*2 HANSEN, аnd R. JOHN GIBSON Before ARNOLD, Circuit SHEPPARD MORRIS Judges. ARNOLD, Circuit SHEPPARD
MORRIS Judge. at in maintenance worked Bettie Whitmore managed first shopping mall that was Inc., subse- Management, and O’Connor Management, by General Growth
quently employers main- her alleges that Inc. She subjecting a hostile environment tained Marcel Bar- harassment her to sexual held that tee, The district court a co-worker. claim, 2000e-2(a)(l), was § O’Connor U.S.C. v. O’Connor See Whitmore time-barred. Supp. F. Management, further (W.D.Mo.1995). The district court produce did not that Ms. Whitmore held to establish that sufficient subjected a hostile envi- her to had no- was on General Growth ronment or that actionable constituted tice of activities Finally, the district sexual harassment. Hu- Missouri that Whitmore’s court held claims, Ann. Stat. see Mo. Rights man Act 213.055.1(l)(a), she had failed because § Ann. Mo. letter that obtained requires. § 213.111.1 Stаt. the district appeals from
Ms. Whitmore in favor summary entry judgment court’s on the Title of O’Connor dismissal court’s and the district claims claims. Rights Act Human Missouri of her judgments of affirm We respects. in all court1
I. at the Ward began to work April, Center
Parkway Shopping mall. Ms. managed when O’Connor maintenance, cleaning worked MO, ar- North, Jr., City, Kansas L. Basil sup- hiding in began restrooms. brief), (Maria North-Harris, on the L. gued her when closets, frighten out to jumping ply Appellant. breasts alone, touching MO, argued the mall City, at Phillips, telling Kansas other workers R. thighs, John intercourse Metz, in sexual engaged (David Mary E. he had Trowbridge and C. (Ms. in the closet. brief), Management. Genral Growth Stevens, Jr., Missouri. United Joseph E. 1. The Honorable Judge District for the Western States District aware of the that Mr. comments Bartee had began managing the mall. General employees, made about her to other beсause Growth hired Ms. Whitmore and Mr. Bartee her.) they told told the lead jobs to do the that they performed be- maintenance, Wesley, that Mr. Benson, fore. Don general that time the *3 touching “was pulling her and on manager mall, her clothes Hibben, and Glenn her, pulling and on stuff like this.” Mr. operations that time the manager, learned spoke testified he the build- about the on shortly assaults Ms. Whitmore ing superintendent, Sweеney, coming to work for General Growth at problem, only say but that Mr. Bartee was the mall. court, hanging around the food which long Not after General Growth assumed Ms.
where Whitmore worked. mall, the management of the Mr. Bartee’s pattern aggression of sexual court, sister came into the up food walked in August, culminated two in incidents Whitmore, behind Ms. and called her name. begun Ms. Whitmore had then serving as Ms. Whitmore turned around and the sister the lead in charge of maintaining the said, “[Bjitch, you got Marcel in a lot of court. permission food She had to pass the trouble.” Ms. said that Mr. Bar- time supply locked room before she tee’s purse, sister “had a kept running her duty. came on happened The first incident hand in it ... down like she gun had a or room, that supply where Ms. Whitmore something.” Ms. Whitmore further stated paying some bills before beginning work. that she “took off to the got my bag back and Mr. Bartee came into the room grabbed and and I ran over” to Mr. Hibben and told him Ms. breast. She threatened to apparent about the said, threat. Mr. Hibben office, report him to the grabbed and he her thought “I all that stuff was over with be- legs. between her He left when he heard tween you and Marcel.” keys jingling nearby. someone’s Later that When the against criminal case Mr. Bartee day, grabbed her neck in the court food trial, came to he was convicted of third- and kill threatened to her. degree abuse, misdemeanor, sexual The second incident occurred later probation. received job He retained his af- week when Ms. Whitmore arrived at work ter his conviction and continued stare at early. almost five hours sup- locked the Ms. conspicuously long periods ply lay room and down on some boxes to take of time as she worked the food court. Mr. nap. up She woke to find Mr. Bartee Bartee had been ordered the criminal putting his hand between legs. her He then stay Whitmore, away from Ms. but exposed himself, physically tried to force her manager shop mall, of a sandwich in the perform fellatiо, and tore the zipper Driscoll, Shannon said that Mr. Bartee would pants. When another worker came to hang railing, over the looking down at the