Marcia A. Hocevar v. Purdue Frederick Company Timothy Amundsen

216 F.3d 745, 2000 U.S. App. LEXIS 14417, 83 Fair Empl. Prac. Cas. (BNA) 97, 2000 WL 798101

• Court: Court of Appeals for the Eighth Circuit
• Decided: June 22, 2000
• Docket: 98-4075
• Status: Published

Opinions

BEAM, Circuit Judge,

with whom Judge JOHN R. GIBSON joins in the result reached in Part IIA.

Marcia Hocevar appeals the district court’s¹ grant of summary judgment in favor of Purdue Frederick Company (Purdue) and Timothy Amundsen, resulting in the dismissal of her Title VII claims of hostile work environment and retaliation.² The district court found that Hocevar had not established a prima facie case of hostile work environment and that she had not demonstrated a retaliation claim.

I. BACKGROUND

I relate the relevant facts in the light most favorable to Hocevar.³ Hocevar worked as a sales representative for Purdue. During Hocevar’s employment, her supervisor, Timothy Amundsen, constantly used the words “bitch,” “fuck,” and “asshole,” and sometimes used combinations of these words. Aside from her claims of constant offensive language, Hocevar also asserts four specific instances of inappropriate conduct by Amundsen. First, Amundsen called a female client who treated him rudely a “fat fucking bitch.” Second, Amundsen called a new male employee a “fucking new guy” throughout a business meeting. Third, at a business meeting, Amundsen played a tape of the Jerky Boys, a set of crude, so-called comedians whose routine often includes offensive language. Fourth, Amundsen said that Purdue’s clients would “cream their jeans” when they found out about a new product that Purdue had developed.

Hocevar cited four other incidents of sexual harassment involving other company officials. First, in the spring of 1992, while having drinks, several company employees engaged in a heated argument about Susan Faludi’s book Backlash. During that argument, a company official expressed negative feelings about the feminist movement and another company official called Hocevar a “bitch.”⁴ Second, in January of 1993, another company official made sexual advances toward her and pulled her close to have full-body contact during a dance at a company gathering. Third, at a company meeting in the spring of 1993, two other company officials talked during a presentation that Hocevar was giving. At the end of the presentation, Hocevar confronted them about their rude behavior and one of the men told her that they had been talking about “what great legs” Hocevar' had. Fourth, in April of 1995, after a skit performed by three female employees at a company gathering, a company official⁵ suggested to the room of 150 people that he would be having a sexual liaison with the three women later that evening. During this same gathering, the company official also made a comment that suggested a female employee had a sexual device in her hand.

In August of 1995, Hocevar was injured in a car accident in which she received injuries that kept her off work for several weeks. On September 18, 1995, Hocevar returned to work. However, she was only able to work for a little more than a month before having to take another absence because of continuing pain from injuries sustained in the accident. On December 15, 1995, Purdue sent a letter to Hocevar in which the company expressed concern about her continued absence. Five days later, Hocevar’s attorney responded with a letter that outlined Hocevar’s complaints about Amundsen’s conduct. On May 2, 1996, Hocevar filed a complaint with the EEOC. About a month after the complaint was filed, Purdue terminated Hocevar.

II. DISCUSSION

A. Hostile Work Environment

To succeed on a claim of hostile work environment created by her supervisor, Hocevar has to prove the elements of such a case. These elements are: (1) that she is a member of a protected group; (2) that she was subject to unwelcome sexual harassment; (3) that the harassment was based on sex; and (4) that the harassment affected a term, condition, or privilege of employment. See Phillips v. Taco Bell Corp., 156 F.3d 884, 888 (8th Cir.1998). Purdue has an affirmative defense to liability or damages when no tangible employment action is taken if: (a) Purdue exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (b) Hocevar unreasonably failed to take advantage of any preventive or corrective opportunities provided by Purdue or to avoid harm otherwise. See Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Hocevar is a member of a protected group. However, Hocevar has failed to establish that the alleged behavior was unwelcome, the 'discrimination was based on sex, or that the harassment affected a term, condition, or privilege of employment.⁶

