Jenson v. Eveleth Taconite Company Court Opinion

    1 legitimate expectation 
t the burden of a prim al*  
)le to establish a prima 
crimination. See R u sh /^

&E’s explanation does 
om establishing a prima f,' 
sufficient articulation 0f 

iscriminatory reason f0* 
An employer has a legjU 

nsuring that it’s employ^, 
y requirements and that an 
mestly with the employe 
elated issues.

3t then shift back to Bugp 
ionderance of the evidence 
)n is unworthy of credence 
md that a discriminator, 
y motivated EJ&E. See 
at 256, 101 S.Ct. at 1095 

en of persuading the trier 
intentionally discriminated 
mains at all times with 
3, 101 S.Ct. at 1093-94. 
that he would not have 

his race. Rush, 966 F.2d 
>mitted).

•' Motion [sic] in Opposi- 
nt’s Motion for Summary 
evotes 25 pages to recita- 
>resumably he would rely 
arate treatment at trial, 
rization, these instances 
failure to include Buggs 
n; 2) EJ&E’s referral of 
bilitation because of the 
y dispensed medicine in 
Jen; 3) EJ&E’s act of 
his duties and denying 
lending resolution of a 
condition and cessation 

cation; 4) denial of holi- 
uggs failed to work a 
to military service; 5) 
vear ear plugs without 
cason and in contraven- 
cty rules; 6) relieving 
denying him compensa- 

a knee brace to work 
jquiring him to wear a 
lining Buggs for being

JENSON v. EVELETH TACONITE CO,
C it e  a s  824 F.Supp. 847 (D.Mlnn. 1993)

847

., t0 an assignment though he was subse- 
■ntly reassigned and completed a full shift 

new assignment; 8) disciplining Buggs 
. Sustaining an injury while attempting to S torm his duties as a switchman; 9) reliev- 

’ Buggs of his duties and denying him 
mpensation without first conducting a fair 
,i impartial hearing to determine his re- 
.nsibility, if any, for rule violations in con­
tention of the collective bargaining agree- 
„t; and 10) terminating Buggs for dishon- 

:tv based on unfounded, alleged motives 
a destroyed his credibility, as well as for 
Slating an ambiguous provision under un­

precedented and possibly inconsequential cir­
cumstances.

Buggs does not connect any of the alleged 
•nduct to his race. Buggs does not attack 

•lie articulated legitimate nondiscnminatory 
motive as a pretext or show that it is unwor­
thy of credence. Buggs merely identifies 
, very unfavorable action taken towards him 
,lV EJ&E and in no way shows that these 
actions were taken because of his race. At 
most, Buggs disagrees with the reasons 
l-'.J&E expressed for terminating him, con­
tending that he did not give any false state­
ments, and that he was not purposefully vio­
lating the conditions of his employment be­
cause he did not intentionally refuse to wear 
his earplugs, but one had accidentally blown
away.

Even if EJ&E was mistaken, in that 
Buggs was actually wearing ear plugs and 
did not make any false statements, Buggs 
has not shown discriminatory intent. See 
Pollard v. Rea Magnet Wire Co., Ine., 824 
F.2d 557, 560 (7th Cir.), cert, denied, 484 U.S. 
977 108 S.Ct. 488, 98 L.Ed.2d 486 (1987) 
(employer’s mistake as to the reason employ­
ee was absent from work does not satisfy the 
showing of a pretext). “No matter how me­
dieval a firm’s practices, no matter how high­
handed its decisional process, no matter how 
mistaken the firm’s managers, Title VII . . .  
[does] not interfere.” Id. Unless race was a 
factor, in that Buggs would have been kept 
on if he were white, he is not entitled to 
relief. Id. at 560-561. This Court will not 
dictate managerial practices not predicated 
on the Plaintiffs race.

