                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-1478
                                  ___________

James A. McCown,                        *
                                        *
             Plaintiff-Appellant,       *
                                        * Appeal from the United States
       v.                               * District Court for the Western District
                                        * of Missouri
St. John’s Health System, Inc.; Sisters *
of Mercy Health System; Lloyd Solar; *
William Syler; Robert Hammons; Paul *
Elmore; John Swope; Robert Norton;       *
St. John’s Regional Health Center        *
                                        *
             Defendant-Appellee.        *
                                   ___________

                        Submitted: September 11, 2003
                            Filed: November 12, 2003
                                 ___________

Before MELLOY, RICHARD S. ARNOLD, and FAGG, Circuit Judges.
___________

MELLOY, Circuit Judge.

    James Christopher McCown (“McCown”) appeals the district court’s1 entry of
summary judgment in favor of St. John’s Regional Health Center (“St. John’s”) on


      1
       The Honorable James C. England, United States Magistrate Judge for the
Western District of Missouri, presiding by consent of the parties under 28 U.S.C.A.
§ 636(c)(1).
sexual harassment claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. (2000), and the Missouri Human Rights Act, Mo. Rev. Stat. §
213.010, et seq. (2000). We affirm.

                                   I. Background

       McCown was employed by St. John’s as a general construction worker from
October 1994 until April 2001. Until October 2000, McCown worked in the projects
shop, under the direct supervision of Lloyd Soller2 (“Soller”). During this time
period, Soller subjected McCown to inappropriate conduct on multiple occasions
including: grabbing McCown by the waist, chest and buttocks; grinding his genitals
against McCown’s buttocks in simulated intercourse; telling McCown to “squeal like
a pig, or a woman,” and making other lewd comments; attempting to stick the handle
of a shovel and a tape measure in McCown’s anus; and kicking McCown in the
buttocks. Initially, McCown thought that Soller was kidding. Although McCown did
not understand what motivated Soller’s behavior, he speculated that Soller was trying
to “irritate” him because “that’s just how Lloyd was.” McCown repeatedly asked
Soller to stop, but Soller continued to engage in this offensive behavior.

      While both male and female employees worked in the projects shop with
McCown and Soller, the women primarily worked in the office while the men
performed physical labor in various other locations. Soller, however, only supervised
the men. There is no evidence in the record that Soller ever sexually harassed any of
the women in the projects shop.

       McCown reported Soller’s inappropriate behavior to Soller’s supervisors on
three different occasions. Dissatisfied with their response, McCown formally filed


      2
      Soller’s name is spelled incorrectly in the district court’s caption of the case
and appears as “Solar.”

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a complaint with the EEOC and the Missouri Commission on Human Rights.
Eventually, Soller’s supervisors conducted an internal investigation and removed
McCown from Soller’s supervision while giving Soller a disciplinary warning.
McCown worked in seclusion from the other employees in the projects shop and was
placed under the supervision of two managers. As a result, McCown often received
contradictory job orders. Frustrated by his new working conditions, McCown
resigned from St. John’s in April 2001.

       McCown filed suit against St. John’s alleging same-sex sexual harassment,
disparate treatment because of gender, retaliation, and constructive discharge in
violation of Title VII and the Missouri Human Rights Act. The district court granted
summary judgment on each claim. Presently, McCown appeals solely on the sexual
harassment claim and argues that the district court erred in determining that he failed
to state an actionable claim because he could not demonstrate that Soller’s conduct
was based on sex.
                                     II. Analysis

       We review a grant of summary judgment de novo. Quick v. Donaldson Co.,
90 F.3d 1372, 1376 (8th Cir. 1996). A party is entitled to judgment as a matter of law
only if it can show that no genuine issue of material fact exists. Fed. R. Civ. P. 56(c);
Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247-48 (1986). Summary judgment
is to be granted where the evidence is such that no reasonable jury could return a
verdict for the non-moving party. Anderson, 477 U.S. at 248. The evidence must be
viewed in the light most favorable to the non-moving party, and all justifiable
inferences are to be drawn in its favor. Id. at 255; Calder v. TCI Cablevision of
Missouri, Inc., 298 F.3d 723, 728 (8th Cir. 2002).

      “Title VII prohibits ‘an employer’ from discriminating ‘against any individual
with respect to his compensation, terms, conditions, or privileges of employment,
because of . . . sex.’” Quick, 90 F.3d at 1377 (quoting 42 U.S.C. § 2000e-2(a)(1)) .

