181 F. 3d 958 - Tammy Scusa v. Nestle US a Company Inc

Tammy S. Scusa appeals from a final order entered in the United States District Court1 for the District of Nebraska granting summary judgment in favor of appellee, Nestle U.S.A. Co., d/b/a Friskies Petcare Co. (Friskies or the company), and dismissing her claims for sexual harassment and retaliation allegedly committed by her non-supervisory co-workers in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Scusa v. Nestle U.S.A. Co., No. 4: 97CV3134 (D. Neb. July 7, 1998) (memorandum and order).

For reversal, appellant argues that the district court erred in granting summary judgment in favor of her employer because there were disputed issues of material fact for a jury to consider on (1) whether she was sexually harassed and (2) whether she was retaliated against for engaging in protected activity. For the reasons discussed below, we affirm the judgment of the district court.

The district court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1343. This court has jurisdiction over this appeal under 28 U.S.C. § 1291. The district court's judgment was entered on July 7, 1998, and the notice of appeal was timely filed on July 10, 1998. Fed. R. App. P. 4(a).

We need not state the facts extensively and, indeed, have little to add to the excellent memorandum opinion of the district court. Appellant has been employed at the Friskies pet food manufacturing plant in Crete, Nebraska, since 1990. At the time of the various incidents at issue, she was a sanitation/pallet washer in the meat preparation department, and, subsequently, at her request she was transferred to the packaging department in September 1996. In the spring of 1996, after a co-worker, Kathy Ramer, had complained about sexual harassment, appellant believed that other employees thought that she was the one who had made the complaint. In July 1996, appellant did file a sexual harassment charge with the state equal opportunity commission. She asserted from that point she was ostracized and isolated by other employees and first-line supervisors. She complained to the human resource manager, Jonathan "Josh" Sprowl, that a co-worker named Larry King had patted her on the bottom, had blown her kisses and had made sexual comments to her. She also complained that a co-worker and fill-in lead person, Trent Smejdir, had teased her, picked on her, thumped her on the head, and made fun of the way she dressed and ate.

Appellant also complained that on July 3, 1996, co-worker Lonnie Schoenfeld approached her, called her names and yelled at her "You need to get your f------ story straight; I didn't know anything about the f------ minerals. You girls need to leave me the hell alone." Appellant also reported that Schoenfeld made threatening gestures toward her, shaking his fist and cussing at her. Apparently these comments were made during a meeting discussing the sexual harassment complaints and the company sexual harassment policy. According to appellant, there was yelling and crying at