Citations
- 483 F. Supp. 2d 777
Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
BENNETT, District Judge.
TABLE OF CONTENTS
I. INTRODUCTION..........................................................783
A. Factual Background...................................................783
B. Procedural Background................................................788
II. LEGAL ANALYSIS........................................................790
A. Standards For Summary Judgment.....................................790
B. Individual Liability...................................................792
C. Sexual Harassment ...................................................793
1. Arguments of the parties...........................................793
a. The defendants’ initial argument ...............................793
b. Parada’s response.............................................794
c. The defendants’reply..........................................794
d. The parties’ oral arguments ....................................795
2. Analysis..........................................................798
а. Elements of the claim..........................................798
б. Harassment by Warntjes and Herbst............................799
i. “Unwelcome” harassment..................................799
ii. “Severe” harassment......................................801
D. Sexual Discrimination.................................................804
1. Arguments of the parties...........................................804
a. The defendants’ initial argument...............................804
b. Parada’s response.............................. 804
c. The defendants’reply........................... 805
2. Analysis..........................................................805
a. Prohibitions and analytical process.............................805
b. Parada’s prima facie case......................................806
i. The “qualification!meeting legitimate expectations” element................................................ 806
ii. The “similarly situated male/inference of discrimination” element.................................807
c. The defendants’ leyitimate reasons..............................808
d. Pretext and discriminatory animus .............................810
E. Retaliation...........................................................811
1. Arguments of the parties...........................................811
a. The defendants’initial argument ...............................811
b. Parada’s response.............................................812
c. The defendants’ reply.......... 812
d. Parada’s oral argument........................................812
2. Analysis..........................................................813
a. Parada’s prima facie case......................................813
i. Protected activity.........................................813
ii. Causal connection.........................................813
b. Legitimate reason and pretext..................................814
F. Unequal Pay .........................................................815
1. Arguments of the parties...........................................815
a. The defendants’ initial argument ...............................815
b. Parada’s response.............................................816
c. The defendants’reply..........................................816
2. Analysis..................................................... 816
a. Prohibitions and applicable standards ..........................816
b. Parada’s prima facie case......................................818
III. CONCLUSION............................................................819
A female “service writer” for a company that sells and services diesel trucks alleges that she was subjected to sexual harassment, sexual discrimination, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Iowa Civil Rights Act, Iowa Code Ch. 216, and unequal pay in violation of the Equal Pay Act, 29 U.S.C. § 206(d). The defendants — the company, one of its owners, and two of its managers — have moved tor summary judgment on all of the plaintiffs claims. Thus, the court must determine which, if any, of the plaintiffs claims should go to a jury.
I. INTRODUCTION
A. Factual Background
The court will not attempt here an exhaustive dissertation on the undisputed and disputed facts in this case. Rather, the court will set forth sufficient of the facts, both undisputed and disputed, to put in context the parties’ arguments concerning the defendants’ motion for summary judgment.
The parties agree that plaintiff Jennifer Parada applied for an advertised position as a diesel technician with defendant Great Plains International Of Sioux City, Inc. (GPI), in March 2004, shortly after completing a diesel technician and service management course at a technical school in Wyoming. GPI is a diesel sales, service, and repair facility in Sioux City, Iowa. Defendant Robert Bye is the president of GPI and one of its shareholders. Defendant Arnold Warntjes is the service manager for GPI and defendant Larry Herbst is the body shop manager. The defendants contend that, during the time that Parada worked at GPI, GPI employed in the service department a day lead person, a night lead person, a warranty clerk, and eight to twelve diesel technicians/mechanics. Parada disputes that all of these positions were filled continuously during her tenure and disputes the number of diesel technicians employed by GPI. The defendants also assert that diesel technicians were paid between $8.50 and $17.50 per hour, depending upon experience, longevity, and duties. Parada does not dispute that contention.
Instead of hiring Parada for the advertised diesel technician position, however, GPI offered Parada a newly-created position as a “service writer,” because the hiring manager noted that Parada had some service management training. GPI managers hoped that the new service writer would improve customer satisfaction, because the service writer would take over some of the duties formerly performed by GPI’s “lead” mechanics and a warranty clerk, as well as other duties that the company’s managers felt were not being performed adequately. The defendants describe the service writer position as “experimental,” but Parada denies that characterization. She does, however, admit that she knew that GPI had not had a service writer before, so that she would be the first service writer at GPL Parada accepted the service writer job. The parties agree that Parada was paid $11.50 per hour, which the defendants assert was well above what she would have received as a starting diesel technician. The defendants also point out that Parada had no experience as a diesel technician. Parada counters that she had experience through training. Parada started working for GPI as GPI’s service writer in April 2004.
Although there are no written job descriptions for positions at GPI, the parties agree that Parada’s duties as the service writer consisted of the following: greeting customers, writing up work orders; scheduling and assigning work to be done by the technicians; estimating completion time for the customer; obtaining information about the vehicles brought in for repair; keeping customers advised about the progress of their repairs; handling warranty parts; interacting with technicians; completing information on repair orders, including the customer’s complaint, the cause identified by the diesel technician, and the correction made; establishing the customer’s method of payment; interacting with customers to be sure that they were satisfied with service and repairs; and performing some vehicle repairs. Parada asserts that, in addition, the duties of the service writer included doing some of the work formerly done by the day lead person, although she does not specify what work; keeping the diesel technicians advised of service bulletins; making sure that the diesel technicians did their “stories” on hard cards; picking up and returning customer trucks; and operating a forklift.
