finding that over an eleven month period, supervisor’s “constant” following of employee and staring in a “very obvious fashion,” two instances of making a sniffing sound while looking at the employee’s groin area and another instance of sniffing without looking at the groin area, one incident of rubbing up against the employee’s hip while touching her shoulder and smiling, and one incident where the supervisor made the comment that he was “getting fired up too” when the employee came into his office to exclaim that she was only there to work (and not to be harassed), fell well short of conduct that would be deemed sufficiently severe or pervasive to alter conditions of employment
How later courts described this case
- finding that over an eleven month period, supervisor’s “constant” following of employee and staring in a “very obvious fashion,” two instances of making a sniffing sound while looking at the employee’s groin area and another instance of sniffing without looking at the groin area, one incident of rubbing up against the employee’s hip while touching her shoulder and smiling, and one incident where the supervisor made the comment that he was “getting fired up too” when the employee came into his office to exclaim that she was only there to work (and not to be harassed), fell well short of conduct that would be deemed sufficiently severe or pervasive to alter conditions of employment
- finding that “one instance in which Page [the alleged harasser], said to [Plaintiff] Mendoza, ‘I’m getting fired up,’ (2) one occasion in which Page rubbed his hip against Mendoza’s hip while touching her shoulder and smiling; (3) two instances in which Page made a sniffing sound while looking at Mendoza’s groin area and one instance of sniffing without looking at her groin; and (4) Page’s ‘constant’ following and staring at Mendoza in a ‘very obvious fashion’ ” were insufficient to support a hostile work environment claim
- finding that “one instance in which Page[, the alleged harasser,] said to [Plaintiff] Mendoza, ‘I’m getting fired up;’ (2) one occasion in which Page rubbed his hip against Mendoza’s hip while touching her shoulder and smiling; (3) two instances in which Page made a sniffing sound while looking at Mendoza’s groin area and one instance of sniffing without looking at her groin; and (4) Page’s ‘constant’ following and staring at Mendoza in a ‘very obvious fashion’ ” insufficient to support a hostile work environment claim
- finding that a supervisor rubbing his hip against the plaintiff “while touching her shoulder and smiling”; following the plaintiff and staring at her “in a very obvious fashion”; making sounds while staring at the plaintiff’s groin; and making a sexual comment to the plaintiff were insufficient to establish “severe or pervasive conduct sufficient to alter [the plaintiff’s] terms or conditions of employment”
Written by the judges who cited it.
The opinion
EDMONDSON, Circuit Judge,
concurring:
I concur in today’s judgment and court opinion.
I write separately on a point, which the court’s opinion does not reach, that I think deserves some attention: the essence of a Title VII case, including one based on a claim of sexual harassment, is plaintiffs proof of actual discrimination. And in this case, plaintiff never presented evidence that other employees — particularly men— at her workplace were treated considerably differently and better than she was treated. This failure of proof (apart from other reasons) warranted the district court’s grant of a judgment as a matter of law for defendant.
Plaintiff says she, at the job site, was “constantly” observed and followed by her supervisor. She says her supervisor brushed against her once at the fax machine. She also says that, after she angrily entered her supervisor’s office (where he was already meeting with another employee) and said she was there “to work, period,” the supervisor replied “Yeah, I’m getting fired up, too.” And she says, on two or three occasions, the supervisor (after looking her up and down) looked in the direction of her groin and sniffed.
Nothing in the record suggests that other employees, including men, were treated differently. When plaintiff was asked if other employees were treated the same as she was treated, she testified that she did not know. 1
Title VII was never intended to protect employees from all unpleasant and rude conduct in the workplace. 2 It is an anti- *1254 discrimination statute. Title VII provides, in pertinent part:
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin;
42 U.S.C. § 2000e-2(a) (emphasis added). “The critical issue, Title VIPs text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Oncale v. Sundowner Offshore Servs., Inc., 528 U.S. 75 , 118 S.Ct. 998, 1002 , 140 L.Ed.2d 201 (1998) (citations and internal quotations omitted). But in this case, plaintiff made no effort to show that she was treated differently and less favorably than male employees.
The conduct of which plaintiff complains is neither obviously sexual in nature nor even sex-specific. That supervisors regularly look at employees or place themselves in the same common areas of the workplace as employees can occur whether the employees are men or- women. A supervisor can bump-into men at The office occasionally. The phrase “I’m getting fired up, too” is not necessarily (and frequently is not) a sexual statement. The words can readily be explained as either a statement of anger or exasperation which could have been aimed at any'employee— man or woman — who interrupts a conference to inject some heated protest towards the supervisor. Even' the looking-and-sniffing incidents are not unambiguously sexual gestures. To sniff at something or someone is commonly understood to be a sign of contempt or disdain; a man or a woman could be the subject of that disdain and of that treatment.
My thought is not that the supervisor’s conduct in this case could not possibly have sexual connotations. I suppose that almost every act can — depending on context, tone of voice and so on.
My thought is this one: at least when the sexual content of a supervisor’s conduct is not obvious, a plaintiff asserting a claim of sexual discrimination in employment must present some evidence that plaintiffs coworkers, those not of plaintiffs sex, were treated differently and better. 3 Otherwise, Title VII’s vital element — discrimination — is read out of the statute. The plaintiffs burden to show that similarly situated employees were treated better is not a heavy one; ordinarily, the plaintiff testifies to that circumstance herself or himself. But that the burden can usually be met easily by a properly motivated plaintiff does not mean that meeting the burden is a meaningless formality or that actual evidence is unrequired. This evidence — evidence of the discrimination — is the heart of the case. And, therefore, courts must allow no fudging on the proof.
Here plaintiff put forward just two witnesses, including herself. Neither of the witnesses claimed to know whether other employees — especially men — were treated significantly differently and better than plaintiff. Discrimination based on plaintiffs sex must be proved in harassment cases. The proof of discrimination was insufficient. This failure of proof by itself *1255 warranted the district court’s grant of a judgment as a matter of law for defendant.
. This question and answer is all that we have to go on about how other people were treated:
Q: Well, you say [your supervisor] smiled at you. But, in fact, he smiled at other employees, also, didn’t he?
A: I don't know what he did with other employees.
. See, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 , 118 S.Ct. 998, 1002 , 140 L.Ed.2d 201 (1998) ("Title VII [is not] a general civility code[.]”); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 , 106 S.Ct. 2399, 2405 , 91 L.Ed.2d 49 (1986) ("[N]ot all work *1254 place .conduct that may be described as 'harassment' [is actionable.]”).,
. Sometimes harassment plaintiffs are complaining of conduct that is definitely sex-specific or very clearly sexual in nature, for example, an invitation by a supervisor to engage in sexual intercourse. In' those distinctive cases, .the discrimination might be inferred from the conduct (it is circumstantial evidence of discrimination based on sex) without further evidence: in the example, it is too unlikely that the same invitation would have been made by the same supervisor to a person of a different sex than plaintiff. But this footnote's example illustrates an exceptional case. A claim of sexual harassment is a claim of disparate treatment. The rule is that the plaintiff must, actually prove discrimination, normally by evidence showing directly that similarly situated persons not of plaintiff's sex were treated differently and better.