6 F.4th 834
8th Cir.2021Background
- Hairston was hired by the Pine Bluff Arsenal as a general supply specialist on January 28, 2013 (probationary period). Her immediate supervisor was Duane Johnson; her second-level supervisor was Deborah Moncrief.
- Over 2013 Hairston alleges several sexually charged incidents by Johnson: coworkers told her he called her “pretty” and said she had a “nice booty,” and at a July/August work social Johnson allegedly dropped a saltshaker down the front of her shirt.
- After confiding in coworker John Bynum (an EEO assistant), Hairston did not immediately file an EEO complaint; the EEO manager (Bolden) learned of the allegation and informed Moncrief. Johnson then accused Hairston of multiple misconducts and emailed Moncrief a series of complaints about her.
- An outside investigator (Barrington) later investigated and reported findings that Hairston had pressed her breasts against Johnson’s back (finding Hairston the “subject” and Johnson the “victim”) and found the saltshaker allegation unfounded. Moncrief appears not to have reviewed the final report.
- Hairston sought EEO counseling on December 2, 2013 and reported a separate inappropriate Johnson remark about a Victoria’s Secret show; Moncrief terminated Hairston on December 12, 2013 citing repeated unprofessional conduct and alleged inappropriate touching. Hairston sued under Title VII.
- The district court granted summary judgment to the Army on both claims; the Eighth Circuit affirmed as to hostile work environment but reversed as to retaliation and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Hostile work environment (sexual harassment) | Hairston: three incidents (comments about her body, saltshaker incident, Victoria’s Secret remark) created a hostile workplace altering terms/conditions of employment | Army: incidents were isolated/offensive but not sufficiently severe or pervasive under Title VII | Affirmed: incidents not severe or pervasive enough to establish hostile work environment; summary judgment for Army affirmed |
| Retaliation (termination after complaint) | Hairston: termination followed her EEO counseling/complaint and was pretext for retaliation; Moncrief delayed addressing alleged misconduct until after Hairston complained and investigated Hairston but not Johnson | Army: legitimate, non-retaliatory reason—Hairston’s repeated unprofessional conduct and inappropriate touching; timing alone insufficient to show pretext | Reversed: genuine dispute of material fact exists as to pretext (extended tolerance of conduct, sudden action after protected activity, and lopsided investigation), so summary judgment for Army on retaliation was improper |
Key Cases Cited
- Paskert v. Kemna-ASA Auto Plaza, Inc., 950 F.3d 535 (8th Cir. 2020) (standards for Title VII hostile-work-environment claims)
- Hesse v. Avis Rent A Car Sys., Inc., 394 F.3d 624 (8th Cir. 2005) (elements of hostile-work-environment claim)
- Nitsche v. CEO of Osage Valley Elec. Coop., 446 F.3d 841 (8th Cir. 2006) (severity/pervasiveness standard)
- Harris v. Forklift Sys., Inc., 510 U.S. 17 (U.S. 1993) (workplace permeation/abusive environment test)
- Fitzgerald v. Action, Inc., 521 F.3d 867 (8th Cir. 2008) (timing and prolonged tolerance can support inference of pretext)
- Alvarez v. Des Moines Bolt Supply, Inc., 626 F.3d 410 (8th Cir. 2010) (investigating complaint that leads to discipline does not alone prove retaliation)
- Gibson v. Geithner, 776 F.3d 536 (8th Cir. 2015) (McDonnell Douglas framework for retaliation)
- McPherson v. O’Reilly Auto., Inc., 491 F.3d 726 (8th Cir. 2007) (summary judgment standard on appeal)