*1 lB1.3(a)(l)(B) provides Section Randy GILOOLY, Plaintiff-Appellant, jointly case of a undertaken
that “in the responsi activity,” criminal a defendant is reasonably foreseeable acts or ble for “all DEPARTMENT MISSOURI OF of others furtherance of the omissions SERVICES, HEALTH AND SENIOR activity.” criminal “Ac jointly undertaken SERVICE; DIVISION OF SENIOR convicted of con cordingly, a defendant Department of Missouri Social Ser- all held accountable for spiracy properly Betty vice, Aging; Bolden; Division of reasonably co-conspira foreseeable acts of Sutton; Gladys Hood; Helen Jennifer advancing conspiracy.” United tors Edwards-Matthews; Bonnie Eulin- Wound, States v. Bad Allen; berg; Hollering; Karen Linda Cir.2000). to fore “Factors relevant Lewis, Defendants-Appellees. Sandra seeability include whether the defendant co-conspirator’s activi benefitted from No. 04-2460. he demonstrated a
ties and whether sub of Appeals, United States Court stantial level of commitment to the con Eighth Circuit. Brown, spiracy.” United States Cir.1998). 1003, 1008 Submitted: Jan. 2005. the district court finds that Jessi- Unless Aug. Filed: layering ca’s and activities were not Celia’s reasonably foreseeable to Mathias in fur- money-laundering conspir-
therance of the
acy, finding imagine, this Court cannot Miles, (applying
see
sophisticated-laundering enhancement finding layering
defendant after activities reasonably
of co-conspirator foreseeable to defendant), the enhancement should
apply to Mathias.
III. CONCLUSION reasons, foregoing
For the we affirm
Mathias’s, Jessica’s and Celia’s convictions.
We also affirm Jessica’s and Celia’s sen- However,
tences. we vacate Mathias’s for resentencing
sentence and remand con- opinion Supreme
sistent with this and the in Booker. opinion
Court’s imprisonment, range imprisonment. rather than a of 360 months' life *2 Perron, Louis, MO Bolden in conduct that made argued, L. St. Martin (Maria Perron, Louis, brief), necessary Specifi- on the for him to transfer. St. V. cally, Gilooly alleged that Sutton was fre- appellant. quently around his desk and she had Thomas, argued, Assistant L. Denise *3 said she was attracted to him. He also General, Louis, MO, Attorney St. Missouri that Bolden made unan- complained appellee. for Gilooly nounced visits to his home. admit- MELLOY, SMITH, and Before relationship ted that he had a with Bolden COLLOTON, Judges. Circuit previously. Gilooly personal stated that Bolden and him problems between
MELLOY, Judge. Circuit him making perform it difficult for Randy Gilooly filed an dis- job. Gilooly that he said needed transfer pursuant crimination suit in federal court had because Bolden Sutton become § to Title VII and U.S.C. “overly dependent on him.” At the time of pursuant to the district under state law interview, Gilooly not the exit did file jurisdiction, against supplemental court’s complaint. During sexual harassment (collectively, the Defendanb-Appellees the Hood, meetings with both Bolden Sut- Gilooly “Appellees”). appeals the district having relationships ton confessed to with granting summary judg- court decision Gilooly. Gilooly denied current relation- part affirm in Appellees. ment to the We ship with either woman. in part. and reverse and remand 8, 2001, May Gilooly girl- and his On friend, Decker, Angie who not an em- was I. DoA, ployee of the visited a client in a Gilooly employed by was the Missouri hospital. mental The visit was unautho- of Health and Human Department Ser- Gilooly rized because had not obtained su- vices, for [Division Section Senior Services pervisor approval. During inquiry (hereafter “DoA”).1 DoA, At the Aging] visit, the it about was discovered this Gladys supervised Gilooly defendant Hood Gilooly’s was not first unauthorized visit Betty and defendants Jennifer Sutton and Gilooly given with the client. had also 12, 2001, Gilooly Bolden. Effective March pepper spray though client a can of even granted position a transfer from his she was a self-mutilator. known Ed- Mississippi County Hood in to a Eulinberg wards-Matthews recom- Cape County. position similar Girardeau discipline Gilooly’s mended misconduct. Defendant Helen Edwards-Matthews was Gilooly’s supervisor at the new location. 30, 2001, May Gilooly reply On wrote Eulinberg Defendant Bonnie was the re- disciplinary to the In recommendation. gional manager for both counties in which reply, alleged disciplinary he Giloolyworked. recommendation was retaliation for his transfer, report during
