Gavin v. Rogers Tech. Servs.

that the Bank’s deed of trust had priority over the notice of
commencement and therefore over the construction liens of
Borrenpohl and Bartels. Finding no merit to the appeal and
cross-appeal, we affirm the decision of the district court.
A ffirmed .
JAmie GAvin , AppellAnt , v . roGers
technicAl services , inc ., Appellee .
755 N.W.2d 47
Filed August 22, 2008. 	No. S-07-465.
1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
2. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently of the conclusions
reached by the trial court.
3. Summary Judgment. Summary judgment is proper when the pleadings and evi-
dence admitted at the hearing disclose no genuine issue as to any material fact or as
to the ultimate inferences that may be drawn from those facts and that the moving
party is entitled to judgment as a matter of law.
4. Employer and Employee: Discrimination. To constitute a hostile work environ-
ment, harassment must be sufficiently severe or pervasive to alter the conditions of
the victim’s employment and create an abusive working environment.
5. ____: ____. Courts examine the totality of the circumstances to determine whether
there is a hostile work environment, considering the frequency of the behavior, its
severity, whether physical threats are involved, and whether the behavior unreason-
ably interfered with the employee’s work performance.
6. Employer and Employee: Discrimination: Proof. To make a prima facie case for
a hostile work environment based on sexual harassment, the plaintiff must show
that (1) she belongs to a protected group; (2) she was subject to unwelcome harass-
ment; (3) the sexual harassment was based on sex; (4) the harassment affected a
term, condition, or privilege of her employment; and (5) the employer knew or
should have known of the harassment and failed to take proper remedial action.
7. Employer and Employee: Discrimination: Words and Phrases. Conduct is
considered “unwelcome” when the employee did not solicit or invite it and the
employee regarded the conduct as undesirable or offensive.
8. Employer and Employee: Discrimination. For sexual harassment to be action-
able, the work 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.
gAvIN v. rogerS TeCh. ServS. 	437
Cite as 276 Neb. 437
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

9. ____: ____. Whether workplace harassment is severe, pervasive, and objectively
offensive is a question of fact.
10. Appeal and Error. An appellate court may, at its discretion, discuss issues unnec-
essary to the disposition of an appeal where those issues are likely to recur during
further proceedings.
11. Employer and Employee: Discrimination: Words and Phrases. Constructive
discharge occurs when an employer deliberately renders the employee’s working
conditions intolerable, thereby forcing her to quit.
12. Employer and Employee: Discrimination: Proof. To prove constructive dis-
charge, a plaintiff must demonstrate that (1) a reasonable person in her situation
would find the working conditions intolerable and (2) the employer intended to
force the employee to quit.
13. Employer and Employee: Discrimination. In a constructive discharge cause of
action, the element of intending to force the employee to quit is satisfied if the
employer could have reasonably foreseen that the employee would quit as a result
of its actions.
14. ____: ____. An employee who quits without giving her employer a reasonable
chance to work out a problem has not been constructively discharged.
Appeal 	from 	the 	District 	Court 	for 	Lancaster 	County:
J ohn A. colborn, Judge. reversed and remanded for further
proceedings.
Kathleen M. Neary, of vincent M. Powers & Associates, for
appellant.
Sean J. Brennan, of Brennan & Nielsen Law offices, P.C.,
for appellee.
heAvicAn, 	C.J., 	W riGht, 	connolly, 	G errArd, 	stephAn,
mccormAck, and miller -lermAn, JJ.
mccormAck, J.
NATUre oF CASe
This case presents an appeal from a summary judgment
entered against appellant, Jamie gavin, in a suit involving alleged
sexual harassment by gavin’s supervisor. gavin alleged that the
harassment resulted in a hostile work environment and her con-
structive discharge. In granting the employer’s motion for sum-
mary judgment, the district court determined that gavin failed
to make a prima facie case that her working conditions were so
intolerable that a reasonable person would have felt compelled
to resign. We reverse the judgment of the district court, because
438 	276 NeBrASKA rePorTS