The defendants contend that the duties of the lead person included the following: performing work on repair orders; diagnosing the cause of reported malfunctions; examining trucks to see if additional safety or service work was needed; documenting the work performed; reviewing and understanding technical bulletins; test driving and shuttling vehicles; training and supervising all technician’s work; assisting technicians when needed; assigning work to technicians; preparing estimates; administering housekeeping and safety procedures; using a forklift properly; reviewing “hard cards” turned in by technicians to assure that assigned work had been performed; handling customer complaints and service technician problems; advising the credit department of jobs that exceeded the initial estimate; being responsible for repairs needed to shop equipment and supplies; welding parts on trucks if needed; approving the diagnoses made by technicians and the parts required for repairs; and documenting the mechanics’ work. Parada asserts, however, that the lead person did not have any “express” duties.
The day lead person quit shortly after Parada was hired. Parada contends that, from the time that the day lead person quit until she was terminated, she was not just the “service writer,” but actually served as the “service writer/lead person” for the day shift. In September 2004, the night lead person also quit. Parada contends that, prior to the hiring of a new night lead person, and for a period of about a month beginning in December 2004, when the new night lead person was off work recovering from a car accident, she served as the night lead person two nights a week in rotation with the service manager (Warntjes) and the body shop manager (Herbst). Although the defendants admit that Parada covered some of the day lead person’s duties, they contend that she was unable to cover all of the duties formerly performed by the day lead person. The defendants also admit that Parada occasionally covered for the night lead person, before a new night lead person was hired and during the time the newly-hired night lead person was off work because of a car accident, but they dispute that Parada performed or could perform all of the same duties that were regularly performed by the night lead person.
The parties agree that William J.R. Riecks, the new night lead person hired in October 2004 — with whom Parada compares herself for purposes of her unequal pay claim — had more than twenty years of experience as a diesel mechanic, but they disagree about the extent to which he had prior supervisory experience. The defendants contend that Parada has admitted that she did not know what Riecks’s experience was or precisely what duties Riecks performed, and that she did not and could not perform all of the same duties he performed, even when she covered for him during his absence. In contrast, Parada contends that Riecks had no “express” duties as the night lead person, and that, in any event, she performed his duties in his absence.
Parada also contends that, because of restrictions from prior injuries, Riecks did not perform much actual repair work and, instead, was restricted to light work, such as changing light bulbs. Parada also contends that Riecks did not even have his own tools at GPI, so that he borrowed tools from a subordinate. As the defendants point out, the page of her appendix that Parada cites for this contention, page 48a, does not exist, nor is there any such statement on any of the four deposition pages that appear at page 48 of Parada’s Appendix. Moreover, Riecks testified in his deposition that he did have his own tools at GPI, see Defendants’ Supplemental Appendix at 1; see also Plaintiffs Appendix at 43, and that he performed other tasks, besides changing light bulbs. See Plaintiffs Appendix at 45.
The parties agree that Riecks was paid $16.00 per hour, which the defendants contend included a $1.50 per hour “night shift differential.” Parada contends that she was not paid a “night shift differential” when she covered Riecks’s duties in his absence, but the defendants point out that neither was anyone else who substituted on the night shift. The parties agree that Riecks had a commercial drivers license (CDL), but Parada did not. The defendants contend that the ability to test drive and shuttle vehicles was a desirable ability for diesel repair work, which is why a CDL was a desirable qualification for a lead person or diesel technician. Parada disputes any contention that a CDL was required to test drive or shuttle vehicles, and contends that she actually performed such work. She also contends that, if a CDL had been required for her position, she could have obtained one. Parada also disputes the defendants’ contention that she was less able than Riecks to train or assist other diesel mechanics, despite the obvious disparity in their years of experience as diesel mechanics.
Shawn Holler was a diesel technician at GPI with whom Parada apparently had frequent conflicts. Holler was required to take work assignments from Parada, but Parada reported to Warntjes and Bye, on numerous occasions, that Holler would not do the work that she assigned him and made comments about her, her qualifications, and her competence.
More specifically, Parada alleges that, at one point during the week of December 13, 2004, Holler was swearing so badly about Parada that Bye overhead him and went into Warntjes office to talk with him about it. She also alleges that, on January 24, 2005, Holler would not do what Parada told him to do, told other employees not to listen to her, called her a bitch behind her back, and flaunted her authority by doing unassigned and unauthorized work on a customer’s truck, despite a warning from Warntjes, and that Parada eventually called Bye, who told Holler that Parada was in charge. Holler purportedly then told Parada, “We’ll see who still has a job tomorrow,” and with a hammer in his hand and looking in her direction said, “You know whose head I would like to bash in with this?” According to Parada, this incident was sufficiently severe that other employees at GPI recommended that she seek assistance in leaving at the end of the shift, and she had to call her spouse to take her home. Next, Parada alleges that, on February 9, 2005, Holler made a comment to another diesel technician in her presence that it “seems anymore that people that come out of school don’t know anything,” and later that same day, made a comment about a work order that Parada had written stating that the brakes on a vehicle were grabbing, suggesting that the order made no sense, because brakes are supposed to grab. Parada also alleges that, on February 11, 2005, Holler interrupted her while she was talking to a customer on the telephone, then complained to her supervisor when she turned her back on him to try to continue the telephone conversation, and later that same day, refused a work order that she gave him, prompting her to complain to Warntjes about Holler’s attitude towards her. Parada alleges, next, that on February 14, 2005, Holler stated to a co-employee in her presence, “I wonder about the qualifications of a lot of people here.” On February 17, 2005, Holler allegedly went, unassigned, to a customer lot. On February 18, 2005, Holler allegedly stated to a co-worker, “Notice the transmission person is not doing any of the transmission work,” referring to Parada, who was known as the “transmission person,” because she had attended “transmission school.” On February 28, 2005, Holler allegedly told co-workers, in Parada’s presence, that “she’s not my boss.” Also, during the last week of February 2005, Holler allegedly told Herbst, in Parada’s presence, “Some people they hire here,” “Arnie [Warntjes] was really scraping the bottom of the bowl when he hired these people,” and “it puts stress on the rest of us technicians that know how to do our jobs.” Finally, Parada alleges that Holler kept parking in her parking place. Parada admits that Holler’s comments and conduct were not sexual or impliedly sexual and that none of her complaints about Holler to management were about sexual harassment.