Before his exit of sexual harassment his exit interview, interview, Gilooly though actually told Hood that Sutton he had never agency question Department 1. The name of the of this Court uses of Health tion undergone changes giv- several and has been purposes and Human For of this Services. parties en different names and courts opinion, we use the full name identified in the parties’ involved in the matter. The briefs caption adopt of the court and the abbrevia- agency Department refer to the tion used the district court. cap- Health Services whereas the and Senior mer co-workers.” The complaint. a sexual harassment On letter identified filed 6, 2001, July Hoellering, defendant Karen it alleged several areas where manager, human resources issued a Gilooly First, DoA investigators. had deceived Gilooly. He was sus- suspension letter Gilooly alleged falsely had denied pay days for five for his pended without “personal relationships beyond friendship” visit, giving pepper unauthorized with several former co-workers. In the uncooperative attitude after spray, and his letter, “Jennifer,” “Betty,” and “ClaraE” disciplinary report was issued. Hoel- are identified as three women who learned, lering also but did base her having had relationships Gilooly, but fact, upon had decision with whom had either denied or emails on state time exchanged personal refused to answer whether he was involved *4 eight at least equipment with women. Second, in a sexual manner. the termi- nation letter that Gilooly’s allega- stated 12, 2001, Gilooly union July On and his “Betty” tion that “Jennifer” and had pre- met with Edwards-Mat- representative him doing by distracting vented from work Eulinberg regarding suspen- thew they him was false because had told inves- 27, 2001, July Gilooly filed a sion. On tigators they actually doing that had been charge with the Missouri of discrimination Third, Gilooly’s eyewitness work. ac- Au- Rights. Commission on Human On particular counts of allegedly events con- 9, 2001, Gilooly grievance filed a re- gust Gilooly’s tradicted statements. For each request alleging sexual harassment view allegations, of these the termination letter retaliation in violation of Title and unlawful beyond did not cite documentation request, Gilooly alleged In that VII. his testimony of other range employees had and wit- Bolden and Sutton him. nesses. The letter also recounted the inappropriate conduct toward Gilooly’s events that led to Specifically, alleged suspension. he Sutton had manner, him in hugged inappropriate 26, 2001, Gilooly appealed On November by visiting him from his work distracted Advisory his termination the Personal desk, and made unwanted advances Board, upheld but it the termination. On him. toward He also Bolden 13, 2002, January Gilooly filed a second visits to his had made unannounced home complaint with the Missouri Commission him working. and also distracted from Rights. on Human In the second com- Lewis of the Defendant Sandra Office Gilooly alleged firing that his plaint, Rights Department Civil of Social retaliatory. Again, the commission did not charged investigating with Services was Gilooly’s allegations find to be credible. 17, 2001, Gilooly’s September claims. On Rights report the Office of Civil issued its harassment then filed sexual support Gilooly’s allegations. and did lawsuit federal court is the basis 26, 2001, September On adminis- appeal. granted this The district court suspension trative of his was heard appeal summary judgment for defendant on 25, 2001, Gilooly and denied. On October Gilooly argues that appeal, all claims. On 7, fired, effective November that he finding the district court erred facie case prima had failed to establish The termination letter stated that “[t]he 2) 1) environment; dispa- of: hostile work [Gilooly’s] reason for dismissal [was] 3) treatment; unlawful retalia- in- rate made false statements [he] Gilooly’s argu- tion. We address each vestigation grievance hearing which in turn. against followed accusations two for- ments [his] 738 unpleasant.” Alagna, rude or 324 F.3d at
II.
plaintiff
980. A
must establish harassment
grant
review for a
The standard of
offensive,
intimidating,
or hos-
is “so
is de novo. Allen v.
summary judgment
‘poisoned
tile that
the work environ-
Ark.,
Pocahontas,
F.3d
City
340
” Scusa,
(quoting
ment.’
Cir.2003);
Co.,
Scusa v. Nestle U.S.A.