Although Buggs may not state a separate 
claim of retaliation in this case, evidence of

retaliation might support Buggs’ allegation of 
race discrimination. See Rush, 966 F.2d at 
1115. However, again Buggs makes no con­
nection between the protected activity or his 
race and the alleged unfavorable treatment 
by EJ&E. Viewing the facts in the light 
most favorable to Buggs, summary judgment 
is appropriate because no reasonable trier of 
fact could find that EJ&E’s reason for dis­
charging Buggs was merely pretextual and 
unworthy of credence. Id. at 1118.

CONCLUSION
For the foregoing reasons, EJ & E s Mo­

tion for Summary Judgment is GRANTED. 
There being no further claims before this 
Court, all pending motions are MOOT and 
will not be considered.

i |  KEY NUMBER SYSTIM^

Lois E. JENSON, et al., Plaintiffs, 

v.
EVELETH TACONITE COMPANY, 

et al., Defendants.

Civ. No. 5—88—163.

United States District Court,
D. Minnesota,
Third Division.

May 14, 1993.

Plaintiff class, consisting of women who 
applied for employment or were employed in 
hourly positions at taconite mining facility, 
filed employment discrimination action 
against owners and operators of facility. 
The District Court, Kyle, J., held that: CD 
plaintiffs demonstrated pattern and practice 
of discrimination relating to their claims of 
sexual discrimination in promotions to step- 
up foreman; (2) plaintiffs did not prevail on 
claims relating to sex discrimination in hir­
ing, job assignments and upgrades, compen­
sation and training; (3) plaintiffs prevailed 
on claims of sexual harassment based on



884 824 FEDERAL SUPPLEMENT

3. The Harassment was Based Upon Sex

[47] “[S]exual behavior directed at [wom­
en] raises the inference that the harassment 
is based upon her sex.” McGregor I, 955 
F.2d at 564. As discussed supra, the record 
contains sufficient instances of sexual behav­
ior directed at women, both during the class 
period and before, to warrant a finding that 
the harassment, because of its sexual nature, 
was based upon women’s sex. Moreover, 
even if some of the behavior that occurred at 
Eveleth Mines did not originate with the 
intent of offending women, it was dispropor­
tionately offensive or demeaning to women. 
See Robinson, 760 F.Supp. at 1522-23. Dr. 
Borgida’s expert testimony about sex stereo­
typing is sound evidence that the presence of 
sexual graffiti, photos, language and conduct, 
some of which may have existed at Eveleth 
Mines for years prior to women entering the 
work force, created a sexualized work envi­
ronment which detrimentally affected wom­
en. Their presence told women that the sex 
stereotypes reflected in and reinforced by

89. Eveleth Mines contends that this Court may 
not rely on the presence of sexual stereotypes or 
undirected expression of gender intolerance be­
cause to do so would create "an irreconcilable 
conflict with the First Amendment.” (Defs' 
Amended Proposed Findings of Fact and Conclu­
sions of Law. 11 37.) Eveleth Mines argues that to 
create liability under Title VII, a stereotype must 
be directed at an individual in the form of action 
that may properly be prohibited by Title VII. Id. 
However, it continues, statements which reflect 
sexual stereotypes, but which are not directed at 
any individual, may not be the basis of liability; 
Title VII may not regulate speech reflecting big­
otry without some connection to conduct.

The Court agrees that Title VII does not pro­
hibit stereotyping or any other cognitive process, 
so long as that state of mind” is not exhibited in 
behavior. However, the Court disagrees with 
Eveleth Mines’ contention that "undirected” ex­
pressions of gender intolerance may not be pro­
hibited under Title VII. In making this argu­
ment, Eveleth Mines fails to acknowledge that 
Title VII—and MHRA—is concerned with regu­
lating the work place, not society generally. As a 
result, acts of expression which may not be pro­
scribed if they occur outside of the work place 
may be prohibited if they occur at work.