The parties agree that, on one occasion, Parada called Bye twice during one shift to complain that Holler was not following her directions, and that Bye then came to the shop, told Holler that he had to do the work assigned to him by Parada, and sent Holler home for the rest of the shift. Par-ada also admits that when she complained to Warntjes about Holler’s refusal to do assigned work and other insubordinate behavior, Warntjes supported her and spoke to Holler. However, Parada also contends that Warntjes did not do anything that resulted in correcting Holler’s behavior and, instead, that he exacerbated the problem by assigning her and Holler to the same shifts. Parada also contends that, on one occasion, Warntjes turned his back on her, supposedly in the same way that she had responded to Holler when he interrupted her on the telephone, and said something to the effect that she could see how rude treatment was given back to her. Parada also alleges that, on at least one occasion, Warntjes stood outside the service department door, pointed at her and then at Holler, and shook his head up and down, apparently suggesting that there was a relationship between them.
Parada also alleges that Warntjes, her direct supervisor, and Herbst, the body shop manager, made sexually offensive comments to her, usually in the service office while Parada was taking breaks. Parada contends that the conduct of Warntjes in question consisted of the following: telling her that a bald spot on the top of her head was caused by hitting her head on the bed post, presumably suggesting that she had been having sex at the time; asking her if she had rug burns on her face; asking her on two occasions if she wanted anything from Victoria’s Secret, and on one of those occasions, asking if she wanted “motion lotion”; asking if her husband was waiting for her wearing a bathrobe, cigar, and bubbles, and whether they did something, which he indicated by whistles or gestures, presumably indicating sexual activity; asking her if she had had wild, passionate, unrestrained monkey loving; asking her what happened to her chin and if she was going through puberty; asking her to talk about sex; asking her, on perhaps as many as fifty occasions, what she had done on the preceding weekend, purportedly indicating by whistles or gestures that he was asking about sexual activity; and asking her on a few occasions what she had for dinner the night before, again purportedly indicating by whistles or gestures that he was suggesting something sexual. Parada asserts that most of Herbst’s allegedly harassing behavior consisted of laughing at Warntjes’s comments. Parada also contends that, on a weekly basis, Warntjes and Herbst ogled her and stared at her buttocks when she was sweeping the floor or cleaning other areas and that they made sure that she was aware that they were doing so.
Parada admits that she did not stop taking breaks in the service office or start taking breaks in the break room in the basement, despite the allegedly offensive comments and conduct by Warntjes and Herbst. Parada also admits that she did not ever tell Warntjes or Herbst to stop making comments, or complain to Bye about any actions of Warntjes or Herbst, even though she saw Bye almost every day and knew that Bye had the power to discipline Warntjes and Herbst.
The defendants contend that, in October 2004, GPI managers began to receive complaints from customers specifically about Parada and that, eventually, at least five different customers, including GPI’s most important customers, made complaints, often repeated complaints, about her. The gist of the complaints allegedly was that Parada did not communicate effectively with the customers, did not keep them informed as to the status of their repairs, and did not schedule the work satisfactorily. According to Bye, one customer even refused to speak with Parada again, because of his frustration with her. Parada, however, contends that few, if any, complaints were brought to her attention and that Warntjes admitted that some of the complaints about her were about things that were not her fault. In any event, the defendants contend that, in late February, Warntjes and Bye decided that the position of service writer was not working out, because complaints indicated that customer satisfaction was actually deteriorating, rather than improving. Warntjes and Bye, therefore, decided to discontinue the service writer position and, instead, to offer Parada a diesel technician job, the job for which she had originally applied, at the same rate of pay that she was getting as a service writer.
On March 2, 2005, Parada contends that Warntjes told her that she was “fired” as the service writer, but could continue as a diesel technician at the same rate of pay. The parties agree that Parada turned down the offer to change to a diesel technician position, in whatever manner that offer was presented to her, and that she was, consequently, terminated. Parada denies that customer satisfaction was deteriorating and contends that she was terminated after she complained repeatedly about Holler’s conduct.
B. Procedural Background
On March 18, 2005, Parada filed an administrative complaint against GPI with the Iowa Civil Rights Commission, which was cross-filed with the Equal Employment Opportunity Commission, alleging sex and marital status discrimination based on conduct by Bye, Wartnjes, and Holler, sex and marital status harassment based on conduct of Holler, Warntjes, and Herbst, and unequal pay as compared to Riecks, the night lead person. Parada did not mark the box for “retaliation,” however. See Defendants’ Appendix, Exhibit 20. By letter from counsel dated September 29, 2005, Parada attempted to amend her administrative complaint to include retaliation based on her exercise of her rights to complain to her supervisors about the creation of a sexually hostile environment and subsequent discharge for exercising such rights. Counsel requested that the amendment relate back to the date of the filing of Parada’s original administrative complaint. See Defendants’ Appendix, Exhibit 28. Parada contends that she exhausted the administrative process for all of her claims by receiving right-to-sue letters.