181
(8th Cir.1999).
958,
F.3d
965
Gilooly
appeals
also
the decision of
agree
Because we
with the district
regarding
disparate
the district court
court that
prove any
is unable to
treatment claim. This claim relates to the
material fact question
May
suspension
as to the fourth
for the unauthorized
element, we need not discuss the other
in a
hospital.
visit
the client
mental
To
claim,
elements. To
disparate
establish the fourth ele
establish a
treatment
a
ment,
(1)
plaintiff
a
prove
plaintiff
must be
must
that:
a
show
he or she is
(2)
class;
harassment
pervasive
protected
was “so severe or
as
of a
member
he or she
term, condition,
to alter a
privilege
meeting
legitimate expectations
or
of was
as
(3)
Scusa,
employment.”
duties;
violated conflict Gilooly presented court that insufficient result, rules. As a the cu reporting to establish a claim evidence of causation against Gilooly mulative accusations were of retaliation. severe, identify failed to more and he has of the any similarly employees situated termination, his the district Turning to preferen treated opposite sex who were court concluded that there was no causal tially. City Minne Cronquist See v. reporting link between the sexual Cir.2001) apolis, 237 F.3d Gilooly’s discipline and harassment and similarly not (finding employees were disagree. termination. We degrees of different situated because under the prove To a causal connection misconduct). element, plaintiff prove must third V. retaliatory played a employer’s an motive action. part the adverse argues also that his termi Highway Transp. & Kipp Missouri impermissible suspension nation and Comm’n., 893, 896-97 Cir. Title retaliation actionable under Title VII. an gives rise to “[E]vidence employer makes it unlawful for an VII retaliatory motive on inference of “op discriminate for employer prove is sufficient any practice part made unlawful of the pos[ing] However, (internal can- defeated. also at would be Id. connection.” a causal omitted). that a can file false not be true marks quotation possibly charges, investigator, lie to an found that court The district suffering co-employees, without re- defame unautho- caused his termination investiga- percussions simply because A a non-Do em- to a client with rized visit sexual harassment. To do tion was about However, responsi- those because ployee. ability to employers leave with no so would expressly denied firing for his ble employees defaming fire for other justification for incident was the previous their com- employer through ees or the termination, that the termination allegations are without plaint when the by Gilooly describes his letter received basis in fact. investigation during conduct represent These scenarios two extremes. disagree with the firing, for his we basis Differentiating individual cases between “plain- conclusion that the court’s district a difficult endeavor at the two extremes is that his presented tiff evidence summary judgment stage. Nonethe any reason than for was for termination less, previously addressed this issue The termination letter policy.” violation firing for must and found that the reasons termination, clearly reasons for stated as filing from the “sufficiently independent deception during the Gilooly’sconduct and complaint legitimate of the to constitute investigation. The em- sexual harassment nonretaliatory discharge.” for reasons agen- on a letter from a state ployer relied Munson, Womack cy investigator who (8th Cir.1980). Further, questions related investigation. There is had lied very to the substance of the Giloolyhad been no evidence that indicates sufficiently independent” and are “not clear, lie, but, unequivocal caught therefore, scope protect within the rather, that the investi- the evidence shows activity. Specifically, investiga ed Id. Gilooly to credible gator had found be less “independent tor’s determination of truth Taking the ter- than the other witnesses. ... falsity plaintiffs] allegation of [the most favorable to light mination letter grounds discharge.” legally be [can]not discussed be- Gilooly and for the reasons However, if Id. at 1298. the false state low, gives this case we conclude *7 part protected ments are “not activi retaliatory necessary inference of motive. ty,” they legitimate can reasons then be Gilooly has met the Because we believe Sweeney City for termination. La of pur- claim for elements of a retaliation (hold due, Cir.1994) summary for poses surviving of a motion that a third ing party’s related lies judgment, question we must address is investigation protected were not activi case, whether, the facts of this Giloo- given ty). ly legitimate, was non-discrimina- fired for case, tory investigator’s In this be reasons. It cannot be the case any Gilooly lying a Title claim lief that was the basis employee who files VII