we find genuine issues of material fact as to both the hostile
work environment and constructive discharge claims.
BACKgroUND
In April 2005, gavin was hired by rogers Technical Services,
Inc. (rTSI), as a business manager and assistant to William
Keith rogers, president of rTSI. gavin was scheduled to begin
work at 7 a.m. on Monday, Wednesday, and Friday and at 8 a.m.
on Saturday. Typically, gavin would report to work at rogers’
apartment. gavin was expected to let herself into the apartment
with a key rogers gave to her and go to an office located in a
second bedroom. She typically worked in the apartment office
for a short time before she and rogers went out to breakfast.
They would then travel to rTSI’s manufacturing facilities in
Friend, Nebraska, where they would work most of the rest of
the day.
rogers and gavin always traveled to the Friend facilities
together, and rogers always paid for the breakfasts, which gavin
called a “welcomed benefit.” rogers told gavin that he wanted
her to travel with him between Lincoln, Nebraska, and Friend
because “he gets tired.” Additionally, rogers has diabetes and he
trained gavin how to provide him with an insulin injection if he
became incapacitated. At the end of the day, after returning from
Friend, gavin and rogers would sometimes continue to work at
rogers’ apartment. gavin would usually go home “[b]etween
six and eight.”
Two or three days after gavin began working for rTSI, she
began feeling uncomfortable around rogers. gavin testified
in her deposition that rogers began “making inappropriate
sexual comments” and “telling inappropriate sexual stories on
a daily basis.” gavin further explained that their conversations
“[a]lways had a sexual overtone, if they weren’t outright about
sex.” on “several occasions [rogers] would make the comment
that nobody is hornier than he is.” rogers would also “always
bring up . . . this hot blond . . . [f]rom his past.”
on one occasion, rogers told gavin about a pool party where
the wife of rogers’ former employer “had gotten this one hot
blond to take him into the bathroom” to have oral sex. When
rogers started to describe the details of this encounter, gavin
gAvIN v. rogerS TeCh. ServS. 	439
Cite as 276 Neb. 437

“stopped the conversation” and told rogers she was not com-
fortable hearing the story about the pool party. She told rogers,
“‘Maybe I’m the only person left in this world with morals, but
I think [it’s] not right’” to talk that way.
gavin testified further, “[rogers] kept asking me questions
about myself. At first I would just blow them off and then he
kept asking me and prying into my personal life . . . . [h]e
always had to be near me.” According to gavin, rogers once
told her about swelling in his testicles after deep sea diving.
rogers then explained to gavin that the two of them “needed
to be able to talk about personal things like this.” When rogers
repeated that they needed to “be more open with each other,”
gavin “kind of felt the need to share.” So she told rogers, “I
don’t really have anything wrong with me except I have a fibroid
tumor.” gavin thinks she may have specified that the tumor was
on her uterus.
on another occasion, rogers asked gavin about her boyfriend
and how he treated her. After gavin explained to rogers that
her boyfriend had been unfaithful, rogers commented, “Well,
you’re a hot girl, and if you were my girl, I’d treat you much
better than him.” At one point, gavin told rogers that she did
not “like to hear about sexual things” and that she “didn’t like
being hit on and . . . didn’t like being called a hot girl.” In
response to this comment, “[rogers] got really upset and he said
there was something wrong with me because . . . I didn’t like
being hit on and I didn’t like being called a hot girl.” gavin also
testified that on two occasions, she “told [rogers] to stop the
conversation, that it was disgusting,” and that she did not “like
talking about sex.”
gavin testified that she felt especially uncomfortable because
rTSI’s office was in rogers’ apartment. gavin had suggested
to rogers that it would be more efficient to move the apart-
ment office to empty space at the facility in Friend, but rogers
did not seem amenable to the idea. on the last Saturday gavin
worked for rTSI, she went to rogers’ apartment as usual at 8
a.m., knocked at the door, and unlocked the door with the key
rogers had given to her. When gavin walked down the hallway
toward the office, she saw rogers sitting at his computer view-
ing “a scantily clad blond woman in neon.” gavin could only
440 	276 NeBrASKA rePorTS