On January 6, 2006, Parada filed her Complaint in this action (docket no. 1), naming as defendants GPI, Bye, Warntjes, and Herbst. In her “First Cause of Action,” Parada alleges “discriminatory actions of the Defendants” in violation of Title VII; in her “Second Cause of Action,” she alleges “discriminatory actions of the Defendants” in violation of the Iowa Civil Rights Act (ICRA); in her “Third Cause of Action,” she alleges “retaliatory actions of the Defendants” in violation of Title VII; in her “Fourth Cause of Action,” she again alleges “retaliatory actions of the Defendants” in violation of Title VII, although she probably meant to allege such actions in violation of the ICRA, and the defendants appear to have understood that to be her claim; and in her “Fifth Cause of Action,” Parada alleges unequal pay, but does not state whether such unequal pay violates federal or state law. As relief, Parada seeks declaratory judgment “that the acts and practices complained of herein are in violation of the Civil Rights Act of 1964, the Iowa Civil Rights Act, and the Equal Pay Act”; back pay, unpaid wages, and actual and compensatory damages; future wages and future compensatory damages; punitive damages; liquidated damages; costs, interest, and attorney fees; and such other relief as is appropriate. Parada also demanded a jury trial. The defendants filed a joint Answer (docket no. 5) on February 27, 2006, then filed an Amended Answer (docket no. 7) on March 20, 2006, then filed a Second Amended Answer (docket no. 14) on August 22, 2006. In its current form, the defendants’ Answer denies Para-da’s claims and asserts various affirmative defenses. Trial in this matter is set to begin on Mary 14, 2007.
On January 11, 2007, however, the defendants filed their Motions [sic] For Summary Judgment (docket no. 19) now before the court, seeking summary judgment on all of Parada’s claims. Parada filed her Resistance To Motion For Summary Judgment (docket no. 23) on February 23, 2007. The defendants then filed a Reply (docket no. 28) on March 9, 2007. On March 29, 2007, the court discovered that Parada had requested oral arguments on the defendants’ Motion For Summary Judgment, although not in the manner required by applicable local rules, and set oral arguments on the defendants’ motion for April 5, 2007. The oral arguments were subsequently rescheduled to April 6, 2007, owing to conflicts in the parties’ schedules.
At the oral arguments, plaintiff Jennifer Jean Parada was represented by Blake Parker of the Blake Parker Law Office in Fort Dodge, Iowa. The defendants were represented by Margaret M. Prahl of Heidman, Redmond, Fredregill, Patterson, Plaza, Dykstra & Prahl, L.L.P., in Sioux City, Iowa. This matter is now fully submitted.
II. LEGAL ANALYSIS
A. Standards For Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure provides that a defending party may move, at any time, for summary judgment in that party’s favor “as to all or any part” of the claims against that party. Fed.R.Civ.P. 56(b). “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). As this court has explained on a number of occasions, applying the standards of Rule 56, the judge’s function at the summary judgment stage of the proceedings is not to weigh the evidence and determine the truth of the matter, but to determine whether there are genuine issues for trial. Bunda v. Potter, 369 F.Supp.2d 1039, 1046 (N.D.Iowa 2005); Steck v. Francis, 365 F.Supp.2d 951, 959-60 (N.D.Iowa 2005); Lorenzen v. GKN Armstrong Wheels, Inc., 345 F.Supp.2d 977, 984 (N.D.Iowa 2004); Nelson v. Long Lines Ltd., 335 F.Supp.2d 944, 954 (N.D.Iowa 2004); Soto v. John Morrell & Co., 315 F.Supp.2d 981, 988 (N.D.Iowa 2004); see also Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir.1996); Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir.1990). In reviewing the record, the court must view all the facts in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences that can be drawn from the facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Quick, 90 F.3d at 1377. Furthermore, “where the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate.” Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1315 (8th Cir.1996) (quoting Crain v. Bd. of Police Comm’rs, 920 F.2d 1402, 1405-06 (8th Cir.1990)).
Procedurally, the moving party bears “the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue.” Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir.1992) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Rose-Maston v. NME Hosps., Inc., 133 F.3d 1104, 1107 (8th Cir.1998); Reed v. Woodruff County, Ark., 7 F.3d 808, 810 (8th Cir.1993). When a moving party has carried its burden under Rule 56(c), the party opposing summary judgment is required under Rule 56(e) to go beyond the pleadings, and by affidavits, or by the “depositions, answers to interrogatories, and admissions on file,” designate “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Rabushka ex. rel. United States v. Crane Co., 122 F.3d 559, 562 (8th Cir.1997); McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 511 (8th Cir.1995); Beyerbach v. Sears, 49 F.3d 1324, 1325 (8th Cir.1995). An issue of material fact is “genuine” if it has a real basis in the record. Hartnagel, 953 F.2d at 394 (citing Matsushita Elec. Indus., 475 U.S. at 586-87, 106 S.Ct. 1348). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment,” i.e., are “material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Beyerbach, 49 F.3d at 1326; Hartnagel, 953 F.2d at 394. If a party fails to make a sufficient showing of an essential element of a claim with respect to which that party has the burden of proof, then the opposing party is “entitled to a judgment as a matter of law.” Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548; In re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 113 F.3d 1484, 1492 (8th Cir.1997). Ultimately, the necessary proof that the nonmoving party must produce is not precisely measurable, but the evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir.1994).
The Eighth Circuit Court of Appeals has cautioned that “summary judgment should seldom be used in employment discrimination cases.” See Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir.1994). This exceptional deference shown the nonmoving party is warranted, according to the Eighth Circuit Court of Appeals, “[b]e-cause discrimination cases often turn on inferences rather than on direct evidence. ...,” E.E.O.C. v. Woodbridge Corp., 263 F.3d 812, 814 (8th Cir.2001) (en banc) (citing Crawford, 37 F.3d at 1341; Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th Cir.1999)), and because “intent” is generally a central issue in employment discrimination cases. Christopher v. Adam’s Mark Hotels, 137 F.3d 1069, 1071 (8th Cir.1998) (citing Gill v. Reorganized Sch. Dist. R-6, Festus, Mo., 32 F.3d 376, 378 (8th Cir.1994)). Nonetheless, this exercise of judicial prudence “cannot and should not be construed to exempt” from summary judgment, employment discrimination cases involving intent. Christopher, 137 F.3d at 1071 (quoting Krenik v. County of Le Sueur, 47 F.3d 953, 959 (8th Cir.1995)). The fact remains that “the ultimate burden of persuading the trier of fact that the defendants intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The court will apply these standards to the defendants’ Motion for Summary Judgment.