Hocevar has not demonstrated that Amundsen’s use of offensive language was unwelcome. A plaintiff must indicate by her conduct that the alleged harassment was unwelcome. See Quick v. Donaldson Co., 90 F.3d 1372, 1378 (8th Cir.1996). A plaintiff cannot create a genuine issue of material fact with regard to unwelcome behavior when she engages in the conduct complained about. See Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 966 (8th Cir.1999). Hocevar’s own testimony indicates that Amundsen’s use of offensive language was not unwelcome because she used the offensive language herself. Hocevar admitted that she also called the new co-worker the “fucking new guy” at the business meeting. She further admitted that she used the words “bitch” and “fuck” around both Amundsen and other Purdue employees. I find that these actions on the part of Hocevar vitiate her contention that the mere use of these words was unwelcome.

Hocevar also failed to establish that the discrimination was based on sex. Harassing conduct constitutes discrimination based on sex when members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed. See Montandon v. Farmland Indus. Inc., 116 F.3d 355, 358 (8th Cir.1997). Hocevar failed to demonstrate that the language complained about was based on sex. Offensive language was used to describe both men and women. While Amundsen described a female client who had treated him rudely as a “fat fucking bitch,” he also referred to a new male employee as a “fucking new guy.” Offensive language was used in front of both men and women at company meetings and the Jerky Boys tapes were played in front of both men and women. The use of foul language in front of both men and women is not discrimination based on sex. See id. at 358; see also Scusa, 181 F.3d at 965.

Hocevar claims that Amundsen’s use of the term “bitch” itself shows a discriminatory attitude toward females. Gender-based insults may create an inference that discrimination was based on sex. See Carter v. Chrysler Corp., 173 F.3d 693, 700 (8th Cir.1999). However, mere use of the word “bitch,” without other evidence of sex discrimination, is not particularly probative of a general misogynist attitude. See Kriss v. Sprint Communications Co., 58 F.3d 1276, 1281 (8th Cir.1995).

In this case, Hocevar has presented no additional evidence demonstrating that Amundsen’s use of the word “bitch” connotes a misogynist attitude. This is not a case where Amundsen used the term bitch as a synonym for female-specific characteristics of which he did not approve. See id. at 1281 (noting that evidence where supervisor used word “bitch” as synonym for “complain” would provide stronger evidence of sex harassment because that would demonstrate that supervisor associated complaining with females). Neither is this a case where Amundsen blamed Hocevar’s sexuality for his use of the word “bitch.” Carter, 173 F.3d at 701 (holding that use of sexual epithets is evidence of sexual harassment when co-employee claims he used sexual epithets because plaintiff dressed provocatively and put “her ass up in our faces”). Nor is this a case in which Amundsen engaged in a litany of obscene name calling against Hocevar. See Burns v. McGregor Elec. Indus. Inc., 989 F.2d 959, 964 (8th Cir.1993) (finding discrimination based on sex when male co-worker called female plaintiff a “bitch,” “asshole,” “slut,” and “cunt”). Because Hocevar has failed to present any additional evidence to bolster her contention that Amundsen’s pervasive use of the term “bitch” shows his misogynist attitude, I find that Hocevar cannot demonstrate the harassment was based on sex.

Finally, Hocevar cannot show that the harassment was sufficiently severe or pervasive so as to alter a term, condition, or privilege of employment. See Taco Bell, 156 F.3d at 888. “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII’s purview.” Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). Factors to consider when determining whether sexual harassment is sufficiently severe or pervasive include: “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris v. Forklift Sys. Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). More than a few isolated instances are required. See Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 573 (8th Cir.1997). While the use of foul language may have been pervasive, I have already concluded that it was neither unwelcome nor based on sex.

