     Case: 12-10869       Document: 00512244175         Page: 1     Date Filed: 05/16/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           May 16, 2013
                                     No. 12-10869
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JULIE KUMMERLE,

                                                  Plaintiff - Appellant

v.

EMJ CORPORATION,

                                                  Defendant - Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:11-CV-2839


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Julie Kummerle (“Kummerle”) appeals the FED. R. CIV.
P. 12(c) dismissal of her Title VII retaliation claim. She alleges that her former
employer, EMJ Corporation (“EMJ”), terminated her because she complained
about public displays of affection between a male supervisor and female co-
worker.     Because Kummerle’s pleadings fail to establish that she had a
reasonable belief that EMJ’s work environment violated Title VII, we AFFIRM.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                 No. 12-10869

      Kummerle asserts that her former supervisor, Ray Catlin (“Catlin”), and
another employee, Daisy Owens (“Owens”), created a “sexually charged
atmosphere” at EMJ by frequently engaging in consensual intimate conduct
(such as Catlin’s rubbing Owens’s back) in front of other employees. She
contends that the public displays of affection, while not sexually explicit, were
offensive to observers. In May 2011, Kummerle and another employee, Carolyn
Paulus (“Paulus”), complained to EMJ’s Chief Operating Officer about the
discomfort they and other females in the office felt as a result of the behavior.
Shortly thereafter, Kummerle was terminated by Catlin.
      Kummerle sued EMJ, asserting hostile work environment and retaliation
claims under Title VII. After concluding that Kummerle failed to plead facts
establishing a reasonable inference that either the unwelcome harassment was
based on Kummerle’s sex or that her belief that she was subjected to a hostile
work environment was objectively reasonable, the district court dismissed both
claims with prejudice. Kummerle appeals the dismissal of her retaliation claim.
      We review a district court’s order granting a Rule 12(c) motion for
judgment on the pleadings de novo, using the same standards applied to a Rule
12(b)(6) motion to dismiss. Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir.
2004). We accept a complaint’s well-pleaded facts as true and view them in the
light most favorable to the plaintiff. Id. “Threadbare recitals of a cause of
action, supported by mere conclusory statements, do not suffice.” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009).
      Title VII makes it unlawful for an employer to retaliate against an
employee who opposes an employment practice that violates Title VII. 42 U.S.C.
§ 2000e-3(a). To establish a retaliation claim, a plaintiff must plead facts
showing that she had a reasonable belief that the employer was engaged in an
unlawful employment practice. Byers v. Dallas Morning News, 209 F.3d 419,
428 (5th Cir. 2000).



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                                       No. 12-10869

       Kummerle argues that she reasonably believed that the public displays of
affection between Catlin and Owens created a hostile work environment in
violation of Title VII. We disagree. As adequately explained by the district
court, Kummerle’s pleadings contain no indication that the consensual intimate
conduct between Catlin and Owens was either motivated by a discriminatory
intent toward women or sufficiently egregious to come close to establishing an
unlawful work environment.1            The reasonableness of Kummerle’s belief is
further undermined by the fact that she fails to cite any case holding that public
displays of affection in the workplace are sufficient to cause a violation of Title
VII. But cf. Bourbeau v. City of Chicopee, 455 F. Supp. 2d 106, 113 (D. Mass.
2006) (“The court is aware of no decision under Title VII . . . which would extend
hostile work environment protection to an employee . . . who simply witnessed
. . . amorous contact [such as kissing, back rubbing, and intimate embracing]
between two co-workers.”). Offensive and unprofessional behavior by co-workers
is not, alone, a violation of law. Therefore, the district court correctly held that
Kummerle’s retaliation claim fails as a matter of law.
       The judgment of the district court is AFFIRMED.




       1
           Contrary to Kummerle’s assertions, the district court did not err by applying a
“reasonable person” standard instead of a “reasonable woman” standard when it evaluated the
hostility of the alleged harassment. See, i.e., Butler v. Ysleta Indp. Sch. Dist., 161 F.3d 263,
269 (5th Cir. 1998) (stating that a sexually objectionable environment must be “one that a
reasonable person would find hostile or abusive” (quoting Faragher v. City of Boca Raton,
524 U.S. 775, 787, 118 S. Ct. 2275, 2283 (1998)) (emphasis added)). The term “reasonable
person” is a gender neutral way of referring to a “reasonable woman” or a “reasonable man.”


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