Gilooly. Accord employer and his or her the DoA’s decision to fire is disbelieved letter, the belief ing can fired. If were the to the termination legitimately be such case, Gilooly lying solely was founded every employee could be deterred employees from on the statements of other and filing purposes their action and the of contained no in witnesses.2 The letter inde regards Title VII to sexual harassment provided by testimony may argued independent ration can be from It be corrobo- disparate ronment and evidence that contra- treatment. How- pendently verifiable allegations. ever, such Gilooly’s given conclusion, Without dicted the court’s corroboration, in the statements additional agree, I that false which statements made little letter amount to the termination sex discrimi- description conflicting than a sto- more nation can a basis for dismissal of an employer disbelieving Giloo- ries with (and employee protected thus are not “op- ly’s version the events. in position” “participation” or a sexual investigation), harassment the district assessing witness This Gilooly’s court’s dismissal of retaliation normally province of a credibility is trial. claim fact-finder at a sexual harassment also should be affirmed. The Mis- to Allowing employer’s investigation Department souri Health and Senior essentially the retaliation (DHSS) short-circuit indisputably Services terminated antithetical to the begins claim is before reasonable, Gilooly on a good based faith design investigator of Title VII. Had the belief that filed false sexual harass- deception a clearer record of found charges, gave ment and then false testimo- findings, for such a court detailed basis such, ny charges. in relation to those As firing pro- was not for could find the termination did not constitute discrimi- However, case, in this tected conduct. against opposi- nation because of question largely undeveloped best participation protected tion that is un- or result, to left to a fact-finder decide. As der Title VII. in we conclude the district court erred Title VII makes it an “unlawful granting summary judgment as to Giloo- practice” employer ment for an “to dis- ly’s concerning claim his termi- retaliation criminate” be- “[1] nation. opposed any practice has made cause he VI. employment practice by an unlawful this For the Gilooly’s foregoing hostile work environment and reasons, we affirm subchapter, or charge, testified, assisted, [2] because he or participated made any investigation, proceed- manner in an However, treatment claims. disparate ing, hearing subchapter.” under this concerning the retali- reverse remand § 2000e-3. The two clauses of this U.S.C. ation claim as to termination and described, typically respective- are section may claims to which the district court “par- and the ly, “opposition clause” supplemental jurisdiction. exercise considering In a claim ticipation clause.” COLLOTON, Judge, concurring Circuit retaliation, important it is of unlawful part dissenting part. whether the conduct of the em- determine *8 “opposition” un- ployee at issue constitutes agree correctly I that the district court clause, “participation” der the first summary judgment dismissing granted clause, activity not covered the second dis- Randy Gilooly’s alleging claims sex all, analysis of an envi- at because the crimination based on a hostile work Gilooly’s desk. The "con- non-parties. Assuming be Sutton would sit at neutral to true, minor, inconsequential who that is not our case. Co-workers tradictions” dealt with subject complaint were not the of the testimony eyewitness as related details. The However, tend- interviewed. their statements letter does not rise to in the termination allega- Gilooly's ed to corroborate some of independent of corroboration. level tions, Bolden and such as the claim that both 742 i.e., to an in “subchapter,” pursuant on the not may depending differ action
er’s
vestigation by
designee,
the EEOC or its
employee’s conduct.
nature of the
Meese,
v.
907
is not covered. Vasconcelos
an em
protects
clause
opposition
The
(9th
111,
Cir.1990);
F.2d
113
see also
he
discrimination because
ployee against
1002,
Runyon,
1006
Brower v.
178 F.3d
un
any practice “made an
“opposed”
has
employee
When
practice” by Title VII.
lawful
investigation,
participating
EEOC
circuits,
court,
inter
like other
Our
however,
of the
the broad formulation
broadly than its
provision more
preted this
say
clause has led some courts to
that it
might suggest. The clause
plain language
allega
and malicious
protects even false
“oppose”
em
encompasses actions
tions,
filing
complaints.
or the
of frivolous
unlawful,
that are
but
ployment practices
Co.,
E.g., Pettway
Pipe
v. Am.
Iron
Cast
opposition
practices
also includes
(5th
998,
Cir.1969);
411
Proulx
F.2d
1007
unlawful,
long
employee
are not
Citibank, N.A.,
972,
F.Supp.
v.