This leaves Hocevar with four events that might constitute unwelcome behavior based on sex: (1) the Backlash incident; (2) the “great legs” incident; (3) the dancing incident; and (4) the skit incident. I will assume that all of these incidents could constitute unwelcome behavior based on sex. However, these incidents were clearly not pervasive because they occurred over at least a three-year period. In addition, a few inappropriate comments and an unwanted slow dance do not amount to particularly severe conduct that was threatening or humiliating.

I have little doubt that Amundsen’s behavior was boorish and unprofessional. But, Title VII is not a general civility code. See Faragher, 524 U.S. at , 118 S.Ct. 2275. The simple fact is that the cases on which Hocevar relies involved far, far more evidence than Hoce-var has presented. See Rorie v. United Parcel Serv., 151 F.3d 757 (8th Cir.1998) (reversing summary judgment against plaintiff where supervisor patted female employee on back, brushed up against her, told her she “smelled good,” always “came-on” to her, and asked her about co-worker’s penis size); Howard v. Burns Bros. Inc., 149 F.3d 835 (8th Cir.1998) (affirming jury verdict where co-employee always used sexual innuendos, told plaintiff she had nice legs, brushed her buttocks, told jokes involving lewd gestures, and touched the buttocks of and talked “nasty” to other female employees); Hall v. Gus Constr. Co., 842 F.2d 1010 (8th Cir.1988) (upholding judgment when plaintiffs’ male coworkers made repeated requests for sex and touched plaintiffs’ breasts and thighs). While I sympathize with Hocevar’s having to endure Amundsen’s conduct, her assertions fall far short of proof of a hostile work environment.

B. Retaliation

To establish a prima facie retaliation case, Hocevar must prove that: (1) she engaged in protected activity; (2) Purdue took adverse action against her; and (3) there is a causal connection between the two. See Scott v. County of Ramsey, 180 F.3d 913, 917 (8th Cir.1999). If Hocevar establishes a prima facie case, a presumption of retaliation arises, and the burden then falls on Purdue to advance a legitimate reason for the adverse employment action. See id. If Purdue advances a legitimate reason, the presumption drops out and Hocevar has the burden of demonstrating intentional retaliation. See id. If there is no direct proof of retaliation, as here, a claimant may, under some circumstances, advance indirect proof by evidence that the so-called legitimate reason is merely a pretext for unlawful retaliatory conduct. See id. I find that Hocevar established a prima facie case of retaliation. However, I also find that Purdue advanced a legitimate reason for Hocevar’s termination and that Hocevar presented no evidence of pretext.

Hocevar engaged in protected activity when she lodged a complaint with the EEOC on May 2, 1996. Purdue then took an adverse employment action against Hocevar by terminating her on June 7, 1996.⁷ Finally, she established an inference of a causal connection because her termination closely followed the filing of her EEOC complaint and also closely followed Amundsen’s return from a three-month suspension received, in part, because of Hocevar’s complaints to Purdue officials. See Smith v. Riceland Foods, Inc., 151 F.3d 813, 819-20 (8th Cir.1998) (causal connection established by circumstantial evidence, including close proximity of time between plaintiffs engagement in protected activity and the adverse employment action).

However, Purdue presented a legitimate reason for Hocevar’s termination. In its termination letter, Purdue expressly noted that Hocevar was dismissed because of the need to re-staff her territory due to her lengthy absence. Hocevar does not dispute her absence from work for more than seven months, and I have little doubt that Purdue has a legitimate need to have its sales territories covered. Thus, I find it was legitimate for Purdue to terminate Hocevar in order to re-staff her vacant sales territory.

Hocevar argues that the legitimate reason advanced by Purdue is a pretext for retaliation because: (1) Purdue failed to re-staff another important sales territory for three months and (2) a similarly situated employee who did not complain to the EEOC was not terminated by Purdue. As an initial matter, it does not appear that Hocevar made these arguments to the district court. See Womack v. City of Bellefontaine Neighbors, 193 F.3d 1028, 1032 (8th Cir.1999) (declining to address arguments first advanced on appeal). However, even assuming that these arguments were advanced below, she has not provided evidence of pretext.

