1

The Honorable James E. Gritzner, United States District Judge for the

Southern District of Iowa, sitting by designation.

2

The Honorable Fernando J. Gaitan, Jr., United States District Judge for the

Western District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-3057

___________

Kathy Lynn Alagna, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Smithville R-II School District, *

*

Appellee. *

___________

Submitted: January 14, 2003

Filed: April 3, 2003

___________

Before WOLLMAN and MURPHY, Circuit Judges, and GRITZNER,1

 District Judge.

___________

WOLLMAN, Circuit Judge.

Kathy Alagna appeals from the district court’s2

 adverse grant of summary

judgment on her sexual harassment and constructive discharge claims against the

Smithville R-II School District (the District), her former employer. We affirm.
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I.

The District hired Alagna as a social studies teacher in 1993. In 1996, Alagna

began working as a guidance counselor at the high school. The District had hired

David Yates in 1977 as a science teacher. At all times relevant to this action, Yates

was a tenured teacher at the high school. According to his affidavit, Yates, who is

five feet nine inches tall, has weighed between 300 and 450 pounds since at least the

year 1996. As part of Alagna’s practicum for her master’s degree in psychology,

Alagna interviewed Yates in the spring of 1996. They discussed his feelings of

personal failure, financial problems, and marital difficulties. During the summer of

1998, Yates called Alagna’s home “probably” more than twenty times to discuss his

depression, suicidal thoughts, and marital problems. Yates began some of these calls

by asking in a low voice if Alagna was alone, whether she could talk, and whether the

calls were causing problems between her and her husband. Alagna could not recall

whether she ever asked Yates to stop calling her at home. At the beginning of the

1998-99 school year, Alagna reported the series of calls to Wayne Krueger, the high

school principal. Alagna told Krueger that the calls annoyed her and that Yates had

talked to her about suicide. She could not recall whether she asked Krueger to take

any action with respect to Yates. Although Krueger did not speak to Yates about the

phone calls, Yates did not call Alagna at home after the school year started.

During the fall 1998 semester, Yates visited Alagna in her office an average of

two to three times per week. On one such visit, Yates stated “I purposely kept the

door open because I don’t want your reputation to be harmed. I don’t want people to

think things about us.” Yates discussed his failed relationships with other women,

his relationship with his wife, and other intimate details of his personal life. On

several occasions Yates would end the conversation by moving close to Alagna,

touching her arm, looking her up and down, and saying that he “loved” her and that

she was “very special.” Although Yates’s classroom was on the first floor, he

regularly waited outside Alagna’s second-floor office and stared at her as she walked
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by. He often told her, “You look very nice today, Ms. Alagna.” According to

Alagna’s deposition testimony, Yates never discussed sexual activities related to his

relationships, never sexually propositioned her, and never touched her in any area

other than her arm.

During the 1998 Christmas break, Yates called Alagna at home three times to

discuss his financial problems and his feelings of isolation from his family. He told

Alagna that he received no support at home and that he was reliant on his students to

give him self-worth. In January and early February of 1999, Yates continued to visit

Alagna in her office to discuss his feelings of failure, depression, and inadequacy.

On February 8, 1999, Yates placed two “romance novels” in Alagna’s faculty mailbox

at school. The novels were written in the 1870s by George MacDonald, a writer of

Christian historical fiction. Immediately after Alagna removed the books from her

mailbox and realized that they were from Yates, she put them back in Yates’s

mailbox. Although she could not recall the exact words, Alagna testified that

Krueger had implied something sexual about the books.

On February 8, 1999, Alagna expressed her concern about Yates’s behavior to

Robert Leachman, the District’s assistant superintendent and compliance coordinator

for complaints of sexual harassment. On February 11, 1999, Alagna and another high

school teacher met with Principal Krueger and complained about Yates’s conduct.

They related incidents involving other female faculty and students and asked Krueger

to instruct Yates that he was to have no further contact with Alagna. Alagna

memorialized this meeting in a memorandum to Krueger. Krueger met with Yates

and orally reprimanded him about his conduct related in the complaints from female

students and faculty. Krueger memorialized the meeting and reprimand in a

memorandum to Yates dated February 11, 1999. On February 12, Yates told Alagna

that Krueger had instructed him not to speak with females alone and not to continue

talking to Alagna. Although Krueger gave Yates a sexual harassment pamphlet and
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required his attendance at a previously scheduled sexual harassment seminar, he did

not specifically direct Yates to stay away from Alagna.

