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Alvarez v. Des Moines Bolt Supply

November 17, 2010


Appeal from the United States District Court for the Southern District of Iowa.

The opinion of the court was delivered by: Colloton, Circuit Judge

Submitted: December 17, 2009

Before BYE, BEAM, and COLLOTON, Circuit Judges.

Veronica Alvarez asserts that while she was employed at Des Moines Bolt Supply, Inc. ("DMB"), she was subjected to sexual harassment from co-workers, and that the company retaliated against her when she complained about the harassment. Alvarez filed suit under Title VII and the Iowa Civil Rights Act, alleging retaliation and sex discrimination based on a hostile environment. The district court*fn1 granted summary judgment for DMB, and Alvarez appeals. We affirm.


As we are reviewing a grant of summary judgment, we describe the facts in the light most favorable to Alvarez. Alvarez was employed in the kit department of DMB's Des Moines plant, sorting nuts and bolts, from February 19, 2001, until her resignation on May 2, 2006. Beginning in September 2005, Alvarez recorded in a journal incidents of offensive conduct directed at her by non-supervisory co-workers at DMB. Her journal documented several episodes of inappropriate conduct, including occurrences involving co-worker Brad Nurnberg. Nurnberg made sexually explicit comments to Alvarez and touched her inappropriately.

Alvarez complained to DMB employees about inappropriate conduct by her co-workers on several occasions. First, at a time not specified in the record, Alvarez complained to Sharon Miller, a receptionist with human resources responsibilities, that a co-worker commented on her breasts. Miller did not recall whether she took any action in response to Alvarez's complaint.

Around November 2005, Alvarez complained to her supervisor, Jay Owens, that Nurnberg had made sexual comments to her. In response, Owens warned Nurnberg not to say anything "sexually inappropriate." Owens also claims that he reported this complaint to Dave Norem, the warehouse manager, but Norem did not recall the complaint, and stated that if he did hear the complaint, he probably did not take any action.

Alvarez later complained to Owens again that Nurnberg made inappropriate comments of a sexual nature. Owens testified that he took the same steps in response to the second complaint and talked to Nurnberg again. Nurnberg recalled Owens warning him only once.

On January 10, 2006, Alvarez complained to Owens for the first time about physical activity by Nurnberg. Alvarez told Owens that Nurnberg had "slapped her on the butt." Owens asserted that in response to this complaint, he talked to Nurnberg, and that Nurnberg denied slapping Alvarez. Owens also said that he talked to other employees about the complaint, and that one employee, Brandin Bales, said that he saw Nurnberg slap Alvarez. Owens made "a file up" and let upper management decide what to do with Nurnberg.

Nurnberg continued with similar conduct, and on January 20, 2006, Alvarez complained to her new supervisor, Clint Jubell. Alvarez told Jubell that Nurnberg was slapping her buttocks, that he called both her and her husband a "dumb ass," and that he brushed up against her and said "[o]h, Veronica, I'm going to tell that you touched my balls." Jubell asked Alvarez to put her complaint in writing.

Alvarez's written complaint contained similar allegations against Nurnberg. Alvarez stated that Nurnberg "smacks" her butt a lot, whispered sexual slurs in her ear, and called her and her husband a "dumb ass." One alleged slur was a statement by Nurnberg that "[t]o [sic] bad you have [a] 5lb [r]estriction cause I [n]eed your help to hold my 12lb penis in the [b]athroom." She also alleged that Nurnberg made sexual advances toward her, commented on her breasts, handed out a joke flyer that someone found offensive, and stood over her so that when she turned around her shoulder would rub against his penis.

DMB began to investigate Alvarez's allegations. Jubell says that within one business day of Alvarez's complaint, he met with Nurnberg and explained what Alvarez had alleged in her complaint. Nurnberg admitted making "off-colored jokes," but denied the allegations against him. In the course of his investigation, Jubell contacted Michael Thompson, the operations manager for DMB, and Thompson decided to take over the investigation. Thompson interviewed employees who worked with Alvarez in the kit department and other employees who were in the area.

DMB collected written statements from several DMB employees. Brandin Bales reported that he saw Nurnberg slap Alvarez "in the rear." Another kit department employee, Jamer Lickteig, wrote that he had overheard "dirty" jokes between the two, but at the same time said that he had not heard or seen anything "inappropriate." Damon Robinson, a DMB employee, wrote that he had seen Alvarez and Nurnberg engage in inappropriate actions toward each other, including dirty joke-telling and "smacking" of buttocks over a period of twelve to eighteen months. Kenny Sledge, who performed information technology work in the office at DMB, observed, "I have known [Nurnberg and Alvarez] to make off-color jokes towards each other and have never noticed any kind of discomfort between the two of them."

Nurnberg also contributed a statement, dated January 30, 2006, alleging that he and Alvarez had made "random sexual coments [sic] and gestures" to each other for two years prior to the complaint. He stated that the buttocks slapping was started by Alvarez and another employee as a game, and that it was introduced to him by Alvarez. Nurnberg also asserted that Alvarez often told him about her sex life, and that he was surprised about the harassment complaint, because Alvarez recently had been asking him if she could ride along with him to lunch.

After collecting witness statements, Thompson prepared a report of the investigation. Thompson's report summarized the allegations of Alvarez and Nurnberg, and some of the oral and written witness statements. The report concluded:

Based on the statements of both Mr. Numberg [sic], and Mrs. Alvarez, and taking into account the statements of other employees, it is credible; that both employees engaged in behavior and conduct that is strictly and specifically prohibited by DMB supply company policy. Specifically; "Verbal and physical conduct of a sexual nature[.]" Based on the statements of other employees as well as Mr. Numberg's [sic] own admission, it appears that this behavior was ongoing for some time.

Company policy states that any violation will be dealt with by corrective action up to and including termination of employment.

Thompson forwarded his finished report to Gary Beane, the treasurer of DMB, and Wayne Simmer, DMB's president and one of its owners.

Thompson met with Simmer and Beane to discuss how DMB should respond to the report. Simmer suggested that both Alvarez and Nurnberg be terminated, but Thompson "didn't feel that a first-time violation where both people had been engaging in the practice deserved termination for either one of them." The company's final decision was to suspend both employees without pay for five days beginning on January 31, 2006. ...

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