The fact that Purdue left another territory unstaffed for three months does not amount to pretext. Perhaps if Purdue had terminated Hocevar after three months, this would be somewhat persuasive. However, Hocevar’s territory was left unstaffed for seven months — more than double the amount of time that Hocevar claims another territory was left unstaffed. Because of the significant difference in the amount of time that Hocevar’s territory remained un-staffed, Purdue’s failure to re-staff another territory for three months provides no evidence of pretext.

Hocevar’s contention about an allegedly similarly situated employee also fails. Hocevar presented evidence that Purdue did not terminate another sales representative who also expressed concern about Amundsen’s conduct but who did not file an EEOC complaint. Where the only evidence of pretext is disparate treatment when compared to another employee, a plaintiff must show that the other employee was similarly situated in all relevant aspects. See Scott, 180 F.3d at 917. In this case, the other sales representative and Hocevar were not similarly situated in all relevant aspects because the other sales representative was never absent from work. Thus, Purdue’s retention of the other sales representative provides no support for Hocevar’s allegations of pretext.

III. CONCLUSION

For the foregoing reasons, Judges Beam and Gibson affirm the district court’s dismissal of the hostile work environment claim; Judge Beam would also affirm the district court’s decision on the retaliation claim.

LAY, Circuit Judge,

with whom Judge JOHN R. GIBSON joins in Part IIA.

This is an appeal brought by Marcia Hocevar (Hocevar) from the district court’s grant of summary judgment in favor of Purdue Frederick Company (Purdue), her former employer, in a sexual harassment and retaliation claim brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The district court found that the plaintiff was a member of a protected class (a female) but that she failed as a matter of law to demonstrate a genuine dispute of material fact on both of her claims. In addition to denying her claim of retaliation, the court found that Hocevar had not shown a hostile work environment because it concluded that the alleged harassment was neither pervasive nor severe. For the reasons stated below, the majority of the court (Judges Beam and Gibson) affirm the grant of summary judgment on the hostile work environment claim; a different majority of the court (Judges Lay and Gibson) reverse and remand for trial on Hoce-var’s retaliation claim.

The record shows that Marcia Hocevar began working at Purdue in August 1988 as a pharmaceutical sales representative. While working for Purdue in Minnesota between 1988 and 1992, Hocevar consistently out performed her then co-worker Timothy Amundsen (Amundsen) and was often ranked in the top sales percentile nationally. Hocevar was promoted three times in five years, the final promotion being to the position of sales training manager at corporate headquarters in Norwich, Connecticut. Hocevar’s bonuses reflect her good sales record, and her performance was rated at the highest possible level.

In June 1994, Hocevar transferred to Minnesota due to her impending marriage where she was placed under the supervision of Amundsen, the new district manager, and took over the sales territory previously assigned to him.⁸ Despite Hocevar’s history of top-notch performance evaluations, Amundsen rated Hocevar at the lowest possible level in October and November 1994. Amundsen gave Hocevar an additional adverse rating in February 1995.

In March 1995, Amundsen accused Hocevar of lying and making false sales reports. A company investigation concluded no wrongdoing on Hocevar’s part. Shortly thereafter, in July 1995, Amundsen again gave Hocevar the lowest possible performance rating despite the fact that she demonstrated a sales growth of seven percent. At some point, Purdue took away a portion of Hocevar’s sales territory — an area including the world renowned Mayo Clinic and LaCrosse, Wisconsin.⁹ This action was taken by Amundsen despite the fact that Hocevar exceeded Amundsen’s oim prior sales record in the same territory and received bonuses for exceeding sales quota. These areas remained un-staffed for three months following removal from Hocevar’s territory.

On August 11, 1995, Amundsen recommended Hocevar for probation based on her past year’s performance. ' Following an automobile accident, Hocevar took disability leave from August 16, 1995, until September 15, 1995. Despite her absence, Hocevar again met her sales quota and earned a bonus. Hocevar took additional disability leave on October 21, 1995, and requested a part-time work schedule accommodation. Amundsen denied her request. As a result, Hocevar was unable to return to full-time work and remained on disability leave until her termination on June 7,1996.

