IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-10869

Summary Calendar

JULIE KUMMERLE, 

Plaintiff - Appellant

v.

EMJ CORPORATION, 

Defendant - Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:11-CV-2839

Before JONES, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Julie Kummerle (“Kummerle”) appeals theFED.R.CIV.

P. 12(c) dismissal of her Title VII retaliation claim. She alleges that her former

employer, EMJ Corporation (“EMJ”), terminated her because she complained

about public displays of affection between a male supervisor and female coworker. Because Kummerle’s pleadings fail to establish that she had a

reasonable belief that EMJ’s work environment violated Title VII, we AFFIRM.

 

United States Court of Appeals

Fifth Circuit

F I L E D

May 16, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

 Case: 12-10869 Document: 00512244175 Page: 1 Date Filed: 05/16/2013
No. 12-10869

Kummerle asserts that her former supervisor, Ray Catlin (“Catlin”), and

another employee, Daisy Owens (“Owens”), created a “sexually charged

atmosphere” at EMJ by frequently engaging in consensual intimate conduct

(such as Catlin’s rubbing Owens’s back) in front of other employees. She

contends that the public displays of affection, while not sexually explicit, were

offensive to observers. In May 2011, Kummerle and another employee, Carolyn

Paulus (“Paulus”), complained to EMJ’s Chief Operating Officer about the

discomfort they and other females in the office felt as a result of the behavior. 

Shortly thereafter, Kummerle was terminated by Catlin.

Kummerle sued EMJ, asserting hostile work environment and retaliation

claims under Title VII. After concluding that Kummerle failed to plead facts

establishing a reasonable inference that either the unwelcome harassment was

based on Kummerle’s sex or that her belief that she was subjected to a hostile

work environment was objectively reasonable, the district court dismissed both

claims with prejudice. Kummerle appeals the dismissal of her retaliation claim.

We review a district court’s order granting a Rule 12(c) motion for

judgment on the pleadings de novo, using the same standards applied to a Rule

12(b)(6) motion to dismiss. Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir.

2004). We accept a complaint’s well-pleaded facts as true and view them in the

light most favorable to the plaintiff. Id. “Threadbare recitals of a cause of

action, supported by mere conclusory statements, do not suffice.” Ashcroft v.

Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). 

Title VII makes it unlawful for an employer to retaliate against an

employee who opposes an employment practice that violates Title VII. 42 U.S.C.

§ 2000e-3(a). To establish a retaliation claim, a plaintiff must plead facts

showing that she had a reasonable belief that the employer was engaged in an

unlawful employment practice. Byers v. Dallas Morning News, 209 F.3d 419,

428 (5th Cir. 2000).

2

 Case: 12-10869 Document: 00512244175 Page: 2 Date Filed: 05/16/2013
No. 12-10869

Kummerle argues that she reasonably believed that the public displays of

affection between Catlin and Owens created a hostile work environment in

violation of Title VII. We disagree. As adequately explained by the district

court, Kummerle’s pleadings contain no indication that the consensual intimate

conduct between Catlin and Owens was either motivated by a discriminatory

intent toward women or sufficiently egregious to come close to establishing an

unlawful work environment.1 The reasonableness of Kummerle’s belief is

further undermined by the fact that she fails to cite any case holding that public

displays of affection in the workplace are sufficient to cause a violation of Title

VII. But cf. Bourbeau v. City of Chicopee, 455 F. Supp. 2d 106, 113 (D. Mass.

2006) (“The court is aware of no decision under Title VII . . . which would extend

hostile work environment protection to an employee . . . who simply witnessed 

. . . amorous contact [such as kissing, back rubbing, and intimate embracing]

between two co-workers.”). Offensive and unprofessional behavior by co-workers

is not, alone, a violation of law. Therefore, the district court correctly held that

Kummerle’s retaliation claim fails as a matter of law. 

The judgment of the district court is AFFIRMED. 

 

1 Contrary to Kummerle’s assertions, the district court did not err by applying a

“reasonable person” standard instead of a “reasonable woman” standard when it evaluated the

hostility of the alleged harassment. See, i.e., Butler v. Ysleta Indp. Sch. Dist., 161 F.3d 263,

269 (5th Cir. 1998) (stating that a sexually objectionable environment must be “one that a

reasonable person would find hostile or abusive” (quoting Faragher v. City of Boca Raton,

524 U.S. 775, 787, 118 S. Ct. 2275, 2283 (1998)) (emphasis added)). The term “reasonable

person” is a gender neutral way of referring to a “reasonable woman” or a “reasonable man.” 

 

3

 Case: 12-10869 Document: 00512244175 Page: 3 Date Filed: 05/16/2013