see that rogers was wearing a T-shirt and socks. She could not
tell for certain if rogers was wearing any underwear or shorts,
but he did not appear to be. gavin stood there for a moment
and then turned around and went home. rogers never acknowl-
edged gavin’s presence, and rogers and gavin did not discuss
the incident.
on Monday, gavin returned to work. gavin explained that
she was nervous and upset about the incident on Saturday and
that she thought rogers would want to have a conversation
about the incident. gavin arrived at rogers’ apartment at 7:15
a.m. gavin “knocked loudly” twice at the door, used the key to
open the door, and called out “hey” after opening the door. As
she walked toward the office, gavin saw rogers sleeping in a
chair in the living room wearing what looked like only a pair
of boxer shorts. The television was blaring loudly, and rogers
did not respond to gavin’s greeting. gavin felt uncomfortable
and left. gavin never returned to work or communicated with
rogers again.
on cross-examination, gavin admitted that rogers never
asked her to have sex with him, never asked to view any intimate
part of her body, never asked her to let him touch her inappro-
priately, never specifically discussed her breasts or any other
body parts, and never touched her inappropriately. gavin admit-
ted she told rogers on only two occasions, during the 3 weeks
she worked for him, that she did not want to talk about sexual
subjects. During the second week that gavin worked at rTSI,
gavin also told a rTSI manager that rogers “tells a lot of sto-
ries and [that] it kind of made [her] uncomfortable.” however,
she “didn’t specify and [the rTSI manager] didn’t ask” her to
elaborate about the topic of those “stories.” gavin did not make
any other complaints to anyone else in the company.
on the basis of these facts, gavin brought suit against rTSI,
alleging sexual harassment and constructive discharge in viola-
tion of title vII of the Civil rights Act of 1964 (Title vII).1 rTSI
moved for summary judgment. The district court determined that
gavin had not pled a prima facie case for hostile work environ-
ment or constructive discharge. The court observed that rogers’
1 42 U.S.C. § 2000(e) et seq. (2000 & Supp. v 2005).
gAvIN v. rogerS TeCh. ServS. 	441
Cite as 276 Neb. 437

behavior was “chauvinistic, unprofessional, and immature,” but
that such conduct was not directed at gavin and was not suf-
ficient to support a hostile work environment claim. The court
also noted that there was no evidence that rogers intended to
force gavin to quit or that he should reasonably have foreseen
that she would quit as a consequence of his conduct.
ASSIgNMeNTS oF error
gavin assigns, consolidated and restated, that the district
court erred in sustaining rTSI’s motion for summary judgment
because (1) genuine issues of material fact were in dispute and
(2) rTSI was not entitled to judgment as a matter of law.
STANDArD oF revIeW
[1] In reviewing a summary judgment, an appellate court
views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit
of all reasonable inferences deducible from the evidence.2
[2] When reviewing questions of law, an appellate court has
an obligation to resolve the questions independently of the con-
clusions reached by the trial court.3
ANALYSIS
[3] on appeal, gavin argues that the district court erred in
granting summary judgment to rTSI because there are genuine
issues of material fact regarding her claims of hostile work
environment and constructive discharge. Summary judgment is
proper when the pleadings and evidence admitted at the hearing
disclose no genuine issue as to any material fact or as to the
ultimate inferences that may be drawn from those facts and that
the moving party is entitled to judgment as a matter of law.4 We
turn first to the hostile work environment claim.
2 Alston v. Hormel Foods Corp., 273 Neb. 422, 730 N.W.2d 376 (2007).
3 Coffey v. County of Otoe, 274 Neb. 796, 743 N.W.2d 632 (2008).
4 Nebraska Coalition for Ed. Equity v. Heineman, 273 Neb. 531, 731 N.W.2d
164 (2007).
442 	276 NeBrASKA rePorTS

hostile W ork environment
Title vII prohibits employers from discriminating against an
employee based on the employee’s sex.5 Sexual harassment is a
form of sex discrimination prohibited by Title vII.6 Two theories
of sexual harassment have been recognized by the courts: “quid
pro quo” and “hostile work environment” harassment. Those
cases in which the plaintiff claims that a tangible employment
action resulted from a refusal to submit to a supervisor’s sexual
demands are generally referred to as “quid pro quo” cases.7
These are distinguished from cases based on “bothersome atten-
tions or sexual remarks that are sufficiently severe or pervasive
to create a hostile work environment.”8 here, we consider only
hostile work environment sexual harassment.
[4-6] To constitute a hostile work environment, harassment
must be sufficiently severe or pervasive to alter the conditions
of the victim’s employment and create an abusive working envi-
ronment.9 Courts examine the totality of the circumstances to
determine whether there is a hostile work environment, consid-
ering the frequency of the behavior, its severity, whether physi-
cal threats are involved, and whether the behavior unreasonably
interfered with the employee’s work performance.10 To make a
prima facie case for a hostile work environment based on sexual
harassment, the plaintiff must show that (1) she belongs to a
protected group; (2) she was subject to unwelcome harassment;
(3) the sexual harassment was based on sex; (4) the harassment
affected a term, condition, or privilege of her employment; and
5 42 U.S.C. § 2000e-2(a)(1).
6 See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257,
141 L. ed. 2d 633 (1998).
7 Id.
8 Id. at 751.
9 Pennsylvania State Police v. Suders, 542 U.S. 129, 124 S. Ct. 2342, 159 L.
ed. 2d 204 (2004); Brenneman v. Famous Dave’s of America, Inc., 507 F.3d
1139 (8th Cir. 2007); Gordon v. Shafer Contracting Co., Inc., 469 F.3d 1191
(8th Cir. 2006).
10 Brenneman v. Famous Dave’s of America, Inc., supra note 9; Nitsche v.
CEO of Osage Valley Elec. Co-op., 446 F.3d 841 (8th Cir. 2006); Henthorn
v. Capitol Communications, Inc., 359 F.3d 1021 (8th Cir. 2004).
gAvIN v. rogerS TeCh. ServS. 	443
Cite as 276 Neb. 437