Yates initially complied with Krueger’s directions, but in April he resumed

going to Alagna’s office to discuss his personal dissatisfaction with life and his

feelings of isolation. Alagna reported these visits to Krueger, who responded by

asking Alagna if she could “imagine having sex with David Yates.” Yates did not

call Alagna during the summer of 1999. During the summer, Alagna applied for jobs

with other school districts and received two job offers. One district offered Alagna

a job as a high school counselor that would have paid her more than she made at the

District. Alagna declined the offer, citing her role in helping another Smithville

teacher write two grants, the nicer facilities at Smithville, and because “Smithville

was the known. I knew what I had to do. I knew what the issues were and I knew

what the problems were.”

Alagna returned to the District for the new school year in August of 1999.

Although Yates did not call Alagna at home or visit her office, he often stopped her

in the hallway and asked her to talk. In addition to thanking Alagna for telling him

about professional and personal boundaries, Yates continued to invade Alagna’s

personal space and make comments such as “I just want you to know how much I

love you.” Alagna perceived his eye contact, tone of voice, and demeanor to be of

a “sexual nature.” Alagna met with Krueger in November 1999 and asked him to

remind Yates of his prior directives. Krueger typed a note to Yates, informing him

that female faculty members believed he had “crossed the boundary” with them and

reminding him that the February 1999 directives were still in place. Krueger also

gave Yates a second copy of the sexual harassment policy. Despite another request,

Krueger did not specifically direct Yates to stay away from Alagna. Alagna’s fear led

her to work with her door locked, stop eating in the cafeteria, avoid the hallways

when possible, and carry pepper spray.
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On January 4, 2000, Yates gave Alagna a wrapped gift and told her to open it

when she was alone. Alagna met with Krueger later that day and told him about

Yates’s behavior. In a memorandum dated January 5, 2000, Alagna advised Krueger

that she had spoken with an attorney and requested additional interventions regarding

Yates. After Krueger and Alagna met on January 6, Krueger specifically directed

Yates not to be alone with Alagna. Other than a verbal and written reprimand, no

disciplinary action was taken against Yates. Shortly thereafter, Alagna took an

extended leave of absence, from which she did not return.

On January 13, 2000, Assistant Superintendent Leachman wrote a letter to

Alagna acknowledging his receipt of her January 5 memorandum and informing her

that he was “taking all measures short of termination” to stop Yates’s inappropriate

behavior toward her. The letter went on to state that Yates was to contact Alagna

only regarding student issues, and then only in the presence of an administrator, and

that any violation of those directions could result in Yates’s termination. The letter

requested that Alagna contact Leachman to discuss the matter. Notwithstanding a

January 25 follow-up letter reiterating this request, Alagna never contacted anyone

at the school to discuss the disciplinary measures taken against Yates. 

In February 2000, the District offered Alagna a position as a counselor at the

middle school. Although the position carried the same salary and benefits, Alagna

declined because she did not feel that she should have to be the one to leave the high

school. On February 28, 2000, Yates submitted his resignation, effective the end of

the school year. The District informed Alagna that Yates was retiring and that her

position was still available for the next school year. Alagna resigned on May 23,

2000.

Alagna was not the only target of Yates’s inappropriate behavior during the

1998-99 and 1999-2000 school years. Several female faculty and students reported

that Yates told them they looked pretty, told them “I love you,” and invaded their
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personal space by, for example, rubbing against them as he walked between desks.

Some female students requested and received assignments to different classrooms

after incidents with Yates. These students complained that Yates had stood too close

to them; he had asked one to stay after school so he could carve her face into a

wooden block; and he had commented to one that the shirt she was wearing made her

look “really good.” Yates exhibited many of the same behaviors toward male

employees. Yates phoned male employees at their homes, using similar introductory

phrases, such as “Can you talk?” and “I hope this is not causing problems with your

wife.” Yates visited the offices or classrooms of male teachers to discuss his personal

problems, gave them unsolicited gifts, invaded their personal space, and made

comments to them such as, “I love you” and, “you are very special.”

II.

We review the district court’s grant of summary judgment de novo. Scusa v.

Nestle U.S.A. Co., 181 F.3d 958, 964 (8th Cir. 1999). “Summary judgment is

appropriate if the movant has shown that there is no genuine issue of material fact and

that the movant is entitled to judgment as a matter of law; in assessing the evidence

we take the non-movant’s evidence as true, drawing all reasonable inferences in his

or her favor.” Id. (citing Fed. R. Civ. P. 56(c); Kopp v. Samaritan Health Sys., Inc.,

13 F.3d 264, 268-69 (8th Cir. 1993)). Alagna’s claims arise under both Title VII and

the Missouri Human Rights Act. We analyze Alagna’s claims under the Missouri

Human Rights Act, Mo. Rev. Stat. §§ 213.010 – .137, in the same manner as we

analyze her Title VII claims. Duncan v. General Motors Corp., 300 F.3d 928, 930 n.2

(8th Cir. 2002).

