                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0140
                            Filed December 24, 2014


TAMMY MARIE ROCHE,
    Plaintiff-Appellant,

vs.

DAVENPORT CLEANERS, INC., MARK
DAVENPORT, and SUE DAVENPORT,
     Defendant-Appellees.
________________________________________________________________

       Appeal from the Iowa District Court for Woodbury County, Jeffrey L.

Poulson, Judge.



       Following a bench trial, Tammy Roche appeals the district court’s denial of

her claims she was subjected to a sexually hostile work environment, and that

she was terminated in retaliation for reporting this harassment, in violation of the

Iowa Civil Rights Act. AFFIRMED.



       Jay E. Denne of Munger, Reinschmidt & Denne L.L.P., Sioux City, for

appellant.

       Angie J. Schneiderman of Berenstein, Moore, Heffernan, Moeller

& Johnson, L.L.P., Sioux City, for appellees.



       Heard by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
                                          2


VOGEL, P.J.

       Following a bench trial, Tammy Roche appeals the district court’s denial of

her claims she was subjected to a sexually hostile work environment and that

she was discharged in retaliation for her protected activity of reporting the

harassment, in violation of the Iowa Civil Rights Act (ICRA). Davenport Cleaners

argues the district court properly found that, because Roche also engaged in

name-calling and arguing, the harassment was not “unwelcome.”                It further

asserts the court was correct in its conclusion the harassment was not based on

a protected characteristic, given Roche was previously engaged in a relationship

with her harasser. Finally, it claims the district court properly found the reason

proffered for Roche’s termination was nondiscriminatory.

       We conclude substantial evidence supports the district court’s conclusion

the harassment was not unwelcome because Roche invited and reciprocated the

conduct of which she complains. We also agree substantial evidence supports

the district court’s conclusion that the harassment was not based on a protected

characteristic but the result of Roche’s failed romantic relationship with the

harasser. We, therefore, like the district court, do not need to address whether

Davenport Cleaners made reasonable efforts to ameliorate the alleged hostile

work environment because Roche failed to prove two of the four elements of a

hostile-work-environment claim.       Additionally, because a nondiscriminatory

reason existed for Roche’s termination, and Roche failed to meet her burden

showing this reason was pretextual, we affirm the district court’s denial of her

retaliation claim. We therefore affirm the decision of the district court.
                                        3


I. Factual and Procedural Background

        Roche began working for Davenport Cleaners in Sioux City, Iowa, in 1995.

Mark and Sue Davenport were the proprietors, and the business employed

approximately fifteen to twenty people. Roche was primarily involved in pressing

pants, and after taking time off work due to an injury and a pregnancy, Roche

returned to work full time in 2000. Until her termination, Roche received no

disciplinary reports and was never reprimanded. She stated she loved her job

and felt like the Davenports and her coworkers were family.

        John Vlahoulis began working at Davenport Cleaners in 1997 or 1998.

Roche and Vlahoulis began dating on February 11, 2005. They dated steadily

for approximately two years but then had an “on again, off again” relationship for

approximately six months. They officially ended the relationship in September

2007.

        Prior to dating Roche, Vlahoulis was in a relationship with Melinda

Hesse—another Davenport Cleaners employee.          They dated from 2001 until

2003. Hesse testified at trial, and it was undisputed, Roche and Hesse did not

have a very civil relationship.   There were several instances of altercations

between the two, which included name-calling on both their parts.          Roche

admitted to calling Hesse female derogatory names, and Sue Davenport testified

Roche had complained to her Hesse had keyed her car. Hesse stated she and

Vlahoulis were and are currently friends and that, during the course of Roche’s

employment, she saw Roche shove Vlahoulis.

        Roche testified Vlahoulis began verbally harassing her once their

relationship became more sporadic, and then the harassment became constant
                                        4


in the workplace once the relationship officially ended. She stated that when

Vlahoulis ended the relationship he would not engage in harassment, but if she

ended it he would, almost constantly, call her extremely derogatory names. His

occasional use of such name calling was not disputed.         There was also an

instance when Vlahoulis stated Roche gave him STDs, a statement for which he

was sent home for the day.