door, Mr. Bartee left. Ms. Whitmore court, food “especially when Bettie was reported the event operations to the manag- emphasize there. can’t enough. I am er, Redford, David investigated who it. Mr. talking 20 minutes in spot, the same occurrеd, Bartee denied that it had but moving, long period for a of time.” Ms. Redford collected evidence that Mr. Bartee Driscoll described Mr. watching Bartee as employee had offered money another for sex Ms. point Whitmore “to the of where I would and had made sexual advances to still anoth- Bartee, almost call it stalking.” Mr. more- er. After the investigation, O’Connor sus- over, continued to refer to Ms. Whitmore as pended Mr. Bartee for days ten and warned prostitute his in such language crude stay away him to from Whitmore and not Driscoll it to Ms. Whitmore retaliate her. Ms. Whitmore re- herself. Mr. Hibben said he knew that ported the police, to the assaults and Mr. Mr. Bartee was making derogatory com- criminally prosecuted. ments about Ms. but that he did O’Connor managing ceased the mall on up follow оn it “just because it was 31,1993. January Retail, Inc., Compass took hearsay.” He did not ask Mr. Bartee about months, over five and then it because there was “no proof.” ques intake eases is unverified Whitmore contends appeal, Ms. On charge. a formal not constitute tionnaires against O’Connor claim Communities, Inc., Cooper Lawrence v. subjected a con- See she was timely becausе (8th Cir.1998), and Schluet began O’Connor before tinuing violation that Anheuser-Busch, also main- er v. mall. She managing the ceased neverthe She contends sufficient evidence produced that she tains answers to the she intended the wheth- less that fact as to of material question raise proceedings against to initiate questionnaire envi- subjected to a hostile work she was er therefore treat that we should worked for O’Connor when she ronment charge, she cites us to a formal was on them as but whether General indicating question “the Fi- no evidence an environment existed. notice that such *4 charge a to function as required naire intended she was not nally, she asserts case,” Mining and Diez v. Minnesota [her] from the Mis- letter obtain Co., 672, 677 Mfg. Rights, on Human because souri Commission (age at 674-75 discrimina generally id. а letter See such from had received she cases). case, discussing We tion EEOC. summary judgment en therefore affirm II. on the against Ms. Whitmore tered respect to O’Connor. claim with stat- attempts to avoid the Ms. Whitmore claim her Title VII bar to of limitations ute arguing that O’Connor against O’Connor III. responsible for continued actions
is doubt We considerable entertain first, she the mall. At managing ceased it out hаs made Ms. Whitmore about whether advancing corporate succes- appears to be Mr. Bartee continued case that sufficient managers’ subsequent theory, sor based on sexual harassment subject her to actionable In Bartee’s conduct. remedy Mr. failure Growth period General during the when brief, however, Ms. Whitmore reply pass over that mall. We managed the that Gen- nevеr asserted that she “has states however, that the district we think because the successor O’Con- ... is eral Growth summary judgment correctly granted states, nor,” “Plaintiff has and she also proof notice to General lack of on the no clear she can find frankly admitted that continuing activities Mr. Bartee’s Growth theory it “anal- but that is precedent” for her nature, any. of an actionable Actually, Ms. liability. оgous” to successor arguing predeces- for to be seems note, all, Ms. Whitmore first of We lia- liability, asking us to hold O’Connor sor herself, connection in her affidavit in any In conduct. Growth’s for General ble charge, specifically admitted her EEOC event, many difficulties with there are of Mr. Bartee’s she had argument, not the least legal Whitmore’s management. to General Growth’s conduct no there was sale is the fact that which said, was, O’Connor “had because That she re- creating predecessor-successor business complained, I anything before when not done corporations. the two between lation purpose no that there was felt [and so] to be appears to argument us this state- While complaining at this time.” liability impute request to more than a little pre- estoppel to operate as an ment will authority legal no in which a case there contrary stating the from Ms. Whitmore vent necessarily so, that we doing an invitation lawsuit, repeatedly held we have in her later decline. require will plaintiffs sworn admission that a “ ‘strong countervailing production of attempts also ” contrary position