                                          -3-
Discrimination based on sex which creates a hostile or abusive working environment
violates Title VII. Id. To state a claim for sexual discrimination based on a hostile
work environment under Title VII, a plaintiff must show: (1) he belongs to a
protected group; (2) he was subject to unwelcome sexual harassment; (3) the
harassment was based on sex; (4) the harassment affected a term, condition, or
privilege of employment; and (5) his employer knew or should have known of the
harassment and failed to take proper remedial action. Id. (citations omitted). The
third element, whether Soller’s harassment was based on sex, is the single issue on
appeal.

       Same-sex harassment claims differ from those between males and females
because the latter “typically involve[] explicit or implicit proposals of sexual
activity,” which create a presumption that the underlying conduct was based on sex.
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). However, this
presumption is applicable only if there is credible evidence to show that the alleged
harasser is sexually attracted to the plaintiff. Id. Consequently, without this
presumption, a same-sex harassment plaintiff needs other methods to prove that the
conduct was based on sex. Id.

       Oncale, the leading Supreme Court case on same-sex harassment claims, sets
forth three evidentiary routes by which a same-sex plaintiff can show that the conduct
was based on sex. Id. at 80-81. First, a plaintiff can show that the conduct was
motivated by sexual desire . Id. at 80. Second, a plaintiff can show that the harasser
was motivated by a general hostility to the presence of the same gender in the
workplace. Id. And third, a plaintiff may offer direct comparative evidence about
how the harasser treated both males and females in a mixed-sex workplace. Id. at 80-
81; see also Elmahdi v. Marriott Hotel Servs., Inc., 339 F.3d 645, 655 (8th Cir. 2003)
(in determining whether discrimination was based on sex, the plaintiff is required to
prove the harasser’s comments were motivated either by sexual desire, special
attention to plaintiff as a male, or that harasser treated males and females differently

                                          -4-
in a mixed gender environment). Oncale also emphasizes that “whatever evidentiary
route the plaintiff chooses to follow, he or she must always prove that the conduct at
issue was not merely tinged with offensive sexual connotations, but actually
constituted ‘discrimina[tion] . . . because of . . . sex.’” Oncale, 523 U.S. at 81
(emphasis and alteration in original) (quoting 42 U.S.C. § 2000e-2(a)(1)).

       There is no evidence in the record to demonstrate that Soller was homosexual
and motivated by sexual desire toward McCown. Nor is there evidence that Soller
was motivated by a general hostility to the presence of males in the workplace.
Instead, according to McCown, it appears that Soller was just trying to “irritate” him
because “that’s just how Lloyd was.” Additionally, we have previously found that
crude gender-specific vulgarity is not, by itself, probative of gender discrimination.
See Linville v. Sears, Roebuck & Co., 335 F.3d 822, 824 (8th Cir. 2003) (per curiam)
(finding that employer’s backhanding plaintiff in the scrotum and laughing “was
probative of crude, gender-specific vulgarity [but] . . . was not, by itself, probative of
gender discrimination”). Thus, we must consider whether McCown can offer direct
comparative evidence of how Soller treated males and females in a mixed-sex
workplace to determine if Soller’s conduct was based on sex.

       The key inquiry under Title VII is “‘whether members of one sex are exposed
to disadvantageous terms or conditions of employment to which members of the other
sex are not exposed.’” Oncale, 523 U.S. at 80 (quoting Harris v. Forklift Sys., Inc.,
510 U.S. 17, 25 (1993) (Ginsburg, J., concurring)). In other words, Title VII does not
prohibit workplace harassment unless it is based on sex. In this case, there is no
evidence to demonstrate that the area of the projects shop in which McCown worked
was a mixed-sex workplace. The only evidence before us is an affidavit by McCown
stating that the “workplace consisted of both men and women, although women
worked primarily in the offices.” The record indicates that Soller only supervised the
men who worked outside the office area of the projects shop in which the women
worked. The record is silent as to the amount of interaction that Soller had with the
women in the office area of the projects shop.

                                           -5-
         Even if the projects shop did qualify as a mixed-sex workplace, the only
evidence of Soller’s treatment towards women is found in McCown’s affidavit which
states McCown never knew of Soller sexually harassing female employees in the
workplace. McCown’s express absence of knowledge is not sufficient to generate a
jury question as to whether Soller’s conduct constituted “discrimina[tion] . . . because
of . . . sex.” 42 U.S.C. § 2000e-2(a)(1).

      Although Soller’s conduct was inappropriate and vulgar, there is insufficient
evidence to demonstrate that Soller’s conduct towards McCown was based on sex.

      Accordingly, we affirm.
                     ______________________________




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