       Roche further testified some of this harassment was physical, such as one

instance when Vlahoulis pushed her by putting his elbow on her back and

another when he threw ice at her. Hesse testified she witnessed Roche push

Vlahoulis into some carts. However, the existence of the physical altercations

was not corroborated, and the district court concluded the accusations made by

both parties regarding the physical harassment were exaggerated and likely

untruthful in some form. Additionally, it was established Roche argued back with

Vlahoulis and would call him male-derogatory names. Coworkers recalled Roche

and Vlahoulis would enter each other’s work areas for no legitimate reason and

testified “they both did it.”

       On February 18, 2008, Vlahoulis stated he heard that Roche had hit

Hesse’s child at the mall. Roche went back to her work area, and Vlahoulis

followed, stating: “Did I hit a nerve?” Roche struck Vlahoulis in the forehead with

an open-faced palm, which did not result in an injury. Vlahoulis then slapped

Roche, which resulted in a red mark on her neck. Sue ordered Roche to go

home because “she hit first.” The next day, after Sue consulted with an attorney,

Roche was terminated as she had “created a hostile work environment” with the

first blow. During the phone call, Sue asked why Roche had “let him get to her.”
                                       5


      The video of the incident, admitted at trial, shows Vlahoulis following

Roche into her work space with nothing in his hands and waving his arms. He is

approximately two feet away from Roche.        Roche then pushes him in the

forehead with an open palm, and Vlahoulis responds by shoving her, with his

hands hitting her neck. There is no audio.

      Both Mark and Sue testified. In his testimony, Mark admitted to being

aware of Vlahoulis’s verbal comments to Roche and that Roche complained

directly to him of this behavior and her discomfort with it. He stated he was the

one who sent Vlahoulis home after Vlahoulis complained, within hearing of other

employees, that Roche gave him STDs.

      Sue also testified she was aware of the tension between Vlahoulis and

Roche. She stated that, when she would see the two of them arguing, she would

tell them to “knock it off” and send them to their respective work stations. She

stated she verbally reprimanded Vlahoulis many times over the course of two

years. Mark and Sue characterized Vlahoulis’s behavior towards Roche as an

ongoing situation, but one they could not consistently address because the

relationship was “on again, off again.” Sue stated that when Roche complained

of the behavior, Roche would say she did not want to get Vlahoulis in trouble.

Mark testified Roche would tell him they were back together and “everything’s

okay now.”    The Davenports did not want the two to bring their personal

problems into work, but when they were back together, “everything was fine.”

      Vlahoulis testified as well. He admitted he pleaded guilty to the crime of

harassing Roche following an incident in a Walmart parking lot, which occurred
                                            6


after Roche’s termination.1 When asked if he did in fact call Roche various

derogatory names, he stated it “was very possible,” but it was due to Roche

“pushing his buttons,” and that she engaged in the same type of behavior.

Roche also became very close to Vlahoulis’s mother during the volatile

relationship. However, when the couple would have problems, Roche would go

to Vlahouis’s mother’s house, upsetting her and bringing her to tears.                The

following exchange also occurred during cross-examination:

             Q: Did you tell the civil rights investigator that how is a Greek
       man that is in love with a woman supposed to react? A: Yes, I did.
             Q: What did you mean by that? A: Well, you know, there
       was a time when I loved Tammy. There was a time when I had
       considered asking Tammy to marry me. There was a time that
       Tammy and I had made plans to go to Greece and have a wedding.
             Q: So you feel scorned by her; is that right? A: I feel
       scorned.

       Various other witnesses who were either current or former employees

testified as part of Roche’s case-in-chief. Eva Schrunk and Dorothy Swanson

stated they heard arguments occur between Roche and Vlahoulis but they did

not give any specifics as to what was said. Janell Siljenberg testified in a similar

manner, in which the following exchange occurred:

              Q: Did you personally observe anything or [are the problems]
       something you just heard about secondhand? A: I didn’t see too
       much. I’d hear, you know—one of them would go by—you know,
       they would go by each other and have something to say, but I
       never heard exactly what they said, but, you know, something
       negative to each other. Go back and forth.