in takes a if she contending evidence’ bar the limitations avoid a motion survive litigation, in order to day later begin on the period should the relevant See, e.g., Dush v. summary judgment. ques an EEOC intake she filled out when Co., Electric Appleton tionnaire, day on the when rather than Marriott In- quoting Mohamed general rule in charge. The formal filed ternational, 277, 282 not contain F.Supp. ord does evidence that would (S.D.N.Y.1996). support finding that General Growth was during on notice of actions litigating position in this Ms. Whitmore’s managing note time that it the mall. We however, case, that she in- is not so much prohibited Growth of Mr. Bar- directly formed General Growth within going view of Ms. Whitmore behavior, tee’s as it is that Growth’s immediately charge after she filed an EEOC management was on The notice of it. record complaining about his other activities. amply does indeed that General demonstrate words, explicit communication to General outrageous was on notice Growth Growth’s of Ms. Whitmore’s deplorable conduct on Mr. Bartee’s complaints brought prompt appropri- occurred before General took over Growth response. ate remedial We con- therefore management of the mall. there was While correctly granted clude that the district court that Mr. Wesley of some of knew summary judgment to General during Mr. Bartee’s actions the relevant time Ms. Whitmore’s Title VII claim. (that is, managed while General mall), Mr. Wesley demonstratively not a part of General management. IV. *5 one, it is that Mr. knew that Ms. Whitmore maintains that the district Mr. Bartee’s sister had threatened Whit- in dismissing court erred her claims under unspecified hardly some way, more is suf- (MHRA) Rights the Missouri Human Act to ficient General noticе that Growth on because she failed to obtain right-to-sue a Mr. harass Ms. continued to Rights letter from the Missouri Human Com- sexually. Whitmore The same can be said of argues mission. that the right-to-sue testimony Hibben’s knew that he agency letter the state is un- rendered defaming Ms. Whitmore. necessary by work-sharing agreement be- Ms. Whitmore doubtless suffered sex agency tween the state The and the EEOC. ual harassment of possible the severest sort work-sharing district held manage before General Growth assumed agreement provide any did not for ef- such of the ment mall. befell Ms. Whatever harm that, case, in any fect agencies thereafter, however,
Whitmore was not suffi agree away statutory not with a re- ciently communicated to General Growth to quirement. any it liable make for continuation of that harassment. Ms. no claim Whitmore makes work-sharing agreement The vicariously is liable for Whitmore has submitted our review does all acts of sexual harassment committed explicitly not obviate the right-to- need for a employees. We believe that in cases not letter, can sue nor we discern intent such involving liability, employees vicarious have implicit agreement. in the Although we dis obligation employеrs, to inform their cover no Missouri case on we believe otherwise, directly or either of behavior the Missouri courts would consider objectionable they employers find before can right-to-sue precedent, letter as a condition responsible failing be held correct that jurisdictional although prerequisite, not behavior, at ordinarily. least Absent some bringing an action under the MHRA. See showing of negligence part of General Vankempen v. Douglas Corp., McDonnell Growth, Ms. prevail Whitmore in the cannot 146, (E.D.Mo.1996); F.Supp. 923 148-49 see circumstances of this case. See Kinman Bank, also Jones v. American State F.2d 857 District, 463, Public Omaha School F.3d 94 (8th 494, 499-500 Cir.1988) (same under issue 469 VII). would, therefore, perhaps Title It have
Regardless
party
possible
obtaining
of which
has the
been
cure the defect
proof
case,
burden
on the issue
notice in
letter
filing
see
lawsuits,
Silverstein,
Burlington
463,
these kinds of
In
Perkins v.
471-72
—
dustries,
Ellerth,
-,
Inc. v.
evidently
118
but Ms.
U.S.
2257,
(1998),
S.Ct.
141
L.Ed.2d 633
rec- made no
to do so. We therefore
1993,
had taken over
after General Growth
of her
court’s dismissal
affirm
July
management of the mall on
claims.
MHRA
complained
Wesley
that Bartee
then reiterat-
staring
at her. Whitmore
Y.
complaint when Bartee’s conduct did
ed her
judg-
given, we аffirm the
reasons
For the
Wesley
improve.
told her
court.
ments
district
Sweeney.
majority
complaint to
complaint no effect be-
gives Whitmore’s
GIBSON,
Judge,
R.
Circuit
JOHN
cause,
demonstratively
Wesley
“Mr.
dissenting
part.
management.”