However, the court must first observe that stating the legal principles of summary judgment in employment discrimination cases is a simple task. Applying those principles to the paper record that forms the judicial crucible that decides which plaintiffs may proceed to trial and which get dismissed is far more daunting. Missing in the standard incantation of summary judgment principles is the role of experience. Justice Oliver Wendell Holmes wrote, “The life of the law has not been logic; it has been experience.” Oliver Wendell Holmes, The Common Law 1 (1881). Thus, experience teaches that thoughtful deliberation of summary judgment in employment discrimination cases is grounded in the consideration of each case through a lens filtered by the following observations. Employment discrimination and retaliation, except in the rarest cases, is difficult to prove. It is perhaps more difficult to prove such cases today than during the early evolution of federal and state anti-discrimination and anti-retaliation laws. Today’s employers, even those with only a scintilla of sophistication, will neither admit discriminatory or retaliatory intent, nor leave a well-developed trail demonstrating it. See, e.g., Riordan v. Kempiners, 831 F.2d 690, 697-98 (7th Cir.1987). Because adverse employment actions almost always involve a high degree of discretion, and most plaintiffs in employment discrimination cases are at will, it is a simple task for employers to concoct plausible reasons for virtually any adverse employment action ranging from failure to hire to discharge. This is especially true, because the very best workers are seldom employment discrimination plaintiffs due to sheer economics: Because the economic costs to the employer for discrimination are proportional to the caliber of the employee, discrimination against the best employees is the least cost effective. See, e.g., id. Rather, discrimination and retaliation plaintiffs tend to be those average or below-average workers — equally protected by Title VII, the Equal Pay Act, and state anti-discrimination and anti-retaliation laws — for whom plausible rationales for adverse employment actions are readily fabricated by employers with even a meager imagination. See, e.g., id. Consequently, with both the legal standards for summary judgment and the teachings of experience in hand, the court turns to consideration of the parties’ arguments for and against summary judgment.
The court will consider, in turn, whether summary judgment is appropriate on each kind of claim that Parada asserts. The court must first, however, settle questions concerning individual liability.
B. Individual Liability
The individual defendants first seek summary judgment on Parada’s Title VII claims for harassment, discrimination, and retaliation in her First and Third Causes of Action. They contend that the law in this Circuit is well-settled that individuals cannot be held liable under Title VII. Although Parada otherwise resists the defendants’ Motions For Summary Judgment, she concedes that there is no individual liability under Title VII, so that claims under the First and Third Causes of Action should be dismissed as to the individual defendants.
As this court has recently observed,
The Eighth Circuit Court of Appeals has repeatedly held that supervisory employees ... cannot be held individually liable under Title VII. See, e.g., Schoffstall v. Henderson, 223 F.3d 818, 821 n. 2 (8th Cir.2000); Bales v. Wal-Mart Stores, Inc., 143 F.3d 1103, 1111 (8th Cir.1998); Bonomolo-Hagen v. Clay Central-Everly Community Sch. Dist., 121 F.3d 446, 447 (8th Cir.1997); Spencer v. Ripley County State Bank, 123 F.3d 690, 691-92 (8th Cir.1997).... Where supervisory employees cannot be individually liable on Title VII claims, there is no basis whatsoever to name them as defendants on such claims. Therefore, the individual defendants here ... are entitled to dismissal of the Title VII claims against them in [the plaintiffs Complaint],
Habben v. City of Fort Dodge, 472 F.Supp.2d 1142, 1155 (N.D.Iowa 2007). Similarly, here, the individual defendants are entitled to dismissal of the Title VII claims against them, because they cannot be held individually liable on such claims. Id. Therefore, the individual defendants are entitled to summary judgment in then-favor on the Title VII claims in the First and Third Causes of Action of Parada’s Complaint.
In contrast, this court has noted, “It is clear that individual supervisory employees may be held liable for discriminatory employment actions under the ICRA, even though Title VII does not authorize such a claim.” Habben, 472 F.Supp.2d at 1156 (emphasis in the original) (citing Vivian v. Madison, 601 N.W.2d 872, 873 (Iowa 1999)). Therefore, the court will continue to refer to the arguments of all defendants on Parada’s sexual harassment, sexual discrimination, and retaliation claims, because those claims are also brought pursuant to the ICRA.
C. Sexual Harassment
In her First and Second Causes of Action, Parada alleges “discriminatory actions of the Defendants” in violation of Title VII and the ICRA, respectively. It appears from both Parada’s administrative complaint and her Resistance to the defendants’ Motions For Summary Judgment that she asserts that the “discriminatory actions” in question constituted both “sexual harassment” and “disparate treatment.” It is equally clear from their motion for summary judgment that the defendants have understood Parada’s “sexual discrimination” claims to include “sexual harassment” claims. Therefore, the court will consider the “sexual harassment” portion of Parada’s First and Second Causes Of Action separately from the “disparate treatment” portion of those claims. Analysis of the “sexual harassment” portion of Parada’s claims begins with the arguments of the parties. The arguments of the parties concerning the sexual harassment claims at the oral arguments differed considerably from — not just “clarified” — the arguments presented in their briefs. The court has taken the parties’ oral arguments as the “final word” on what they are alleging or arguing in this case, where there is a difference between their oral arguments and their written arguments.
1. Arguments of the parties
a. The defendants’ initial argument
In their initial brief in support of their motion for summary judgment, the defendants contended that the comments attributed to Warntjes and Herbst, if made, which they deny, were not objectively offensive or sufficiently severe or pervasive to be actionable. They pointed out that none of the conduct by Warntjes or Herbst (or for that matter, Holler) allegedly involved touching, an implication that any individual wanted to have sex with her, or a suggestion that Parada could improve her situation by having sex with them. They also argued that Parada has not alleged that she was called derogatory names or subjected to lewd and lascivious actions, gestures, or conversations. Indeed, they pointed out that Parada did not even tell Warntjes or Herbst to stop their conduct or complain about their conduct to Bye, nor did she stop taking breaks in the service office, all of which they contend undermines Parada’s assertions of severity and unwelcomeness of the conduct in question.