659
977-78
faith, objectively
good
acted in a
reason
(S.D.N.Y.1987); see also Johnson v. Univ.
practices
were unlaw
able belief
Cincinnati,
(6th
561,
215 F.3d
582
Cir.
of
543,
Corp.,
ful.
v. HBE
135 F.3d
EEOC
2000)
Munson,
(dicta);
619
Womack
(8th Cir.1998);
City,
Evans v. Kansas
(8th Cir.1980)
1292,
1298 & n. 10
(8th
Dist.,
98,
Mo. Sch.
65 F.3d
Cir.
(dicta).
court
Our
followed decision
-
ante,
741, rejects
majority,
The
at 740
Circuit,
acknowledged
which
Seventh
protection
this “extreme level of
for un
reading
of the opposition
literal
clause
Servs., Inc.,
truth,”
Sys.
EEOC
Total
scope,
would result
narrower
but
Cir.2000),
protection
which concluded that broader
although there is a
textual ar
respectable
was consonant with the true intent of Con
view,
gument
contrary
ultimately
for the
I
necessary
gress and
to further the central
agree with the court’s conclusion. The
purpose
Berg
of Title VII.
v. LaCrosse
implicitly
reasoning
court
follows the
Co.,
1045-46
Cooler
in
Caterpil
the Seventh Circuit Mattson v.
Cir.1980).
recently
Supreme
The
Court
lar, Inc.,
(7th Cir.2004),
743 complaints and mali- such as about sexual harass- his unreasonable could immunize ment”). by filing a complaints simply cious internal govern- complaint with a
discrimination statute, In terms of the text of the an employee and “an could as- agency,” ment employee allegations who makes false has by filing unlimited tenure con- himself sure “opposed any practice not made an unlaw- government with the complaints tinuous employment practice,” only ful because employer if that his will agency he fears faith, good is opposition pro- reasonable duplicitous behavior at the discover his Evans, by at tected the statute. F.3d Id. at 891. workplace.” 100; Breeden, at 532 U.S. cf. follows, then, compa- S.Ct. 1508. It a arises, then who decides question The ny employee that terminates an based on has made false and employee
whether the
good
a
faith belief that he made false alle-
respect
to
allegations?
malicious
With
gations has not discriminated
the
only
opposition
under the
analyzed
acts
employee
opposed any
“because he has
clause,
recognized that an em
it has been
practice
employment
made an unlawful
carry out a termi
ployer may properly
Rather,
practice.”
employer
the
has acted
good faith
employer’s
nation based on the
employee
it believed that
the
because
lied in an internal
employee
belief that an
allegations,
made false and malicious
As the Eleventh Circuit
investigation.3
thus did not believe that the
was
resulting employ
the
explained, “[w]hen
protected “opposition.”
Of
.
(not
investigation
govern
tied to the
er’s
course,
employer
good
if the
has no
reason
ment) produces contradictory accounts of
allegations
to
employee’s
conclude
the
events,
employer
historical
the
significant
malicious,
knowingly
false and
then
lawfully make a choice between the
can
to
genuine
there will be a
issue as whether
is,
accept
one
conflicting versions—that
employer’s
the
stated reason for termi-
reject one as fictitious—at
as true and to
a
for
retaliation
pretext
nation is
unlawful
least,
choice is an honest
long
activity. But
a
protected
whether
Servs.,
Sys.
221 F.3d at
choice.” Total
jury
disagree
judge
might
later
is a
1176. This
business
good faith conclusion about
employer’s
world,
workaday
employer, and
“[i]n
falsity
not
whether
dispositive,
because
a
every personnel
involving
decision
unlawfully de-
employer
discriminated
(or
cover-up)
false statement
and moti-
pends
employer’s
on the
beliefs
perju
a trial for
something
treated as
like
Highway
v.
&
Kipp
vation. See
Mo.
Id.;
ry.”
Health
see also Wilson
UT
Comm’n,
893, 897
Transp.