Specifically, as it relates to claims of discrimi­
nation based upon the existence of a hostile 
environment, Title VII prohibits behavior that 
creates a work environment which is hostile to a 
protected group. In contrast to the larger social 
context, therefore, expression in the workplace 
that is offensive to and has a psychological im-

such behavior were part and parcel of the 
working environment at Eveleth Mines.89

4. The “Reasonable Woman” Would Find
That The Harassment Affected a Term, 
Condition, or Privilege of Employment

[48] To affect a “term, condition, or privi- 
lege” of employment of employment within 
the meaning of Title VII and MHRA, the 
harassment must be “sufficiently severe or 
pervasive to ‘alter the conditions of [the vic­
tim’s] employment and create an abusive 
working environment.’ ” Meritor, 477 U.S. 
at 67, 106 S.Ct. at 2405 (quoting Henson, 682 
F.2d at 904). This requirement may be 
shown by proof that the sexual harassment 
was sufficiently “severe or persistent ‘to af­
fect seriously [the victim’s] psychological 
well-being.’ ” Sparks v. Pilot Freight Carri­
ers, Inc., 830 F.2d 1554, 1561 (11th Cir.1987) 
(quoting Henson, 682 F.2d at 904).

stances. McGregor 
Gus Constr. Co. j 

Fir. 1988).
Under the total 
analysis the dist it 
the environment i 
incidents and th t 
curring in each < pi 
of fact must ket p 
cessive episode u 
the impact of tl e 
accumulate, anc 
ment created m i\ 
individual episoi e

McGregor I, 955 1 .2 
son v. Jacksonv ll 
F.Supp. 1486, 152< ( 
Vance v. Souther) 
F.2d 1503, 1510-1. 
omitted).

[49] Determining whether such an envi­
ronment exists must be made by the trier of 
fact in light of the totality of the circum-

pact on a member of a protected group may be 
prohibited. See Meritor, M l  U.S. at 65-66, 106 
S.Ct. at 2405 (Title VII affords employees the 
right to be free from discriminatory "intimi­
dation, ridicule and insult”); 29 C.F.R. § 1604.- 
11(a)(3) (sexual harassment includes "verbal or 
physical conduct” where such conduct "has the 
purpose of effect of . . .  creating an intimidating, 
hostile, or offensive working environment.") (em­
phasis added). In this way, Title VII may legiti­
mately proscribe conduct, including undirected 
expressions of gender intolerance, which create 
an offensive working environment. That expres­
sion is 'swept up” in this proscription does not 
violate First Amendment principles. R.A.V. v.
City o f St. Paul, —  U.S. ----- , ----- , 112 S.Ct.
2538, 2546, 120 L.Ed.2d 305 (1992).

For example, wearing a shirt on a street corner 
which says a woman’s place is on her back," 
would not subject the wearer to prosecution if 
the shirt s only characteristic is to communicate
words of "gender intolerance." Id. a t ----- , 112
S.Ct. at 2546. However, that same shirt, if worn 
at work, is an act of expression that may be 
proscribed by Title VII, even though it is directed 
only at women generally.

In the same way, graffiti which depicts a man 
with his finger inserted in a woman's rectum, 
(see Plfs Exh. No. 59), may only reflect a sex 
stereotypic view that women are essentially sex 
objects, but if it appears on the wall of a work 
place, as it did here, it may serve as a basis for a 
determination that a hostile environment exists, 
even though it is not directed at any woman.

[50] In order 1 
this fourth factor 
that (1) the reaso: t 
er the conduct si ff 
sive to alter the c 
and create an a ji 
and (2) the plai it 
individual,” that i ;, 
by the conduct u 
Robinson, 760 F 3

[51] As was li 
half of the require d 
the liability phas : 
would the “reason 
conduct sufficien 1 
alter the conditic n 
ate an abusive w< r 
of sexual harass! i 
employees is rel< v 
er the harassme it 
sufficient to alte ’ 
ment and create i 
ment in the min 1 
Cf. Hall, 842 F. :< 
claim of sexual h u

90. As detailed 1 = 
was of a sexual i a 
ment is not limit 
sexual referent; * 
towards women 
establish a clain 
Gus Constr.. Inc .