In their brief, the defendants also contended (or at least, the court read their brief to contend) that Holler’s behavior does not come within the ambit of recovery under Title VII or the ICRA, because Holler was Parada’s subordinate and, as such, could not harass her as a matter of law, even if his conduct was sufficiently severe or offensive, which they deny. They contended, further, that Parada has admitted that Holler’s comments and conduct were not sexual or impliedly sexual and that she never complained about Holler’s conduct as sexual harassment. Thus, they contended that Parada has admitted that Holler’s conduct was not sexual harassment.
b. Parada’s response
Parada argued in her brief that the harassment by Warntjes and Herbst was harassment by supervisors that was “totally sexual.” She also contended that the environment that their comments created was both objectively and subjectively hostile. She contended that the harassment was the more hostile and offensive, because it was done by supervisors and, in the totality of the circumstances, it demonstrated the harassers’ bigotry, their power to make her embarrassed and uncomfortable, and their power and desire to make her know her place in the organization. Parada contended that the court must accept as true her contention that conduct by Warntjes and Herbst was also unwelcome and that she subjectively found it to be hostile.
As to harassment by Holler, whom Par-ada identifies as a co-worker, Parada argued in her brief that even conduct that is not overtly sex-based can, nevertheless, constitute sexual harassment, if the conduct was done because the victim was female, and that is the situation here as to Holler’s conduct. She contended that, at the very least, the record generates a genuine issue of material fact as to whether Holler’s disrespectful conduct was directed at her because she was the lone female in the service area and because of his resentment towards a female in a supervisory role. She also contended that Holler used a sex-based epithet, bitch, toward her, and even used physically threatening behavior and verbal threats of physical violence. She also contended that Holler’s conduct created or contributed to an oppressive work environment. Moreover, she contended that such conduct was unwelcome, because she complained about it constantly to her supervisors. Finally, she contended that GPI and her supervisors certainly knew of Holler’s conduct, because she complained about it frequently, but they did nothing effective to end or prevent such conduct.
c. The defendants’reply
In their Reply in further support of this part of their motion for summary judgment, the defendants argued that Parada has admitted that nothing Holler did or said was sexual harassment and that, during her deposition, her attorney stated that the Complaint was in error when it alleged that Holler’s conduct was “sex harassment” because it should have said “sex discrimination.” Therefore, the defendants requested summary judgment in their favor on any claim of sexual harassment relating to Holler, based on Parada’s admissions and those of her counsel. The defendants also reiterated (or at least the court understood them to reiterate) that the claim fails as to Holler, because his conduct was not based on sex and because he was Parada’s subordinate. They also argued that Holler’s conduct clearly arose from his resistance to following the directives of a person whom he considered less qualified than he was, so that no reasonable jury could conclude that Holler’s conduct was based on sex. They contended that Parada has only secondhand knowledge of Holler calling her a bitch, because she did not hear him call her that, and only secondhand knowledge that Holler had accused another employee of having a relationship with Parada, which she considered harassment, because she only learned of that accusation from the other employee, not from Holler. The defendants apparently suggested that conduct of which Parada had only secondhand knowledge could not be harassing. The defendants also contended that the record here is devoid of evidence that Holler made any comments or engaged in any conduct about which Parada complains because she was a woman and there are no comments suggesting that Holler thought Parada’s job was not a “woman’s job” or that women had no place in the workplace. They contended that the “tone of bigotry,” on which Parada relies, is not supported by any evidence in the record. Finally, the defendants reiterated that Holler was Par-ada’s subordinate, not a co-worker or supervisor, so that the logic of this court’s reasoning, in a decision in a prior case, that the status of the harasser matters to the severity of the harassment suggests that Holler’s conduct was not sufficiently severe to be actionable.
The defendants did not reply to Parada’s arguments concerning sufficiency of the evidence of harassment by Warntjes and Herbst to generate jury questions.
d. The parties’ oral arguments
As mentioned above, the parties’ oral arguments concerning whether or not Holler sexually harassed Parada were either quite different from their written arguments or, at least, were quite different from what the court had understood the parties to be arguing in their briefs. Therefore, the court will also summarize the parties’ oral arguments on the sexual harassment claim.
In the course of oral arguments, the court took defendants’ counsel to task on what the court had taken to be the defendants’ assertion that only someone in higher authority has the power to sexually harass someone. In response, defendants’ counsel asserted that she was trying to make a distinction between sexual harassment by a subordinate and sexual discrimination by a subordinate, and to argue that the latter is not possible, because a subordinate has no power to affect a term of the alleged victim’s employment. Similarly, when the court stated that it had understood the defendants to argue in their briefs that, as a matter of law, Holler could not have engaged in sexual harassment of a supervisor because he was a subordinate, defendants’ counsel expressly stated that she “didn’t mean to say that.” Instead, defendant’s counsel explained as follows:
[DEFENDANTS’ COUNSEL:] I intended to make the distinction between sex discrimination and sex harassment, and I understand that sexual harassment is a form of discrimination. But yes, I do not intend to argue that a coworker or a subordinate can’t harass someone. But without power to- affect her employment, he cannot discriminate against her. He cannot—
THE COURT: Because he doesn’t have any power over a term and condition of employment.
[DEFENDANTS’ COUNSEL]: Yes.
Realtime Transcript of Oral Arguments on April 6, 2007.