(5th Cir.1992)
Center,
Cir.2002)
(holding
that Title VII
“prevent
(stating that Title VII does not
“retaliatory
played
motive
must show
action”)
disciplinary
employer
making
an
from
part
the adverse
(internal
omitted); Scroggins
evaluation of the
quotation
decision based on its
Minn.,
veracity
employee’s allegations
Univ. of
Cir.2000) (holding
inqui-
that the “relevant
activity
protects,
that Title VII
concern
(MCHR), designee
Rights
ground
on Human
3. The first
listed
the DHSS in its
termination letter involved statements made
Opportunity
Equal Employment
Commission.
grievance hearing.
by Gilooly in an internal
93). Gilooly's
(Appellant’s App.
conduct in
hearing
triggered by
The
an internal
therefore,
gov
grievance hearing,
grievance
by Gilooly,
filed
and was conducted
only by
opposition
See Vas
clause.
erned
independent of
concelos,
The motivation of the investigation also internal and in connection respect proceeding should determinative with to be before the Missouri disciplinary actions taken based on state- on Human Rights, together Commission investigation governed by in previous ments with his inappropriate involve- clause.4 Once it in participation mentally is ac- ment the case of a disturbed client, knowledged, majority, that an does which led to a suspension. The knowingly explained who makes false al- to Gilooly “[e]very- DHSS that investigation legations “par- has not one is to opinions per- entitled their and way protected that ticipated” ceptions, is un- to but file false sexual harass- 2000e-3, § der then the gives complaints against statute no ment people with whom that a court you relations, indication should treat had consensual sexual and question employer’s provide motive differ- then to through- false statements ently opposition partic- investigative out the hearing process ipation prohibit clauses. Both clauses reprehensible.” (Appellant’s is App. at 94). an employee discrimination “because” upheld by termination was activity. protected in Advisory Once the the Personnel Board of the State scope Missouri, “opposition” “participation” which concluded that has been defined to exclude false and ma- “lied his grievance second investi- allegations, employer licious acting gation,” on that he “lied anas offensive tactic discipline does not co-workers, basis to intimidate” two female opposed” ee he has “try get “because “because to to suspension rescinded.” 147).6 participated” way he has pro- (Appellee’s App. at The Board grounds 4.The second and third System listed 5. The Eleventh Circuit in Total Ser- holding point vices limited its DHSS in its termination letter on this to cases involved state- clause, arising opposition under the but that by Gilooly ments made in his MCHR com- by precedent holding court was bound plaint investigator and to an from the DHSS's protected activity even false statements were Rights, assigned Office of Civil who was to participation under the clause. 221 F.3d at investigation light Gilooly's conduct an (citing Pettway, 411 F.2d at Our complaint (Appellant's App. to the MCHR. at view, today rejects court and concludes 93-94, 180). likely These statements should instead that false statements in an EEOC in- analyzed participation under the clause. vestigation grounds can be for dismissal. Servs., Inc., Sys. See Clover v. Total Ante, at 740. (11th Cir.1999) (holding 1352-53 investigator statements made to internal conclusion, explaining In its the Board rea- employer investigation were made in an "un- soned: subchapter’' der this where does [I]t not make sense for two different EEOC); pursuant charge women, filed with Ab- one who since March 2001 was Co., bott v. Crown Motor patching up marriage, engage her coordinated detailed fictional account of *11 very Gilooly “lied about matters found that others,” personal deeply
serious and “need not be forced to
and that the DHSS position some-
employ in such a sensitive high willing- has shown a level of
one who and in formal situa- persistently
ness to lie (Id.).
tions about such serious matters.” discharged Gilooly on
The DHSS based faith founded belief that good
its and well statements, and not “be-
he made false opposed”
cause he has unlawful or “because he has made a practice
ment testified, assisted, participated
charge, manner” VII, scope
Title of those clauses is Therefore, I today by the court.
defined affirm of the district
would
court. VANDENBOOM, Appellant,
David W. BARNHART, Anne B.
Jo Commis-
sioner, Security Admin- Social
istration, Appellee.
No. 04-3167. Appeals,
United States Court of
Eighth Circuit. March 2005.
Submitted: Aug.
Filed: [Gilooly] only mantically sexually relationships involved. their if had More- over, responses [Gilooly's] repeated explanation that been friends with them. Their psychotic are extreme for two women who have sim- the women were and delusional is evidence, up by any objective ply [Gilooly’s] helpfulness backed misunderstood sympathetic ear. Their reactions are medical or otherwise. (J.A. typical people more who had been ro-