### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-10869 Summary Calendar

JULIE KUMMERLE, Plaintiff - Appellant

v. EMJ CORPORATION, Defendant - Appellee

A ppeal from the United States District Court f or the Northern District of Texas USDC No. 3:11-CV-2839

Before JONES, DENNIS, and HAYNES, Circuit Judges. PER CURIAM: * P laintiff-Appellant J ulie Kummerle (“K u m m e r l e ” ) a p p e a l s t h e F E D

. R

. C IV

. P. 12(c) dismissal of her T itle VII retaliation claim. She alleges that her former employer, EMJ Corporation (“EMJ”), terminated her b ecause she com p l a i n e d about public displays of affection between a m a l e supervisor and female coworker. Because K ummerle’s pleading s f ail t o establish that she had a reasonable belief that EMJ’s w ork environment violated Title VII, we AFFIRM. U n i t e d S t a te s C o u r t o f A p p e al s

F i f t h C i rc u i t 

### F I L E D May16, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-10869 Document: 00512244175 Page: 1 Date Filed: 05/16/2013No. 12-10869

Kummerle asserts t hat her former supervisor, Ray Catlin (“Catlin”), and another employee, D aisy Owens ( “Owens”), created a “sexually c h arged atmosphere” at E MJ by frequently e ngaging in consensual intimate conduct (such as Catlin’s rubbing Owens’s back) in front of other empl o y e e s
. S he contends that the public displays of affection, while not sexually explicit, were offensive to o bservers. In May 2011, Kummerle and another employee, Carolyn Paulus ( “Paulus”), c o mplained to EMJ’s Chief Operating Officer about the disc o mfort they and other females i n the o ffice felt as a result of the behavior. Shortly thereafter, Kummerle was terminated by Catlin. Kummerle sued EMJ, asserting h ostile work e nvironment and retaliation claims under Tit l e V I I

. After concluding that Kummerle failed to plead facts establishing a reasonable i nference that either the unwelcome harassment was based on Kummerle’s sex or that her belief that she w a s s u b j ected to a hostile work environment was objectively reasonable, the district court dismissed both claims with prejudice. Kummerle appeals t he dismissal of her retaliation claim. We review a district court’s order granting a R u le 12(c) motion for judgment o n the pleadings de novo , u sing the same standards applied to a Rule 12(b)(6) motion to dismiss. Johnson v. Johns o n , 385 F.3d 503, 529 ( 5th Cir. 2004). We accept a complaint’s well-pleaded facts as true a nd view them in the light most favorable t o t h e p l a i n t iff. Id

. “Threadbare recitals of a c ause of action, supported b y mere conclusory stateme n t s, do not s uffice.” A shcroft v. Iqbal , 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). T i t le VII makes it unlawful for a n employer to retaliate against a n employee who opposes an employment practice that violates Title VII. 42 U.S.C. § 2000e-3(a). To establish a retalia t i o n 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. D allas M o rning N

e w s , 2 0 9 F.3d 419, 428 (5th Cir. 2000).

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

Kummerle argues that she reasonably believed that t he public d isplays of affection between Catlin and Owens c reated a hostile w ork e n v i r onment in violation of Title V II. We d isagree. As adequately explained by t h e d i s t r ict court, Kummerle’s pleadings contain no indication that the c onsensual intimate conduct between Catlin and Owens was e i t her motivated by a d iscriminatory intent toward women or sufficiently egregious t o come close to establishing an unlawful work environment. 1 The r easonableness of K ummerle’s b elief is further undermined by the fact that she fails to cite a ny case h olding that public displays of affection in the workplace are s ufficient to cause a v i olation of Title VII. B ut cf. Bou r b e a u v. City of Chicopee , 455 F. Supp. 2d 106, 113 (D. Mass. 2006) (“The court is aware of no d ecision under T itle VII

. . . which w ould extend hostile work environment protection to an employee . . . who simply witnessed

. . . a morous conta c t [ s u c h as kissing, back rubbing, a nd intimate embracing] between two co-workers.”). O f fensive and un p r o f

e s s i o n a l b e h a v i o r 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 K um merle’ s a s s e r t i o n s , the d is trict court did not err by ap p lying a “reas onable p ers on” s tand ard ins tead of a “reas onable w om an” s tand ard when it evaluated the hos tility of the alleged haras s m ent. See, i

. e. , Butl er v
. Ysl eta Indp

. Sch. D i st. , 161 F. 3d 263, 269 ( 5th Cir. 1998) ( s tating that a s exually obje c t ionable environm ent m us t be “one that a rea sona bl e p erson w ould find hos tile or abus ive” ( q u o t i n g Fa ra g her v
. Ci t

y of Boca Ra ton , 524 U

. S. 775, 787, 118 S. C t. 2275, 2283 ( 1998) ) (em p has is ad d ed ) )

. The term “reas onable p ers on” is a gend er neutral w ay of ref erring to a “reas onable w om an” or a “reas onable m an. ”

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