Parada’s counsel also attempted to clarify precisely what Parada is alleging with regard to the conduct of Shawn Holler. Counsel stated the following:
[PLAINTIFF’S COUNSEL:] Let me try and explain the Shawn Holler situation. The pleadings did say sex harassment. That was a mistake that I made. It should have been just sex discrimination. The complaint with Shawn Holler—
THE COURT: And you corrected that at the deposition, didn’t you?
[PLAINTIFF’S COUNSEL]: Yes.
THE COURT: Why didn’t you go ahead and then amend your pleadings to correct that?
[PLAINTIFF’S COUNSEL]: Good question, Judge. It should be reflected in the pleadings that it’s sex discrimination. It should be there in the pleadings.
The claim with Shawn Holler, though, is a retaliation claim. It’s not a sex discrimination complaint about Shawn Holler. It’s what happened with respect to Shawn Holler. When Ms. Parada began to make her complaints about what Shawn Holler was doing to her— and she believes and perceives that that was all based on the fact that he was a man, she was a woman, and he refused to work for her — she began to make those complaints to her supervisors, and the result is she was discharged for it. So that aspect of the case is a retaliation complaint....
Realtime Transcript of Oral Arguments on April 6, 2007. In light of Parada’s counsel’s representations at oral arguments, the court must conclude that Parada is not now alleging that conduct of Shawn Holler was, itself, either actionable sexual harassment or actionable sexual discrimination, but was, instead, only the basis for Para-da’s retaliation claim.
More specifically still, Parada’s sexual harassment claim, as it now stands, is based only on the conduct of Warntjes and Herbst, her supervisors, and the court will not reach the interesting question of whether an employee can be sexually harassed by someone who is nominally that employee’s subordinate.
2. Analysis
a. Elements of the claim
Title VII prohibits an employer from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of ... sex.” 42 U.S.C. § 2000e-2(a)(l). As the Eighth Circuit Court of Appeals has explained, “[Discrimination based on sex that creates a hostile or abusive work environment violates Title VII.” Nitsche v. CEO of Osage Valley Elec. Co-op., 446 F.3d 841, 845 (8th Cir.2006) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), and Quick v. Donaldson Co., 90 F.3d 1372, 1377 (8th Cir.1996)).
The elements of a claim of hostile environment sexual harassment differ somewhat, depending upon whether the alleged harasser is a co-worker or a supervisor. Cheshewalla v. Rand & Son Constr. Co., 415 F.3d 847, 850 (8th Cir.2005). To prove such a claim based on harassment by a co-worker, the plaintiff must prove the following: (1) that she belongs to a protected group; (2) that she was subjected to unwelcome harassment; (3) that the harassment was based on sex; (4) that the harassment affected a term, condition, or privilege of employment; and (5) that the employer knew or should have known of the harassment and failed to take proper remedial action. See, e.g., Nitsche, 446 F.3d at 845 (describing these as the elements of a prima facie case of hostile work environment sexual harassment by a coworker); Cheshewalla, 415 F.3d at 850. When the harassment is by a supervisor, however, the plaintiff must prove the first four elements listed above, and if she also proves that the harassment resulted in a tangible, employment action, then the employer is vicariously liable for the supervisor’s harassment. Gordon v. Shafer Contracting Co., Inc., 469 F.3d 1191, 1194-95 (8th Cir.2006) (describing the first four elements as the “common” elements for supervisor and co-worker harassment claims); Cheshewalla, 415 F.3d at 850. If she does not prove that the supervisor’s harassment resulted in a tangible employment action, then the employer may escape vicarious liability by proving the following elements of the Ellerth/Faragher affirmative defense: (1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. See Gordon, 469 F.3d at 1195 (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Faragher v. Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)); Cottrill v. MFA Inc., 443 F.3d 629, 634 n. 2 (8th Cir.2006); Cheshewalla, 415 F.3d at 850-51.
b. Harassment by Warntjes and Herbst
For the reasons explained above, Parada’s sexual harassment claim is now based exclusively on the conduct of two of her supervisors, Warntjes and Herbst. The court finds that the defendants’ motion for summary judgment on this claim puts at issue only some of the common elements of a sexual harassment claim, whether that claim is based on sexual harassment by a co-worker or a supervisor. Specifically, the defendants have moved for summary judgment on Parada’s sexual harassment claim based on the conduct of Warntjes and Herbst on the grounds that their conduct was not “unwelcome” nor sufficiently “severe.” See Gordon, 469 F.3d at 1194-95 (second and fourth elements of a supervisor harassment claim); Cheshewalla, 415 F.3d at 850 (same). The court will consider in turn the challenged elements of Parada’s claim of sexual harassment by her supervisors.
i. “Unwelcome” harassment. “Unwelcomeness” of the alleged sexual harassment is the second element of a sexual harassment claim, whether based on the conduct of a co-worker or a supervisor. See Nitsche, 446 F.3d at 845 (coworker harassment); Cheshewalla, 415 F.3d at 850 (supervisor harassment). Indeed, the “unwelcomeness” of the alleged sexual harassment is “ ‘[t]he gravamen of any sexual harassment claim.’ ” Wilson v. City of Des Moines, 442 F.3d 637, 643 (8th Cir.2006) (quoting Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 68, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). “In determining whether conduct is “unwelcome,” [courts] should consider whether the plaintiff indicated, by her conduct, that the alleged harassment was unwelcome.” Hocevar v. Purdue Frederick Co., 223 F.3d 721, 728-29 (8th Cir.2000). Whether the allegedly harassing conduct was “unwelcome” is generally a question of fact for the jury, however, because it “turns largely on credibility determinations.” Id. at 729.