Su-
General Growth’s
presents
that the record
I believe
Because
However,
pra at
the record demon-
to whether General
an issue of fact as
Wesley was
strates thаt
General Growth’s
knowledge
had actual or constructive
purpose
reporting complaints
agent for the
during
harassing
Whitmore’s;
Sweeney, a Gen-
such as
mall,
managed the
the time General Growth
that,
Bar-
supervisor, agreed
as
eral Growth
Part III of the
dissent from
respectfully
duty to
person,
had the
tee’s lead
opinion.
Court’s
“problems ... be-
report
employees for whom he was the lead
tween
today
concedes
The Court
Stores,
In Bales v.
person.”
as-
managers knew of the earlier
(8th Cir.1998), Bales com-
VII,
F.3d
Supra at 798. Under
saults.
Bollenbaugh,
plained of sexual harassment to
as
employee’s work environment
evaluated
was “not
that Wal-Mart contended
whole,
by viewing particular
rather than
supervisor.”
manager nor was she a
Bales’s
from each other. See
evеnts
isolation
However,
deposi-
Id. at 1110.
we looked
Runyon,
F.3d
Hathaway v.
*6
“super-
testimony
Bollenbaugh
Cir.1997)
tion
had
(“A
environment
work
authority”
and that
it
visory
over Bales
of abusive con-
shaped by the accumulation
“appropriate”
complain
to
be
Bales
would
duct,
resulting harm cannot be mea-
and the
“[ajlthough
[Bollen-
to her.
Id. We held
a series of discrete
by carving it ‘into
sured
management
most sеnior
baugh
not the
”). Therefore,
was]
though
even
Gener-
incidents.’
might
Bales
have com-
person to whom
responsible for the earlier
al
was not
evidence that
plained,” there was sufficient
incidents,
knowledge of
managers’
Whit-
known of the
knew or should have
how those
is relevant to
more’s earlier ordeal
Similarly,
deposition
the
Id.
harassment.
responded to later
have
managers should
Wesley
had
testimony in this case shows
harasser
involving the same
developments
that it
authority over Bartee and
supervisory
the same victim.
with
duty
report problems
to
Wesley’s
today places undue reliance
The Court
up the chain of command.
in
affidavit
statement
her EEOC
Whitmore’s
report
harassment
to
the
that she did
Moreover,
enough
Wesley reported
management
between
General Growth’s
on notice
January 1994” or after re-
“July 1993 and
staring. Hibben testified
about
injury.
April
1994 after an
turning to work
him,
“Bettie believes
Sweeney told
necessarily inconsistent
is not
This statement
the shadows or
watching her from
Marcel is
testimony that
deposition
with Whitmore’s
corners,
along
something
those
or
from the
Wesley
staring to
reported Bartee’s
when he
not able to tell
lines.” Hibben was
rate,
it
At
July
August
or
Sweeney.
Nevеr-
this conversation
employer to have notice of
possible for an
theless,
with Whitmore’s
his statement fits
reporting
the victim herself
situation without
prob-
testimony
told
of
that she
Moreover,
affidavit
EEOC
it.
Wesley said
July August 1993 and
lem in
or
reported to
that she
specifically mentions
these
Sweeney. Taking
report it to
he would
threat
Bartee’s sister.
infer
jury
could
together,
all
statements
problem about
Hibbеn knew
deposition that
at her
Whitmore testified
that time.
July
beginning August
or
in the middle
Hibben also testified that he knew of the
sexually.” Supra
rass Ms. Whitmore
at 800.
defamatory
Bartee was making Here,
statements
supports
finding
of a
about Whitmore.2 Hibben defended his fail-
threat
against
employee by
of retaliation
situation,
anything
ure to
saying
already
who has
committed two sexu-
“just hearsay”
the information was
and there
against
al assaults
employee.
I will not
proof.”
was “no
nothing
hap-
If
else had
catalog
the cases in which we
pened
Whitmore,
between Bartee and
upheld
have
harassment claims for less se-
fact,
might be excusable. But in
conduct,
by way
vere
but
example
I com-
knew that
already
Whitmore had
suffered
pare Whitmore’s claim to that in our recent
“sexual harassment
possible
of the severest
Service, Inc.,
case of Rorie v. United Parcel
sort,”
supra at
from Bartee.
In this
(8th Cir.1998). There,
knew that Mr. sister had threatened unspecified way, hardly sufficient to General Growth on
notice that Mr. continued to ha- saying 2. Bartee had been prostitute. that Whitmore was his