Marcia A. Hocevar v. Purdue Frederick Company Timothy Amundsen
79 Empl. Prac. Dec. (CCH) 40,270, 223 F.3d 721, 2000 U.S. App. LEXIS 19061 (2000)
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Rule of Law:
An employee establishes a triable issue of fact for retaliatory discharge when termination occurs in close temporal proximity to protected activity and is supported by a history of antagonism from a supervisor. However, a hostile work environment claim may fail at summary judgment if the plaintiff participated in the allegedly offensive conduct and the harassment was not consistently directed at the plaintiff or other employees.
Facts:
- Marcia Hocevar was a highly successful sales representative for Purdue Frederick Company (Purdue) since 1988, receiving multiple promotions and top performance ratings.
- In June 1994, Hocevar transferred to Minnesota and was placed under the supervision of Timothy Amundsen, a former co-worker whom she had consistently outperformed.
- Amundsen gave Hocevar the lowest possible performance ratings, accused her of falsifying reports (an investigation cleared her), and took away a lucrative portion of her sales territory, despite her exceeding sales quotas.
- Over a two-year period, Amundsen pervasively used profane and misogynistic language, referring to women as 'bitches,' 'fucking bitches,' and 'fat fucking bitches,' and shared obscene materials like the Jerky Boys audiotape at meetings.
- Other Purdue managers, including a regional manager named Paul Kasprzycki, also made unwelcome sexual advances and inappropriate comments toward Hocevar on several occasions.
- In October 1995, Hocevar complained internally to a Purdue manager about Amundsen's conduct. On December 20, 1995, her attorney formally notified Purdue of her intent to file a harassment complaint.
- Following an auto accident, Hocevar was on disability leave. On May 2, 1996, while still on leave, she filed a formal charge of sexual harassment with the EEOC.
- Purdue terminated Hocevar's employment on June 7, 1996, stating it was necessary to restaff her vacant sales territory.
Procedural Posture:
- Marcia Hocevar filed a lawsuit against her former employer, Purdue Frederick Company, in the United States District Court for the District of Minnesota.
- Her complaint alleged hostile work environment sexual harassment and retaliatory discharge in violation of Title VII of the Civil Rights Act of 1964.
- The district court (trial court) granted summary judgment in favor of Purdue on both the hostile work environment and retaliation claims, dismissing the case without a trial.
- Hocevar appealed the district court's grant of summary judgment to the United States Court of Appeals for the Eighth Circuit.
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Issue:
1. Does an employee create a genuine issue of material fact for a hostile work environment claim when the alleged harassment consists of pervasive vulgar language that was not always directed at her and in which she sometimes participated? 2. Does an employee create a genuine issue of material fact for a retaliatory discharge claim when her termination occurs shortly after she files an EEOC complaint and follows a pattern of negative actions by her supervisor?
Opinions:
Majority (on hostile work environment claim) - Beam
No. Hocevar failed to establish a prima facie case for a hostile work environment because she did not demonstrate that the alleged harassment was unwelcome, was based on sex, or was sufficiently severe or pervasive. The court reasoned the conduct was not 'unwelcome' because Hocevar admitted to using similar foul language herself. It was not 'based on sex' because offensive terms were used to describe both men and women. The remaining incidents of harassment were too isolated and infrequent to alter the terms and conditions of employment, as Title VII is not a 'general civility code.'
Majority (on retaliation claim) - Lay
Yes. Hocevar demonstrated sufficient evidence of pretext to survive summary judgment on her retaliation claim. The court found that several factors could lead a jury to infer that retaliation was the true reason for her discharge: the close proximity in time between her EEOC filing and termination, her supervisor's return from a suspension she caused, and a documented history of her supervisor targeting her with negative employment actions despite her strong sales performance. Purdue's proffered reason for termination—the need to restaff her position—could be viewed by a reasonable jury as a mask for the true retaliatory motive.
Dissenting (on hostile work environment claim) - Lay
Yes. A reasonable jury could find the workplace was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to create an abusive environment. The dissent argues that the majority improperly weighed evidence by dismissing the claim because Hocevar occasionally used foul language; this is a credibility determination for a jury. Furthermore, the constant use of gender-specific pejoratives like 'bitch' directed at women provides a clear causal nexus to sex, and harassment does not need to be personally directed at the plaintiff to create a hostile environment for her.
Dissenting (on retaliation claim) - Beam
No. While Hocevar established a prima facie case, Purdue advanced a legitimate, non-discriminatory reason for her termination: the need to re-staff a sales territory left vacant for over seven months. Hocevar failed to produce sufficient evidence to show this legitimate reason was merely a pretext for unlawful retaliation. The other employee she cited as being treated differently was not similarly situated because that employee was not absent from work.
Concurring (on hostile work environment claim) - John R. Gibson
No. While disagreeing with Judge Beam's fact-finding and semantic analysis, the concurrence agrees with the result. The claim fails because the most severe conduct was not directed at Hocevar, but at a third-party non-employee. Critically, Hocevar's admission that she engaged in the same type of offensive language she complained of fatally undermines her ability to prove the conduct was subjectively offensive and unwelcome, a necessary element of a hostile work environment claim.
Analysis:
This fractured decision illustrates the distinct evidentiary thresholds for hostile work environment and retaliation claims at the summary judgment stage. It establishes that close temporal proximity between a protected activity and an adverse action, combined with a history of antagonism, creates a strong inference of pretext for a retaliation claim. Conversely, it highlights the difficulty of surviving summary judgment on a hostile work environment claim where the plaintiff has participated in the workplace's coarse culture, as this can defeat the 'unwelcome' and subjective offense elements of the claim. The case demonstrates judicial division on whether gender-based epithets like 'bitch' are inherently discriminatory when used in a workplace where vulgarity is common.