[T]o establish a claim of hostile work environment sexual harassment by

non-supervisory co-workers, a plaintiff must establish that (a) she

belongs to a protected group; (b) that she was subject to unwelcome

sexual harassment; (c) that the harassment was based on sex; (d) that the

harassment affected a term, condition, or privilege of employment; and
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(e) that the employer knew or should have known of the harassment and

failed to take proper remedial action.

Scusa, 181 F.3d at 965 (citing Caviness v. Nucor-Yamato Steel Co., 105 F.3d 1216,

1222 (8th Cir. 1997); Kopp, 13 F.3d at 269). The district court determined that

Alagna could not prove element “c”, that the alleged harassment was based on sex,

or element “d”, that it affected a term, condition, or privilege of employment. We

agree that Alagna failed to raise a genuine issue of fact regarding whether the

harassment affected a term, condition, or privilege of employment. Accordingly, we

express no opinion on whether the evidence suggesting that the allegedly harassing

behavior was also directed toward male employees is sufficient to establish an “equal

opportunity” harasser defense. See Kopp, 13 F.3d at 269 (requiring a Title VII

plaintiff to prove that one sex was treated worse than the other); Holman v. Indiana,

211 F.3d 399, 403 (7th Cir. 2000) (“[B]ecause Title VII is premised on eliminating

discrimination, inappropriate conduct that is inflicted on both sexes, or is inflicted

regardless of sex, is outside the statute's ambit.”).

Title VII does not authorize us to impose a “general civility code.” Faragher

v. City of Boca Raton, 524 U.S. 775, 788 (1998). To be actionable under Title VII,

the alleged harassment must be so severe or pervasive as to affect a term, condition,

or privilege of employment. Duncan, 300 F.3d at 934. “[A] sexually objectionable

environment must be both objectively and subjectively offensive, 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 787-88. We examine the totality of the

circumstances, including the frequency and severity of the discriminatory conduct;

“whether it is physically threatening or humiliating, or a mere offensive utterance;

and whether it unreasonably interferes with an employee’s work performance.” Id.;

Duncan, 300 F.3d at 934. These standards are demanding – to be actionable, conduct

must be extreme and not merely rude or unpleasant to affect the terms and conditions

of employment. Faragher, 524 U.S. at 788; Duncan, 300 F.3d at 934.
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Considered as a whole, Yates’s conduct, however inappropriate, was not

sufficiently severe or pervasive to satisfy the high threshold for actionable harm.

Yates strikes us as being a troubled individual, insecure, depressed, and in need of

constant reassurance of his worth as a human being. His “I love you” comments to

Alagna, when considered in the light of his plaintive calls for reaffirmation of selfworth and the absence of any sexual advances on his part, are more indicative of one

in search of friendship than of a sexual predator. His conduct was far less

objectionable than that which we found insufficiently severe or pervasive to support

the plaintiff’s hostile environment claim in Duncan. There, we agreed that the

harasser’s behavior was “boorish, chauvinistic, and decidedly immature,” but

nonetheless concluded as a matter of law that it did not create an objectively hostile

work environment. 300 F.3d at 935.

The cases on which Alagna relies involved conduct far more severe than the

conduct directed at her. See Breeding v. Arthur J. Gallagher and Co., 164 F.3d 1151,

1159 (8th Cir. 1999) (finding a supervisor’s fondling of his genitals in front of the

victim and his use of lewd and sexual language sufficiently offensive to alter the

victim’s working conditions); Howard v. Burns Bros., Inc., 149 F.3d 835, 838 (8th

Cir. 1998) (citing repeated sexual innuendos, intentional brushing up against the

victim’s buttocks, lewd jokes punctuated by gestures including touching breasts and

thrusting hips); Bales v. Wal-Mart Stores, Inc., 143 F.3d 1103, 1107, 1109 (8th Cir.

1998) (characterizing as “offensive, oftentimes overtly sexual or personal” evidence

including the harasser’s reference to a marker as a “big red penis,” a sexually

suggestive birthday card, and a conversation with the victim about the harasser’s

dream of her wearing a sexy red dress). Although harassing behavior need not be

sexual in nature to make out a Title VII claim, Smith v. St. Louis Univ., 109 F.3d

1265, 1269 (8th Cir. 1997), Yates’s conduct toward Alagna does not satisfy the

threshold of proof required by our cases.
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For the same reasons that we conclude Alagna’s work environment was not

objectively hostile, it follows that her work environment was not so intolerable as to

compel a reasonable person to resign. See Breeding, 164 F.3d at 1160. Thus, her

constructive discharge claim must also fail.

The judgment is affirmed.

A true copy.

Attest:

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