. They do not preclude

a jury from finding that Straw was motivated by some degree of homosexual desire

towards Pedroza. It would be naive and artificial for us to conclude otherwise. 

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blowing kisses at Pedroza, and saying that she didn’t have a husband and that she

wanted Pedroza—as evidence that sexual desire motivated Straw’s behavior. 

Cintas, on the other hand, notes that it was undisputed that Straw had five

children from a former marriage; Straw was in a long-term, live-in, heterosexual

relationship with her boyfriend; Straw and Pedroza had a generally antagonistic

relationship with each other that preceded any allegedly harassing conduct; and,

according to Pedroza’s own expert, Pedroza was a “concrete person” of limited

intelligence who had difficulty understanding sarcasm and who tended to take

statements literally. Pedroza asks us to conclude that a jury question exists as to

whether sexual desire motivated Straw’s behavior. Cintas asks us to conclude that

the evidence permits only one reasonable interpretation, namely, that Straw was a

vulgar and boorish coworker who sought to antagonize Pedroza and that Pedroza

misunderstood and misinterpreted Straw’s actions.2

To buttress its argument, Cintas points to a line of cases from this and other

circuits wherein courts found that instances of alleged same-sex harassment were not

“based on sex” but rather, were vulgar and boorish behavior that was “tinged with

offensive sexual connotations” but not suggestive of motivation by sexual desire.

See McCown, 349 F.3d at 541-43 (finding that harassment was not motivated by

sexual desire where the victim suggested the harasser was “just trying to ‘irritate’

him,” and the harasser grabbed the victim on the waist, chest, and buttocks, pressed

against the victim in simulated intercourse, and attempted to put objects in the

victim’s buttocks); Linville v. Sears, Roebuck & Co., 335 F.3d 822, 823-24 (8th Cir.

2003) (finding harassment not based on sex where the harasser repeatedly struck the
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victim in the scrotum); Davis v. Coastal Int’l Sec., Inc., 275 F.3d 1119, 1125 (D.C.

Cir. 2002) (finding that harassment was not based on sex where two harassers had a

pre-existing antagonistic relationship with the victim and repeatedly grabbed their

own crotches, made kissing gestures, and described oral sex towards the victim);

Johnson v. Hondo, Inc., 125 F.3d 408, 410-12 (7th Cir. 1997) (finding that

harassment was not based on sex where the harasser repeatedly brushed against the

victim, grabbed and manipulated his own crotch in front of the victim, and repeatedly

described oral sex towards the victim). The Seventh Circuit in Johnson explained the

reasoning that supported this line of cases:

Most unfortunately, expressions such as . . . “kiss my ass,” and “suck my

dick,” are commonplace in certain circles, and more often than not,

when these expressions are used (particularly when uttered by men

speaking to other men), their use has no connection whatsoever with the

sexual acts to which they make reference-even when they are

accompanied, as they sometimes were here, with a crotch-grabbing

gesture. Ordinarily, they are simply expressions of animosity or juvenile

provocation[.]”

Johnson, 125 F.3d at 412. Straw urges us to hold as a matter of law that Pedroza’s

actions are analogous to the harassers’ actions in the above cases and that no

reasonable jury could infer homosexual desire from Straw’s actions.

Pedroza counters that, because this case involves allegations of same-sex

harassment between females rather than same-sex harassment between males, we

must not compare the facts of this case to the above cases that involved only male,

same-sex harassment. Instead, she argues, we must apply a different standard in the

context of female same-sex harassment to find the line that separates permissible

albeit unpleasant and vulgar behavior from prohibited behavior that is based on sex.

Pedroza points to cases such as Johnson in which the court specifically noted the

common use of vulgar expressions in the workplace “particularly when uttered by
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men speaking to other men.” Id. Pedroza concludes that, because such bawdy,

“locker room” behavior is not as commonplace among females, a reasonable jury

could more readily infer actual sexual desire based on similar statements or acts by

females, and, accordingly, we should be more hesitant to grant summary judgment in

a case that involves female same-sex harassment. 

On this specific point, we disagree with Pedroza. First, we do not find it

appropriate in the context of Title VII to establish dual standards for the “based on

sex” showing required in male and female same-sex harassment cases. Further, even

if we were inclined to draw such a distinction, Pedroza offers nothing but her own

unsupported opinions as to the prevalence of vulgar language and behavior in female

dominated workplaces. Accordingly, we reject Pedroza’s argument that we cannot

look to cases that involve male same-sex harassment to determine whether a female,

same-sex harassment plaintiff has made the showing required to create a jury question

under the based on sex requirement.

Looking at the entirety of the evidence that we may consider, and comparing

the facts of this case to the developing body of authority under the “based on sex”

analysis in same sex harassment cases, we believe the district court correctly

determined that the evidence to suggest motivation by homosexual desire was

insufficient to create a triable question of fact. Accordingly, Pedroza’s hostile work

environment claim fails.

Pedroza raises no separate arguments based on state law, and we hold that

Pedroza’s retaliation and constructive discharge claims fail for the same reason as her

hostile work environment claim. Pedroza’s retaliation and constructive discharge

claims also fail due to the absence of an adverse employment action. Pedroza

voluntarily switched positions after Straw and Pedroza’s coworkers suggested the

switch. There was no diminution in pay or benefits, and working conditions did not

change in a manner that we may characterize as adverse. Pedroza argues that she was
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unfairly criticized after the switch, but criticism in a new position is to be expected.

Finally, regarding Pedroza’s separate claim for punitive damages, even if we had

found that her underlying claims survived summary judgment, there is nothing that

would justify our placing the present case in the “narrow class of cases” where the

employer acts “with malice or reckless indifference” to the federally protected rights

of its employees. Lawrence v. CNF Transp., Inc., 340 F.3d 486, 495 (8th Cir. 2003).

Here, the undisputed evidence shows that Cintas management attempted to curtail

Straw’s actions. As such, even if Pedroza had ultimately prevailed, an award of

punitive damages would not be appropriate.

We affirm the judgment of the district court.

COLLOTON, Circuit Judge, concurring.

I concur in the opinion of the court, with a brief clarification concerning

footnote 2. I agree that the facts that Straw had children and had been in a long-term

relationship with a man “do not preclude a jury from finding that Straw was

motivated by some degree of sexual desire towards Pedroza,” ante, at 9 n.2, but I

think it is an overstatement to say that “[t]hese facts tend to prove only that Straw was

not strictly homosexual.” Id. A long-term heterosexual relationship is relevant to

whether Straw acted out of homosexual desire – that is, it has a “tendency” to make

the existence of homosexual desire less probable than if, say, Straw had been in a

long-term homosexual relationship, see Fed. R. Evid. 401 – but it is by no means

conclusive on the point. I thus agree that Cintas’s argument in favor of summary

judgment on this basis should be rejected.

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