1
 The events of that day were somewhat disputed at trial. Roche stated Vlahoulis began
yelling at her once he saw her talking to his brother in the Walmart parking lot, and then,
after she walked over to another man, he “started accusing that guy of sleeping with
me.” Vlahoulis testified: “I was trying to protect my family after being—after telling
Tammy many times to stay away.” Nothing from the criminal conviction was entered into
evidence.
                                        7


             Q: It’s your testimony at this point you don’t recall what they
       said? A: No. I don’t recall that.

       Wendy    Thompson,     another    coworker,   testified   she   never   saw

inappropriate behavior occurring between the two.          She also stated that

subsequent to her termination Roche continued to send her text messages.

Specifically:

              Q: So Ms. Roche would ask you to listen for particular songs
       on the radio after she was terminated? A: Yes.
              Q: And would she ask you to watch for anyone’s reaction?
       A: Yes.
              Q: And whose reaction? A: John’s.
              Q: And do you know why she was asking you to do that?
       A: Because it would make him mad.

       Katie Kamerzell, Roche’s friend and neighbor, testified that while Roche

was working at Davenport Cleaners she would frequently appear distraught.

When Kamerzell inquired about what was wrong, Roche indicated she was upset

because Vlahoulis was making “sexual slurs, sexual innuendos about her

conduct that was just degrading and humiliating.” She further stated Roche was

emotionally devastated following her termination.

       The transcript of Roche’s hearing for unemployment benefits was entered

into evidence. According to the transcript, Sue stated Thompson told her that

Roche “should not be talked to like that.” However, Thompson denied making

that statement at trial, and Sue testified she could not specifically remember

Thompson making that statement but that it was possible.                 The final

unemployment decision was not entered into evidence, but testimony established

benefits were granted to Roche following the hearing and were later denied on

appeal.
                                         8


       On November 1, 2011, Roche filed a petition alleging a violation of her

rights under the ICRA, as set forth in Iowa Code chapter 216 (2011).            She

asserted she was subjected to a hostile work environment and was discharged in

retaliation for engaging in a protected activity, that is, telling Mark and Sue about

the harassment.2 A bench trial was held on October 29 and 30, 2013. The

district court entered its ruling on December 24, 2013, denying Roche’s claims,

finding she had not met her burden of proof on either her sexually-hostile-work-

environment claim or her retaliation claim. Roche appeals.

II. Standard of Review

       Our review of claims tried to the district court under the ICRA is for

correction of errors at law. Falczynski v. Amoco Oil Co., 533 N.W.2d 226, 230

(Iowa 1995) (“Our review of discrimination claims tried to the court is at law.”).

The district court’s findings of fact are entitled to the weight of a special verdict

and are binding on appeal if supported by substantial evidence. Lynch v. City of

Des Moines, 454 N.W.2d 827, 829 (Iowa 1990).             If there is no substantial

evidence to support a finding upon which the lower court arrives at a challenged

conclusion of law, the finding is not binding on this court.          Offermann v.

Dickinson, 175 N.W.2d 423, 426 (Iowa 1970).

III. Sexually Hostile Work Environment

       Roche first argues the district court erred in finding she did not meet her

burden of proof with regard to her claim she was subject to a sexually hostile

work environment.      She asserts the harassment by Vlahoulis, due to its

2
  The petition also alleged she was discriminated against based on her gender.
However, that claim was not pursued at trial, and the district court in its opinion
dismissed the claim. The argument was not pursued on appeal.
                                          9


pervasiveness and the extreme derogatory nature of the insults, was in fact

unwelcome, and even though she occasionally engaged in name-calling and

arguing, this did not mean she participated in the conduct of which she

complained.     She further claims the court improperly concluded that, just

because she was previously in a relationship with Vlahoulis, this harassment was

not based on a protected characteristic, that is, the fact she is female.

       To establish a hostile-work-environment claim under the ICRA, the plaintiff

must show that:

       (1) he or she belongs to a protected group; (2) he or she was
       subjected to unwelcome harassment; (3) the harassment was
       based on a protected characteristic; and (4) the harassment
       affected a term, condition, or privilege of employment. Additionally,
       if the harassment is perpetrated by a nonsupervisory employee, the
       plaintiff must show the employer knew or should have known of the
       harassment and failed to take proper remedial action.