Following Hocevar’s return to Minnesota in 1994, Amundsen engaged in hostile behavior in the workplace over a two-year period: he distributed sexually explicit material at business meetings; he made threats of violence towards female staff members; he constantly referred to women as “bitches,” “fucking bitches,” and “fat fucking bitches,” ¹⁰ he told stories of animal violence (e.g., placing a loaded gun in the mouth of a dog that wandered into his yard); he told jokes at meetings that were derogatory towards women and contained profanity; he introduced a new employee as the “fucking new guy;” and claimed that new pharmaceutical products were so exciting a physician would be “creaming his jeans” to get them. Hocevar also testified that Amundsen exhausted a portion of a staff meeting by playing an audiotape of the .Jerky Boys which contained obscene, vulgar, and sexually explicit “prank” phone calls to businesses on topics such as genital warts.

Hocevar also testified that in April 1992, Purdue Regional Manager Paul Ka-sprzycki (Kasprzycki) had made sexual advances toward her at a bi-regional meeting in Denver, Colorado. She testified that she was afraid to report complaints to Kasprzycki (Amundsen’s supervisor) due to incidents of Kasprzycki making unwelcome sexual advances towards her, including pulling her toward him resulting in “full body contact” during what began as a consensual “fast” dance that led into a “slow” dance. She testified that Ka-sprzycki made “very clear his wish to have a sexual relationship” with her and made suggestive comments about being available for a sexual relationship. Hocevar testified that Kasprzycld’s advances were even more explicit when no witnesses were around. According to Hocevar, this was not an isolated incident, as Kasprzycki had previously made “unwelcome and uninvited” sexual advances toward her following a Purdue national meeting in New Orleans in January 1992. Then, in front of nearly 150 people Kasprzycki made statements at a bi-regional meeting in April 1995 implying a female manager had a sexual device in her hand and, in a separate incident, that he would be engaging in a sexual liaison in his hotel room later that day with three female sales representatives that had just performed a singing skit. Additionally, she describes an incident at a national meeting in Texas in 1993 involving two other Purdue District Managers, Dan Mackavoy and Dick Silverman. Hocevar stated that the district managers talked throughout her presentation; afterwards, she approached them about their “rude” behavior, to which Mackavoy responded: “We were talking about what great legs you have.”

In yet another incident, also following a Purdue bi-regional meeting, Hocevar and six male and female co-workers were discussing Susan Faludi’s book Backlash: The Undeclared War Against American Women (discussing public reaction to successful working women). During this conversation, a male employee called Hocevar a “bitch” and the then new district manager, Kelly Bartlett, became “very angry” and “exploded” stating: “You women, since when are women always right and men are always wrong? If your women’s movement had its way, every woman would be working and our children would be being raised in communes.” The incident was so upsetting that Kathy Kiekhae-fer (Kiekhaefer) and a co-worker were crying and were “scared” and concerned at the prospect of working for a manager with such a feeling of hostility toward working women.

In October 1995, Hocevar complained to Dennis Merlo, a Purdue managerial employee, about Amundsen’s inappropriate behavior, foul language, and stories of animal violence. On December 20, 1995, Hocevar’s attorney notified Purdue of her intention to file a complaint against Purdue with the Minnesota Department of Human Rights alleging sexual harassment. The letter also voiced concerns about the “ongoing sexual harassment” of Hocevar and other women at Purdue. In January 1996, another female employee, Kiekhae-fer, filed a claim of sexual harassment with Purdue, which prompted Purdue to investigate the complaints.