(5) the employer knew or should have known of the harassment
and failed to take proper remedial action.11
[7] The record, taken in the light most favorable to gavin,
indicates that she established the five elements of a prima facie
case of hostile work environment. First, as a female, gavin
belongs to a protected group.12 Second, there is evidence that
gavin was subjected to unwelcome sexual harassment. Conduct
is considered “unwelcome” when the employee did not solicit or
invite it and the employee regarded the conduct as undesirable
or offensive.13 In this case, gavin described numerous sexually
explicit comments rogers made to gavin during her employ-
ment at rTSI which she considered offensive. rTSI does not
argue that gavin, in any way, solicited or invited these remarks.
In fact, gavin testified that she had told rogers that she did not
“like to hear about sexual things,” “didn’t like being hit on,”
and “didn’t like being called a hot girl.” Finally, on one of her
last days at work, gavin was presented with the disturbing and
uninvited scene of rogers, apparently without pants, viewing a
“scantily clad blond woman” on his office computer.
The record also discloses sufficient evidence of the third
element, that the sexual harassment was based on gavin’s sex.
While alleged sexual harassment need not be explicitly sexual
in nature,14 the record is replete with plainly sexual behavior
directed at gavin, including rogers’ comments to gavin about
oral sex, the swelling of his genitals, and gavin’s physical
appearance, as well as his aforementioned viewing of a “scantily
clad blond woman” on an office computer during normal work-
ing hours. rogers’ conduct carries with it clear sexual overtones
and permits an inference of gender-based harassment. A trier of
fact could reasonably find that the harassment, because of its
sexual nature, was based on gavin’s sex.
[8,9] The fourth element of gavin’s prima facie claim of
hostile work environment sexual harassment requires that the
11 See, e.g., Stuart v. General Motors Corp., 217 F.3d 621 (8th Cir. 2000).
12 See Lincoln County Sheriff’s Office v. Horne, 228 Neb. 473, 423 N.W.2d
412 (1988).
13 See, e.g., Moylan v. Maries County, 792 F.2d 746 (8th Cir. 1986).
14 Smith v. St. Louis University, 109 F.3d 1261 (8th Cir. 1997).
444 	276 NeBrASKA rePorTS

harassment affected a term, condition, or privilege of her employ-
ment. For sexual harassment to be actionable, it must be suffi-
ciently severe and pervasive to alter the conditions of the vic-
tim’s employment and create an abusive working environment.15
Isolated or trivial incidents generally will not be sufficient.16
Considering the totality of the circumstances, the work environ-
ment 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.17 Whether workplace
harassment is severe, pervasive, and objectively offensive is a
question of fact.18
The record here discloses that gavin was subjected to acts of
sexual harassment over her 3-week tenure at rTSI. gavin found
these incidents upsetting and testified that she was offended by
rogers’ inappropriate and sexually explicit comments. There
was sufficient evidence of improper conduct to present to the
trier of fact the question of whether the alleged harassment
affected a term, condition, or privilege of employment.
The final element of a prima facie case for hostile work
environment is that the employer knew or should have known
of the harassment and failed to take proper remedial action. In
this case, there is no dispute that rogers was gavin’s supervi-
sor as well as the “the corporate officer and/or majority share-
holder and/or president” of rTSI at the time the alleged conduct
occurred. Therefore, what rogers knew or should have known
is attributable to rTSI. When harassment is committed by an
employer-owner, there is no difficulty with finding liability
under Title vII, because the person perpetrating the harassment
15 See Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L. ed.
2d 49 (1986).
16 See Moylan v. Maries County, supra note 13.
17 Faragher v. Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 141 L. ed. 2d 662
(1998); Delph v. Dr. Pepper Bottling Co. of Paragould, Inc., 130 F.3d 349
(8th Cir. 1997).
18 Chancellor v. Pottsgrove School Dist., 529 F. Supp. 2d 571 (e.D. Pa. 2008).
See, also, O’Shea v. Yellow Technology Services, Inc., 185 F.3d 1093 (10th
Cir. 1999) (noting that severity and persuasiveness evaluation is particularly
unsuited for summary judgment because it is quintessentially question
of fact).
gAvIN v. rogerS TeCh. ServS. 	445
Cite as 276 Neb. 437