Boyle v. Alum-Line, Inc., 710 N.W.2d 741, 746 (Iowa 2006) (quoting Farmland

Foods v. Dubuque Human Rights Comm’n, 672 N.W.2d 733, 744 (Iowa 2003)).

Because the ICRA is based on Title VII, we also look to the federal courts for

guidance with respect to the interpretation of whether the plaintiff met her burden

of proof. DeBoom v. Raining Rose, Inc., 772 N.W.2d 1, 7 (Iowa 2009).

       It is undisputed Roche belongs to a protected class due to the fact she is

female.     Consequently, we will proceed to discuss the merits of the other

elements.

       A. Unwelcome Conduct

       The district court concluded Roche failed to meet her burden of proof on

this element because she reciprocated and even initiated the harassment with

Vlahoulis. We conclude substantial evidence supports this finding. “A plaintiff
                                          10


cannot create a genuine issue of material fact with regard to unwelcome behavior

when she engages in the conduct complained about.”                Hoevar v. Purdue

Frederick Co., 223 F.3d 721, 736 (8th Cir. 2000).            In Hoevar, the plaintiff

complained of behavior in which her supervisor used derogatory words, but the

plaintiff admitted to also using the same words “around the supervisor and other

employees.” Id. at 736–37. The court then found “that these actions on the part

of Hoevar vitiate her contention that the mere use of these words was

unwelcome.” Id.

       In this case, the district court stated it found credible the fact Roche “either

responded to or initiated arguments with her own vulgar language directed

towards Mr. Vlahoulis and Ms. Hesse.” It further concluded “the harassment was

reciprocated and initiated by Plaintiff because of the failed personal relationship

between her and Mr. Vlahoulis.” In addition, two coworkers whom the court

found very credible, testified both Roche and Vlahousis would enter each other’s

work area, for no work-related purpose.          “[T]he conduct at issue must be

‘unwelcome’ in that the plaintiff neither solicited it nor invited it and regarded the

conduct as undesirable or offensive.” Scua v. Nestle U.S.A. Co., 181 F.3d 958,

966 (8th Cir. 1999) (citing Meritor Sav. Bank v. Vinson, 477 U.S. 57, 68 (1986)).

While the district court stated it believed Roche subjectively considered the

harassment offensive, the court could not find Roche proved it was “unwelcome”

because Roche solicited or invited the behavior. We find the district court’s

conclusion that Roche failed to meet her burden of proving this element of her

hostile-work-environment claim is supported by substantial evidence.              See

Lynch, 454 N.W.2d at 834 (noting the conduct “must be unwelcome in the sense
                                        11


that the employee did not solicit or incite it, and in the sense that the employee

regarded the conduct as undesirable or offensive,” citing Henson v. City of

Dundee, 682 F.2d 897, 903 (11th Cir. 1982)).

       B. Discrimination Based on a Protected Characteristic

       Roche next argues the district court erred in finding the harassment was

not based on her sex due to the fact Roche and Vlahoulis were previously in a

relationship. She asserts Vlahoulis’s use of the insulting, gender-specific, and

overtly sexual terms clearly indicates the harassment was based on her status as

a female.    She further claims that to hold a former lover only harassed her

because of the previous relationship would essentially give carte blanche to any

former paramour who began harassing a plaintiff in the work place. This, she

asserts, is poor public policy.

       In concluding Roche did not meet her burden showing the discrimination

was based on sex, the district court stated:

               Plaintiff’s own testimony established the harassment by Mr.
       Vlahoulis only occurred after the two ended any current
       relationship. Plaintiff testified Mr. Vlahoulis would never say any
       offensive or vulgar language to her when they were in a
       relationship; it was not until one of the two ended their romantic
       relationship that the harassment would commence again. This
       cause-and-effect relationship suggests to the Court the basis for
       the harassment: Mr. Vlahoulis would be upset about his ending
       relationship and would take it out on his former paramour.
       Furthermore, multiple witnesses testified to the fact that Mr.
       Vlahoulis got along with his other former girlfriend, Ms. Hesse, even
       after the two ended their relationship and he began dating Plaintiff.
       Additionally, Defendants never received any complaints about Mr.
       Vlahoulis’ behavior toward other females in the workplace, and no
       evidence exists to suggest Mr. Vlahoulis was anything but cordial to
       the remaining twelve female co-workers employed at the time. The
       simple use of the word “b*tch” and other gender-specific vulgarities
       “is not an indication of a general misogynist attitude. Rather it is a
       crude, gender-specific vulgarity, which in this case was directed
                                           12

       toward only one woman, rather than women in general.” Kriss v.
       Sprint Commc’ns Co., 58 F.3d 1276, 1281 (8th Cir. 1995).