Danielle Nelson (Nelson), Purdue’s Vice President of Equal Employment Opportunity Compliance and Human Resources Administration, conducted an investigation into the complaints of sexual harassment. Nelson found that Amundsen’s extensive use of profanity and off-color jokes violated company policy and was “unprofessional behavior.” Nelson concluded, however, that no sexual harassment occurred. Despite Nelson’s determination that no sexual harassment occurred, Purdue directed Amundsen — under threat of termination— to take a three month unpaid leave of absence during which he would receive counseling and management training. Thereafter, Nelson and James Lang (Lang), Purdue’s National Sales Manager, traveled to Amundsen’s district, informed the employees that Amundsen’s language was inappropriate and unacceptable, and trained employees on Purdue sexual harassment complaint procedures. After the Nelson/Lang visit, Hocevar’s co-worker Mary Beck-Johnson testified that workplace conduct “absolutely changed” — “personal” matters were no longer discussed and inappropriate language was no longer used at meetings.

In mid-April 1996, Amundsen returned from the unpaid leave of absence. On May 2, 1996, Hocevar filed a charge of sexual harassment with the Equal Employment Opportunity Commission (EEOC) and Purdue terminated her a little over a month later by letter dated June 7, 1996. Hocevar thereafter filed her claim alleging retaliatory discharge on July 10, 1996. Hocevar now appeals the district court’s grant of summary judgment in favor of Purdue.

A. Retaliation

The district court found that Hocevar made a prima facie case of retaliation following her claim of sexual harassment with the EEOC. It found that (1) Hocevar had engaged in a statutorily protected activity;¹¹ (2) an adverse employment action occurred; and (3) the adverse employment action was casually linked to the protected activity.¹² Nonetheless, the district court found that Purdue articulated a nondiscriminatory reason for termination, namely, the company’s need to restaff her vacant position.¹³ The district court furthermore found that Hocevar had not shown evidence that Purdue’s reason was pretextual.

Based on our de novo review of the record, we reverse the grant of summary judgment on Hocevar’s retaliation claim. The overall record establishes the plaintiff has demonstrated sufficient evidence, if believed, that the reason given for her discharge simply masked the true reason for the discharge — retaliation for filing an EEOC charge. See Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978).¹⁴ The record demonstrates several factors from which a trier of fact might infer that retaliation was the true reason for her discharge:

(1) the close proximity in time between Hocevar’s discharge and Amundsen’s return to work after his three-month suspension without pay for sexual harassment as reported by Hocevar and others;

(2) the close proximity of Hocevar’s filing the EEOC claim of sexual harassment and her discharge;

(3) that long prior to the company’s reason for Hocevar’s discharge, the Mayo Clinic account was taken away from the plaintiff and that account was unserviced for over three months thus depriving Hocevar of substantial sales commission;

(4) that Hocevar was targeted by Amundsen and KasprzycM for preprobation in July 1995;

(5) that defendant had earlier refused to accommodate plaintiffs work restriction following a car accident, when defendant’s own employment expert testified that such accommodation could have occurred;

(6) that Amundsen had required Hoce-var to call him every day with a special report about her sales calls; no other employee was required to do so;

(7) that Kathy Kiekhaefer testified that employees who complained about their manager “eventually were gone from the organization altogether.”

Hoeevar’s allegations, if proven true, evidence a long history of unfavorable actions by Amundsen against her virtually from the moment she was placed under his supervision. During the period in which Amundsen gave her the lowest possible performance ratings and placed her on probation, Hocevar consistently exceeded Purdue sales quotas and received bonuses. Hocevar’s sales performance exceeded quota notwithstanding the fact that Amundsen removed a lucrative portion of her sales territory and despite the offensive work environment and heightened scrutiny by Amundsen. After Hocevar notified Purdue of Amundsen’s offensive behavior, Amundsen was forced to take an unpaid leave of absence. Less than a month after his return, Hocevar filed a sexual harassment claim and shortly thereafter was terminated.

Giving Hocevar the benefit of all favorable inferences on summary judgment, we hold there exists sufficient inference that the company’s sudden need to restaff the Mayo Clinic territory was indeed questionable and that Hocevar’s filing of her complaint with the EEOC was the motivating act that caused Amundsen to discharge her.

