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Disclaimer: The case on which this summary is based may no longer be current law. Also, if the case was decided on summary judgment, the court recited the "facts" in the light most favorable to the non-movant, which may not be the true facts.


Same-sex harassment between females was not "because of sex."

Pedroza v. Cintas Corp. No. 2, 397 F.3d 1063 (8th Cir. February 11, 2005) - This is a Title VII same-sex harassment action. Terri Pedroza was a "team leader." This is a nonsupervisory position that involves some direction and coordination of co-workers. Pam Straw was another team leader. Straw harassed Pedroza from mid-May 2000 through September 2000, when Pedroza resigned. The issue presented is whether Straw's harassment of Pedroza was because of sex. Based on Oncale v. Sundowner Offshore Services, Inc., 118 S.Ct. 998 (March 4, 1998), there are at least three possible evidentiary routes that plaintiffs may follow to show that same-sex 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. Pedroza follows the first evidentiary route. Pedroza's evidence consists of the following incidents. Straw attempted to hold Pedroza's hand when Pedroza showed pictures of her grandson to Straw, and when Pedroza recoiled, 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." On another occasion, Straw thought Pedroza was being quiet and said: "Didn't you get a piece of ass last night?" When Pedroza told her to go home to her husband, Straw told her that she did not have a husband and she said: "I want you, honey." On another occasion, Straw pointed at her own buttocks and said: "Kiss it Terri. You love it." On another occasion Straw grabbed Pedroza's face. Pedroza jerked away and Straw said: "Kiss my ass." Throughout the summer of 2000, Straw repeatedly blew kisses at Pedroza, used foul language around her and rubbed her own buttocks while looking at Pedroza. Near the end of July, Straw again blew kisses. Pedroza told her it was sexual harassment. Straw said: "Write me up. You love it, you know it. Write me up." In late August, Straw asked Pedroza if she could borrow a co-worker. Pedroza agreed. Straw grabbed Pedroza's face, kissed Pedroza on the cheek and said: "I love ya honey." Straw continued blowing kisses and eventually Pedroza resigned. In analyzing whether Straw's behavior was based on sex, the Court took into account the following additional facts: (1) Straw had five children from a former marriage and she was in a long-term, live-in, heterosexual relationship with her boyfriend; (2) Pedroza's expert testified that she is a person of limited intelligence who has difficulty understanding sarcasm; and (3) there was friction between Straw and Pedroza before the harassment started. Based upon the entirety of the evidence, the Court holds that the district court correctly determined that the evidence to suggest motivation by homosexual desire was insufficient to create a triable question of fact. In reaching this conclusion, the Court looked to same-sex cases from other Circuits, including a Seventh Circuit case which noted that expressions such as "kiss my ass" and "suck my dick" are usually expressions of animosity or juvenile provocation. [Editor's Note: While I think a finder of fact could determine that the harassment was not because of sex, the case is before the Eighth Circuit on a grant of summary judgment. I think the district court and Eighth Circuit erred by failing to draw all reasonable inferences in favor of Pedroza. Compare this case with Dick v. Phone Directories Co., Inc., 397 F.3d 1256 (10th Cir. February 11, 2005).] Click here to see actual case.





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