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McClendon v. Ikon Office Solutions


December 4, 2003


The opinion of the court was delivered by: Donovan W. Frank Judge of United States District Court



The above-entitled matter came on for hearing before the undersigned United States District Judge on November 7, 2003, pursuant to Defendant Ikon's Motion for Summary Judgment. Specifically, Ikon asks the Court to dismiss claims brought against it by Plaintiff Sheryleita McClendon for race discrimination, sexual harassment, and constructive discharge. McClendon opposes the motion with regards to the sexual harassment and constructive discharge claims. For the reasons stated below, the Court grants Ikon's Motion for Summary Judgment.


Ikon provides office equipment, services, and supplies to businesses throughout the United States. On or about April 5, 2000, McClendon, an African-American female, accepted a temporary position through TempForce, a temporary employment agency, to work as a call center representative for Ikon. On July 27, 2000, McClendon stopped working at Ikon through TempForce and became a regular employee of Ikon.

Shortly after McClendon began working at Ikon, she was approached by a co-worker at Ikon, Tiffany Listrud. In an unsolicited conversation, Listrud told McClendon that she [Listrud] was having trouble with her boyfriend because he was having affairs with a man and another woman. McClendon told Listrud not to discuss such things with her in the future. McClendon then reported the conversation to her supervisor, Nicole Schlagel ("Schlagel"). A few days after the incident, Listrud saw a picture of McClendon's teenage son and told McClendon "if he was old enough, she would have him."

At some point between May 15, 2000, and July 18, 2000, Listrud told McClendon that she [Listrud] would be sending McClendon an e-mail. McClendon asked Listrud not to send her anything that was not work-related, but Listrud did send an e-mail of a naked man parachuting with an erect penis.

On or about July 11, 2000, Listrud again approached McClendon and began to tell McClendon that she [Listrud] had met a man at a bar the night before, taken him home, and performed oral sex on him. Later that same day, Listrud provided McClendon with more details of the sexual encounter that she had the previous evening. McClendon alleges Listrud told her that she [Listrud] had performed oral sex on the man from the bar in front of others, and that if McClendon would come to Listrud's home and perform oral sex on a group of men she would receive $5. At that time, McClendon told Listrud that she would be reporting Listrud's conduct to Ikon.

On July 12, 2000, Listrud sent McClendon an e-mail that essentially told McClendon to stay out of Listrud's business. McClendon forwarded the e-mail to her supervisor and complained about Listrud's conduct. McClendon then met with Sarah Stiebner ("Stiebner"), Ikon's call center manager, to discuss McClendon's complaint regarding Listrud's conduct. Stiebner contacted Kathy Jackson ("Jackson"), an Ikon human resources representative, and TempForce began an investigation of McClendon's claims. On July 13, 2000, Schlagel and Stiebner began to interview Ikon employees regarding McClendon's claims. Although none of the employees could verify McClendon's claims specifically, some of the employees did verify that Listrud talked about sexual matters at work in an offensive manner.

On July 13, 2000, Stiebner, Schlagel, and Jackson met to discuss their findings. They decided that Listrud should be given a written disciplinary warning called a "critical incident" report. The warning was given to Listrud on July 18, 2000. At some point on the day of the meeting, McClendon called TempForce and refused to return to work at Ikon unless her cubicle was moved away from Listrud. Ikon granted McClendon's request and moved her to another part of the call center.

On July 21, 2000, TempForce and Ikon representatives met with McClendon to discuss the actions that had been taken regarding McClendon's complaint. McClendon expressed satisfaction with Ikon's resolution of the issue.

In August 2000, McClendon alleges that she was pushed by Listrud while returning from a meeting with a supervisor. McClendon asserts she reported this conduct to Stiebner, but Ikon took no action with regard to the claim. Ikon does not address the claim specifically, but does point out that on August 24, 2000, McClendon, Jackson, and Stiebner met to discuss the work environment at Ikon and, at that meeting, McClendon suggested the overall work environment had improved.