It is not for this court, nor for the district court, to weigh the evidence and decide whether Purdue’s proffered reason was true. As long as there exists conflicting evidence upon which reasonable men and women might differ, we find sufficient evidence of pretext to survive the motion of summary judgment. Under the circumstances, we find the district court erred in granting summary judgment on Hocevar’s retaliation claim. We, therefore, reverse the grant of summary judgment on Hoce-var’s claim of retaliation for the exercise of protected activity.

1 . The Honorable Paul A. Magnuson, United States District Judge for the District of Minnesota.

2 . Hocevar also brought claims of quid pro quo harassment in violation of Title VII, and state law claims of intentional infliction of emotional distress, breach of contract, and wrongful discharge. The district court dismissed Amundsen as a party. The district court also dismissed the quid pro quo claim on summary judgment. After dismissal of the Title VII claims, the district court declined to exercise supplemental jurisdiction over the state law claims. At oral argument, Hocevar’s counsel seemed to imply that Hocevar did not wish to pursue an appeal of the dismissal of her quid pro quo claim. Regardless, we affirm the district court’s well-reasoned opinion with regard to the dismissal of the quid pro quo allegation. Hocevar does not appeal the dismissal of Amundsen as a party or the district court's decision to not exercise supplemental jurisdiction over the state law claims.

3 . We review the district court's grant of summary judgment de novo, and will affirm if the evidence, viewed in the light most favorable to Hocevar, shows that there is no genuine issue of material fact and that Purdue is entitled to judgment as a matter of law. See Austin v. Minnesota Mining and Mfg. Co., 193 F.3d 992, 994 (8th Cir.1999) (standard of review).

4 . The company official who called Hocevar a "bitch” later called to apologize for his comment.

5 . This was the same company official who danced with Hocevar two years earlier.

6 . Because Hocevar has failed to prove the elements of her claim, we need not decide the availability of or extent of an affirmative defense.

7 . Hocevar received poor performance evaluations in late-1994 and early-1995, and she had two major, accounts removed from her sales territory in June of 1995. However, these are not adverse employment actions for the purpose of her retaliation claim because these events occurred well before Hocevar filed her complaint with the EEOC, the event which, according to Hocevar, triggered the retaliatory conduct. I also note that these events lend no aid to Hocevar’s hostile work environment claim.

8 . The district court dismissed the action against Amundsen. There is no appeal from that order of dismissal.

9 . The timing of the reduction in Hocevar's sales territory is not clear from the record. Hocevar's affidavit indicates the reduction occurred in the summer of 1995. Hocevar's EEOC complaint, however, indicates the event occurred on September 5, 1995. The district court found the event occurred prior to her August 16, 1995, injury and disability leave. See Dist. Ct. Mem. and Order at 13.

10 .In setting forth the facts of this case, we explicitly recite the use of foul and offensive language. Unfortunately, such a recitation is necessary to accurately depict the language used in order to provide a more precise sense of the work environment that existed at Purdue. Women in any work environment will be totally bewildered by the suggestion of Judge Beam that these terms are not sexual in content or demeaning to women.

11 . An employer may not discriminate against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a).

12 . The defendant seeks to refute that any adverse employment had taken place. Without getting into evidentiary detail, it is undisputed that Hocevar claims she lost her job for engaging in protected activity. As the district court points out, Hocevar’s discharge followed the protected activity so closely in time so as to create an inference of retaliating motive, citing Kiel v. Select Artificials, Inc., 142 F.3d 1077, 1080 (8th Cir.1998), reh’g granted and opinion vacated (Jun. 5, 1998).

13 . In its letter terminating Hocevar, Purdue advised that it would make every effort to locate a suitable territory for her when she was certified as able to return to work. Purdue suggests this precatory offer of reinstatement constitutes sufficient immunity from a claim of retaliation. Whether this offer to mitigate the harshness of discharge was sincere is a question of fact for the juty. Whatever intended, it cannot serve to provide immunity from liability if Purdue retaliated against a person who engaged in a statutory protected' right.

14 .The Supreme Court observed, "when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer's actions, it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration such as [age].” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978).