The defendants point out that Parada did not tell Warntjes or Herbst to stop their conduct or complain about their conduct to Bye, nor did she stop taking breaks in the service office. Parada’s failure to do any of these things, they contend, undermines her assertions of “unwel-comeness” of the condúct in question (and, they contend, also undermines any inference of the “severity” of that conduct, as well). The court agrees that there is no evidence that- Parada ever complained to anyone about conduct by Warntjes or Herbst. The court finds, further, that the weakness of the record on the “unwel-comeness” element is emphasized by evidence that Parada certainly knew how to complain and to whom when she was upset by Holler’s conduct; evidence that she also knew that Bye, who had responded to her complaints about Holler, could discipline Warntjes and Herbst; evidence that she 'acknowledges that she found Bye approachable; and evidence that she saw Bye almost daily. Thus, because the question on this element is “whether the plaintiff indicated, by her conduct, that the alleged harassment was unwelcome,” Hocevar, 223 F.3d at 728-29, Parada’s conduct does little to indicate that the alleged harassment was “unwelcome.”
Moreover, there can be little refuge in the general principle that “unwelcomeness” is a question of fact for the jury, see id. at 729, or in the further contention that the court must accept as true Parada’s contention that conduct by Warntjes and Herbst was unwelcome, if there is no evidence giving rise to a genuine issue of material fact that the conduct was “unwelcome.” See Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348 (on a Rule 56 motion for summary judgment, the court must view all the facts in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences that can be drawn from the facts, as demonstrated by or genuinely in dispute on record evidence); and compare Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (on a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), the court must assume that all facts alleged by the complaining party are true, and must liberally construe those allegations).
Parada asserted at oral arguments that the Supreme Court’s decisions in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), stand for the proposition that she was not required to complain about harassment by supervisors to establish her claim. She also contended, in her brief, that the harassment by Warntjes and Herbst led to her termination, which she contends is a “tangible employment action” sufficient to impose liability on GPI for the supervisors’ harassment under Ellerth and Faragher, without regard to whether or not she complained about that conduct. There may be some merit to Parada’s contention that she was not required to complain about harassment by supervisors to establish the basis for employer liability, at least if the harassment resulted in a “tangible employment action.” See, e.g., Gordon, 469 F.3d at 1194-95 (when harassment is by a supervisor, the plaintiff must prove the first four elements common to co-worker and supervisor harassment claims, and if she also proves that the harassment resulted in a “tangible employment action,” then the employer is vicariously liable for the supervisor’s harassment, citing Ellerth and Faragher; the employee is not required to prove that the employer knew of the alleged harassment and failed to take prompt remedial action, as required to establish employer liability for co-worker harassment). However, that standard for vicarious liability of the employer for supervisor harassment does not mean that a reasonable jury could not infer from Para-da’s failure to complain to anyone about alleged sexual harassment by her supervisors that the harassment was neither “unwelcome” nor “severe.” The questions raised here, on the defendants’ motion for summary judgment on Parada’s sexual harassment claim, are precisely whether Parada’s failure to complain to anyone about the alleged sexual harassment by her supervisors shows, beyond dispute, that the conduct in question was not “unwelcome” or “severe” enough to be actionable.
Parada does rely on more than the factual nature of the “unwelcomeness” element, the court’s supposed duty to accept her allegations as true, and the lack of any requirement that she complain about the harassment to support her contention that the “unwelcomeness” element is a jury question in this case. She also points to evidence that Bye failed to do anything effective to stop objectionable conduct by Holler. Although the inferences are, perhaps, tenuous, the court finds that there are inferences that Parada’s failure to complain to Bye about a hostile work environment allegedly created by Warntjes and Herbst was excused by Bye’s failure to deal effectively with Holler’s conduct, because that failure arguably created and condoned objectionable treatment towards Parada, which may have left Parada with a reasonable belief that complaints by a female employee about objectionable conduct by male employees at GPI were futile. Cf. Delph v. Dr. Pepper Bottling Co., 130 F.3d 349, 356 & n. 5 (8th Cir.1997) (a plaintiffs failure to complain to supervisors about a hostile work environment was excused where the supervisors created and condoned the objectionable atmosphere). The court is not without substantial sympathy for the defendants’ argument on this element, but the court, nevertheless, declines to grant summary judgment on Parada’s sexual harassment claim on the ground that Parada failed to show that the conduct in question was “unwelcome” where reasonable inferences in Parada’s favor are possible. See Woodbridge Corp., 263 F.3d at 814 (on summary judgment in discrimination cases, exceptional deference to the nonmoving party is warranted, “[bjecause discrimination cases often turn on inferences rather than on direct evidence .... ”).
ii. “Severe” harassment. The court is less uneasy about declining to grant summary judgment on Parada’s claim of harassment by her supervisors on the “severity” element. See Gordon, 469 F.3d at 1194-95 (the fourth element of a supervisor harassment claim is that the harassment was sufficiently severe or pervasive); Cheshewalla, 415 F.3d at 850 (same). As to this element, the Eighth Circuit Court of Appeals has explained that “[h]arassment affects a term, condition, or privilege of employment if it is ‘sufficiently severe or pervasive to alter the conditions of the victims employment and create an abusive working environment.’ ” Howard v. Burns Bros., Inc., 149 F.3d 835, 840 (8th Cir.1998) (quoting Harris, 510 U.S. at 21, 114 S.Ct. 367); see also Nitsche, 446 F.3d at 845 (quoting Howard). “A hostile environment exists when ‘the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ ” Gordon, 469 F.3d at 1194 (quoting Palesch v. Missouri Comm’n on Human Rights, 233 F.3d 560, 566 (8th Cir.2000), in turn quoting Harris, 510 U.S. at 21, 114 S.Ct. 367).
More specifically,
[The plaintiff] must clear a high threshold to demonstrate actionable harm, for “complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing” obtain no remedy. See Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (internal quotation omitted). “[A] sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Id. at 787, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (citation omitted). To be actionable, the conduct complained of must be extreme in nature and not merely rude or unpleasant. LeGrand, 394 F.3d at 1101 (citation omitted). Allegations of a few isolated or sporadic