       While it is true some of the words used by Vlahouis have female

connotations, the words were spoken to Roche not because of her sex but as a

result of the ending of the relationship between Roche and Vlahoulis. Roche

used female derogatory terms against Hesse. See Canady v. John Morrell, Co.,

247 F. Supp. 2d 1107, 1118 (N.D. Iowa 2003) (finding the term “b*tch” was used

by both men and women and in the context of the case did not convey a gender-

based animus); see also Kriss, 58 F.3d at 1281 (holding the use of the term

“b*tch,” even though it is a gender-based insult, without more does not serve to

establish the plaintiff would not have been harassed but for her sex); but see

Burns v. McGregor Elec. Indus., 989 F.2d 959, 964–65 (8th Cir. 1993) (reversing

district court’s grant of summary judgment and holding terms such as “b*tch,”

“sl*t,” and “c*nt” directed to female employee amounted to harassment based on

her sex).

       We are bound by the trial court’s findings of fact if those findings are

supported by substantial evidence. Falczynski, 533 N.W.2d at 230. Because we

must consider the evidence in the light most favorable to upholding the district

court’s judgment and because a reasonable mind would accept the evidence

offered as adequate to reach the same conclusion as the district court, we must

affirm the district court’s decision.3 Id. Because substantial evidence supports

the district court’s conclusion that Roche failed to prove two of the four

3
  Roche has a difficult burden to carry in this case as we only interfere with a district
court’s judgment following a bench trial if the evidence is “so overwhelming that only one
reasonable inference on each critical fact issue can be drawn” such as would entitled
Roche to judgment as a matter of law. See Falczynski, 533 N.W.2d at 230.
                                         13


requirement elements, it correctly denied her hostile-work-environment claim.

There is, as a result, no need to address whether the employer knew or should

have known of the harassment or analyze whether proper remedial action was

taken.

IV. Retaliation Claim

         Roche’s final argument asserts the district court improperly concluded her

retaliation claim had no merit. She claims the reason given for her termination—

that she “hit first” and had created a “hostile work environment”—was pretextual.

Rather, she claims she was fired for engaging in the protected activity of

attempting to get Davenport Cleaners to end the harassment and therefore

asserts she met her burden with regard to this claim.

         To establish a prima facie case of retaliation under the ICRA, a plaintiff

must show: (1) he or she was engaged in statutorily protected activity; (2) the

employer took adverse employment action against him or her; and (3) there was

a causal connection between his or her participation in the protected activity and

the adverse employment action taken. Estate of Harris v. Papa John’s Pizza,

679 N.W.2d 673, 678 (Iowa 2004). When a prima facie case is established, the

burden then shifts to the employer to establish a nonretaliatory reason for the

adverse employment decision. Id. If the employer is able to carry this burden,

that is, if it is able to offer a nondiscriminatory reason for the termination, the

burden then shifts to the plaintiff to show the reason was pretextual. Deboom,

772 N.W.2d at 11.
                                            14


       We agree with the district court Roche established a prima facie case of

retaliation under the ICRA.4 The burden then shifts to the employer to show a

nondiscriminatory reason for the termination.           See id.    “This is a burden of

production, not persuasion, and no credibility assessment is involved.” Smidt v.

Porter, 695 N.W.2d 9, 15 (Iowa 2005). The Davenports’ proffered reason for the

termination is that Roche hit first, and they were concerned she had created a

hostile work environment. This is “a legitimate nondiscriminatory reason,” and

the burden then shifts to Roche to show “that unlawful discrimination was the real

reason for the termination.” See id.