Listrud went on personal leave from August 23, 2000, until September 14, 2000. McClendon took a leave of absence from September 12, 2000, until November 6, 2000. McClendon alleges that, once she returned from her leave of absence, Listrud began "coming around Plaintiff's desk laughing and staring at Plaintiff." On December 4, 2000, McClendon complained to Mike Glass, the new Call Center Manager, that Listrud had walked by McClendon's work station 10 times in a matter of 15 minutes. McClendon alleges that Glass told her that if she did not want Listrud in her work area, McClendon should leave. McClendon left Ikon shortly after speaking with Glass, and never returned to Ikon.

Although McClendon never returned to work after December 4, 2000, she contacted Michael Haber in Ikon's Human Resources Department on December 5, 2000, to discuss Listrud's conduct. Haber investigated McClendon's claims regarding Listrud and determined that Listrud had been placed on a special assignment that required her to use maps located near McClendon's work area. No decision was ever made regarding moving the maps or reassigning Listrud because McClendon never returned to work. McClendon was placed on a leave of absence from Ikon from December 4, 2000, until she formally resigned from Ikon on April 26, 2001.


1. Standard of Review

Summary judgment is proper if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The court must view the evidence and the inference that may be reasonably drawn from the evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank of Missouri, 92 F.3d 743, 747 (8th Cir. 1996). However, as the Supreme Court has stated, "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy, and inexpensive determination of every action.'" Celotex Corp v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).

The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Enter. Bank, 92 F.3d at 747. The nonmoving party must demonstrate the existence of specific facts in the record that create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995). A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Krenik, 47 F.3d at 957.

2. Hostile Work Environment

Minnesota law recognizes that an employee has a cause of action for a hostile work environment created by sexual conduct. In order to establish a hostile work environment sexual harassment claim under the Minnesota Human Rights Act ("MHRA"), a plaintiff must show: (1) unwelcome sexual conduct that is sufficiently pervasive so as to substantially interfere with the plaintiff's employment or to create a hostile, intimidating or offensive work environment; and (2) that the employer knew or should have known of the existence of the harassment and fails to take timely and appropriate action. See Cummings v. Koehnen, 568 N.W.2d 418, 424 (Minn. 1997).

The question of whether a work environment is hostile, intimidating, or offensive is determined by an examination of all of the circumstances of a case. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Some of the factors considered by courts in analyzing this issue 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, 510 U.S. at 23.

Ikon asserts that McClendon has no viable claim for sexual harassment, because Listrud's conduct, while offensive, was neither severe nor pervasive enough to support a claim. Ikon also asserts that the remedial action it took regarding Listrud stopped the offensive conduct. Specifically, Ikon points to the undisputed fact that no conduct of a sexual nature occurred after Ikon responded to McClendon's July 12, 2000, complaint.

McClendon asserts that Listrud's conduct was offensive to her and would be offensive to any reasonable person. McClendon asserts that Listrud's comments regarding her sexual relations, the email Listrud sent McClendon of the naked man parachuting, the pushing incident, and the stalking, staring, glaring and laughing at McClendon by Listrud in November and December 2000 all established a hostile workplace. McClendon further asserts that the remedial actions taken by Ikon were not sufficient to defuse the hostile environment in the office. McClendon contends that while Listrud ceased to discuss sexual issues or present McClendon with sexual e-mails following the filing of the July 12, 2000, complaint, the pushing incident and the instances of stalking by Listrud should continue to be considered sexual in nature because they occurred in response to McClendon's complaint of Listrud's prior offensive sexual conduct.

The Court finds that the facts presented here are insufficient to support a finding that the unwelcome sexual conduct was sufficiently pervasive so as to substantially interfere with McClendon's employment or to create a hostile, intimidating, or offensive work environment. Additionally, the Court finds that even if the conduct rose to such a level, Ikon took timely and appropriate remedial actions to rectify the situation. The Court bases its conclusion on the fact that the last instance of offensive sexual conduct alleged by McClendon occurred on July 11, 2000. On that date, Listrud told McClendon about a sexual encounter she had with a man she had met at a bar. The next day, McClendon filed a complaint with Ikon about this incident and about several other incidents in which Listrud discussed sexual conduct in McClendon's presence. Listrud was subsequently reprimanded by Ikon, and the unwelcome sexual conduct ceased.