is the employer.19 As already discussed, twice gavin told rogers
that she considered the topics of rogers’ conversation and his
comments about her to be unwelcome and sexually offensive.
Therefore, gavin has made a prima facie case that rTSI knew
or should have known of the harassment and failed to take
remedial action.
[10] having considered the five elements of a prima facie
case for a hostile work environment sexual harassment claim,
we conclude that gavin produced sufficient evidence to present
her claim to the trier of fact. We determine, therefore, that the
district court erred in granting rTSI’s motion for summary judg-
ment as to the hostile work environment claim. We turn now to
whether the court was correct in granting summary judgment
on gavin’s claim of constructive discharge. An appellate court
may, at its discretion, discuss issues unnecessary to the disposi-
tion of an appeal where those issues are likely to recur during
further proceedings.20
constructive dischArGe
[11-14] Constructive discharge occurs when an employer
deliberately renders the employee’s working conditions intoler-
able, thereby forcing her to quit.21 To prove constructive dis-
charge, a plaintiff must demonstrate that (1) a reasonable person
in her situation would find the working conditions intolerable
and (2) the employer intended to force the employee to quit.22
The element of intending to force the employee to quit is satis-
fied if the employer could have reasonably foreseen that the
employee would quit as a result of its actions.23 however, a rea-
sonable employee has an obligation not to assume the worst and
19 Burns v. McGregor Electronic Industries, Inc., 989 F.2d 959 (8th Cir. 1993);
1 Mark A. rothstein et al., employment Law § 2.14 (3d ed. 1994).
20 Papillion Rural Fire Prot. Dist. v. City of Bellevue, 274 Neb. 214, 739
N.W.2d 162 (2007).
21 Brenneman v. Famous Dave’s of America, Inc., supra note 9.
22 Id.; Tatum v. Arkansas Dept. of Health, 411 F.3d 955 (8th Cir. 2005).
23 Brenneman v. Famous Dave’s of America, Inc., supra note 9; Wright v.
Rolette County, 417 F.3d 879 (8th Cir. 2005).
446 	276 NeBrASKA rePorTS

not to jump to conclusions too quickly.24 And an employee who
quits without giving her employer a reasonable chance to work
out a problem has not been constructively discharged.25
In this case, we determine that the evidence presents a
genuine issue of material fact concerning gavin’s constructive
discharge claim. First, there is evidence that a reasonable per-
son could find the working conditions at rTSI intolerable. As
described above, the record indicates that gavin was subjected
to numerous offensive remarks of a sexual nature, as well as
offensive behavior.
As to the second element of constructive discharge, although
there is no clear evidence that rTSI or rogers intended to force
gavin to quit, there is evidence that rTSI could have reasonably
foreseen gavin would quit as a result of the harassing conduct.
For example, during the second week of her employment, gavin
told a rTSI manager that rogers made her feel uncomfortable.
gavin also attempted to convey to rogers, on at least two separate
occasions, her discomfort with rogers’ conduct. gavin’s hasty
departure after she saw rogers, partially unclothed, looking at a
“scantily clad blond woman” on his work computer could also
be seen as notice to her employer that she might quit her job to
avoid the environment to which she was being subjected.
Consequently, we conclude that there are genuine issues of
material fact as to gavin’s constructive discharge claim. Based
on the evidence, a trier of fact could find that gavin was con-
structively discharged from rTSI. We determine, therefore, that
the district court erred in granting rTSI’s motion for summary
judgment as to the constructive discharge claim.
CoNCLUSIoN
For the foregoing reasons, we reverse the district court’s
entry of summary judgment in favor of rTSI and remand the
cause to the district court for further proceedings consistent with
this opinion.
reversed And remAnded for
further proceedinGs .
24 Brenneman v. Famous Dave’s of America, Inc., supra note 9.
25 Id.; Duncan v. General Motors Corp., 300 F.3d 928 (8th Cir. 2002).
gAvIN v. rogerS TeCh. ServS. 	447
Cite as 276 Neb. 437