       We agree with the district court Roche was unable to carry her burden to

show she was terminated for engaging in the protected activity of reporting the

harassment. It was established through testimony that the policy of the work

place was to fire employees who engaged in violent behavior. Even though

Vlahoulis was not terminated after engaging in arguably even more violent

behavior towards Roche, this was nonetheless a nondiscriminatory reason for

Roche’s termination. As the district court noted, unwise, unfair, and ill-advised

adverse employment actions do not suffice to establish a retaliation claim under

the ICRA. See Nelson v. James H. Knight DDS, P.C., 834 N.W.2d 64, 71–72




4
  We note the district court stated the discrimination had to be “the determining” factor in
the adverse employment decision. This is an incorrect statement of law—rather, “the
plaintiff need only demonstrate termination occurred under circumstances giving rise to
an inference of discrimination and his or her status as a member of a protected class
was a determining factor in the decision to terminate employment.” Deboom, 772
N.W.2d at 13 (internal citation omitted). However, this standard is employed when
determining whether the plaintiff has established a prima facie case of discrimination. Id.
Here, the court properly concluded Roche met her burden showing a prima facie case,
and therefore, its misstatement of law is not reversible error.
                                         15


(Iowa 2013).    Consequently, substantial evidence supports the district court’s

conclusion, and we affirm its denial of Roche’s retaliation claim.

V. Conclusion

        Having considered Roche’s arguments, we conclude the district court’s

decision, finding Vlahoulis’s conduct was not unwelcome and finding the

harassment was not based on a protected characteristic, is supported by

substantial evidence. Additionally, because a nondiscriminatory excuse existed

for Roche’s termination, and Roche did not meet her burden to show this reason

was pretextual, we affirm the district court’s denial of Roche’s retaliation claim.

        AFFIRMED.

        Potterfield, J., concurs; Vaitheswaran, J., concurs in part and dissents in

part.
                                         16


VAITHESWARAN, J. (concurring in part and dissenting in part)

       I concur in part and dissent in part. I agree with the majority’s disposition

of the retaliation claim but I would reverse the hostile work environment claim.

First, I cannot find substantial evidence to support the district court’s

determination that Roche welcomed the more than occasional sexually-charged

comments by Vlahoulis. While she certainly “gave as much as she got,”5 Mark

Davenport admitted Roche complained about Vlahoulis’s language.                  He

conceded Vlahoulis called Roche a whore, among other things, and agreed it

was never permissible for a man in a workplace to call a woman a whore.

       I also discern insubstantial evidence to support the district court’s finding

that “the harassment directed at Plaintiff was not based on her gender.”

Vlahoulis used highly pejorative sexual language when speaking to and about

Roche.    As in Lynch, the insulting comments “were particularly reserved for

women.”    Lynch v. City of Des Moines, 454 N.W.2d 827, 834 (Iowa 1990).

Roche’s prior romantic relationship with Vlahoulis did not change this fact. As

the Iowa Supreme Court stated in Lynch, the plaintiff “would not have been

subjected to such pervasive harassment but for the fact that she is a woman.” Id.

In my view, the same holds true for Roche.

       I also believe the third element—whether the harassment affected a term,

condition or privilege of employment—is satisfied. Again, I look to Lynch, where

the court found the “work environment was so polluted by sexual harassment that

it affected [Lynch’s] psychological and emotional well-being.” Id. at 835. The


5
  See Lynch v. City of Des Moines, 454 N.W.2d 827, 834 (Iowa 1990) (affirming finding
of unwelcome harassment even though Lynch “sometimes gave as much as she got.”)
                                        17


district court found “Vlahoulis’s behavior towards Plaintiff was sufficiently

pervasive, because according to Plaintiff’s testimony he directed vulgar

profanities and statements to her at least once a week if not every other day.” I

believe this finding is supported by substantial evidence.

      Finally, Mark Davenport’s testimony confirms the employer knew of the

harassment and took action on only one occasion—when he sent Vlahoulis

home for the day after he made a particularly incendiary comment.            The

Davenports did not otherwise address the pervasive use of sexually-charged

language directed at Roche.

      For these reasons, I would reverse the district court’s ruling on Roche’s

hostile work environment claim.