While the Court is sympathetic to McClendon's claims regarding Listrud's behavior in November and December, the Court finds that Listrud's behavior during those months was not sexual in nature. Therefore, the Court limits its consideration of Listrud's behavior to those activities occurring on or before July 11, 2000. Although the Court finds Listrud's conduct to be offensive, the Court does not believe a limited number of conversations and e-mails concerning sexual activities amounts to sexual conduct sufficiently pervasive so as to substantially interfere with McClendon's employment.

As previously stated, the Court also finds that Ikon's efforts to stop the unwelcome sexual conduct were sufficient to bar recovery by McClendon. McClendon filed a complaint on July 12, 2000, and Ikon immediately began to investigate the complaint. A week after the complaint was filed, Listrud was given a formal reprimand by Ikon. That same day, Ikon also granted McClendon's request to be moved to a different part of the call center so as to limit the interactions between McClendon and Listrud. Ten days after the complaint was filed, Ikon personnel and McClendon sat down to discuss the actions taken with regard to Listrud's conduct. Although the Court has already deemed the conduct that took place after July 11, 2000, to be of a non-sexual nature, the Court finds that Ikon's response to the complaints filed after July 11 was timely and appropriate. After the pushing incident in August, Ikon personnel again met with McClendon and moved McClendon's workstation so that she would be closer to a supervisor that might be able to monitor the situation. While McClendon's deposition testimony is not clear as to whether she complained to Ikon of Listrud's actions in November, the parties agree that a complaint was lodged with Glass on December 4, 2000. However, before Ikon had time to investigate the complaint, McClendon left Ikon.

McClendon contacted Haber the day after McClendon spoke with Glass about Listrud's conduct, but no action was taken regarding the investigation because McClendon refused to return to Ikon. While McClendon asserts that her departure from Ikon was appropriate given the response Glass allegedly made to her complaint, the Court finds that McClendon's departure from Ikon prevented Ikon from fully investigating and resolving the matter. Based on Ikon's response to McClendon's complaints, the Court finds Ikon took appropriate steps to investigate and deal with the complaints. Because the Court finds that the alleged conduct of Listrud was not sufficiently pervasive so as to substantially interfere with McClendon's employment and Ikon's response to McClendon's complaints was prompt and effective, the Court grants Ikon's Motion for Summary Judgment.

3. Constructive Discharge

Constructive discharge occurs when an "employee resigns in order to escape intolerable working conditions caused by illegal discrimination." Navarre v. South Washington County Schools, 652 N.W.2d 9, 32 (Minn. 2002) (quoting Cont'l Can Co., Inc. v. State, 297 N.W.2d 241, 251 (Minn. 1980)). In addition, the working conditions must have been created by the employer "with the intention of forcing the employee to quit." Navarre, 652 N.W.2d at 32 (quoting Pribil v. Archdiocese of St. Paul and Minneapolis, 533 N.W.2d 410, 412 (Minn. Ct. App. 1995)).

McClendon asserts that Listrud's conduct and Ikon's ineffective response to that conduct created such intolerable working conditions that McClendon had no other option but to quit her employment at Ikon. Ikon responds by contending that it responded to each of McClendon's complaints by investigating the complaints and taking the appropriate action to end the alleged harassment. The only complaint that Ikon admits that it did not investigate was the final complaint filed by McClendon on December 4, 2000. Ikon did not investigate that complaint because McClendon left before Ikon had an opportunity to do so.

The Court finds that McClendon was not constructively discharged from Ikon. As previously discussed, the Court finds that the working conditions at Ikon were not intolerable. In addition, Ikon investigated and took effective remedial actions in dealing with Listrud's conduct as it was reported by McClendon. Based on these facts, Ikon is entitled to summary judgment on McClendon's constructive discharge claim.


Although the Court finds that Ikon is entitled to summary judgment on all of the claims asserted against it by Sheryleita McClendon based on the facts of this case, this order should not be read to condone in any way Tiffany Listrud's conduct. The conduct McClendon was exposed to was offensive and should never be tolerated in the workplace. However, the Court finds Listrud's conduct was not severe nor pervasive enough to support McClendon's claims. In addition, Ikon appears to have taken the appropriate steps in dealing with the conduct.

For the reasons stated, IT IS HEREBY ORDERED:

1. Defendant Ikon Office Solutions' Motion for Summary Judgment (Doc. No. 11) is GRANTED.



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