Kristen Dhyne, Plaintiff-Appellant/cross v. Meiners Thriftway, Inc., Defendant-Appellee/cross

983 (1973), purposes. First Amendment The cases it 254 and Realty Havens Corp. v. Coleman, 363, 379, 102 1114, relies organi on involve restrictions on an U.S. S.Ct. 71 L.Ed.2d case, ability convey to this message zation’s its di NFB similar, has alleged See, Cornelius, specific non-economic rectly. e.g., 473 U.S. at injury. In its Complaint, Amended NFB 788, (plaintiffs sought 105 S.Ct. 3439 to alleged that policy prevented RSB’s NFB drive); in charity Dept. participate Police “from communicating with the blind citi 92, Chicago Mosley, v. U.S. of zens of Missouri who are either unaware of (1972) 2286, 33 L.Ed.2d 212 (plaintiffs or [NFB] are unaware of the existence of a school); Forbes, sought picket to particular service, program, education, in (plaintiff at 499 sought participate in a formation or by resource offered [NFB].” debate). televised The district court More specifically, NFB alleged that use of did therefore not err in granting summary its Job Opportunities for the pro Blind judgment on NFB’s First Amendment gram by Missourians has decreased claims. 90% as a policy, of the allegation result that was sufficiently supported at III. stage threshold of the lawsuit depo discussed, For the reasons appellants sition testimony Maurer, of Marc Presi lacked standing to assert the claimed viola- Thus, dent of NFB. I read the record on tions the Rehabilitation Act of and the appeal as containing a showing sufficient court district did not err in granting sum- alleged that RSB’s violations aof federal mary judgment on their constitutional statute injured in NFB the fulfill claims. The of the court district ment of its essential charitable mission. affirmed. therefore Although I position no take on the merits claims, of NFB’s Rehabilitation Act I LOKEN, Judge, concurring Circuit in would not dismiss them for lack of stand part dissenting part. ing. join I in Part II.B. opinion. of the court’s

I agree also with the court’s articulation of of standing law Part II.A. But I agree

cannot that the National Federation (NFB) Blind allege has failed injury sufficient in fact to it stand- afford DHYNE, Kristen Plaintiff- ing challenge alleged RSB’s of violation Appellant/Cross Act. Accordingly, Rehabilitation I re- Appellee, spectfully in part. dissent In Village Arlington Heights v. Met THRIFTWAY, INC., MEINERS ., ropolitan 252, Hous. Dev. Corp. U.S. Defendant-Appellee/Cross (1977), 97 S.Ct. 50 L.Ed.2d 450 Appellant. the Supreme upheld standing Court 98-2537, 98-2538. Nos. developer non-profit challenge a mu nicipality’s refusal to rezone land for the United States of Appeals, Court racially integrated Eighth construction Circuit. housing, part prevented because the refusal Submitted Feb. 1999. plaintiff from fulfilling its charitable mis July 1999. Decided sion. The Court also that non- determined Rehearing Rehearing En Banc injury economic is sufficient to confer Aug. Denied 1999. Morton, standing in Sierra Club v. 727, 734, U.S. 92 S.Ct. 31 L.Ed.2d (1972), SCRAP, United States v. 669, 686,

U.S. 93 S.Ct. 37 L.Ed.2d MO, inadequate that she Buchanan, response Meiners’s so City, Kansas A. Mark (Steven Korey A. ar- punitive damages. Sprenger M. deserves argued brief), Kaul, Plaintiff-Appel- that, transferring Davis to a dif- gues on the Appellee. shift, situation ferent it handled difficult lant/Cross it deserves so well MO, Richmond, City, Kansas R. Douglas jury’s law. The verdict matter of $1.00 Defendant-Appellee/Cross Ap- argued, fully that it did not credit either suggests pellant. side’s evidence. LOKEN, WOLLMAN,* Before A. The Evidence at Trial. ARNOLD, Circuit MORRIS SHEPPARD two-day witnesses the first eleven Judges. during her trial She testified LOKEN, Judge. Circuit checker, cam- began a Davis a week as offensive harass- employ- paign quiet her former but sexual Dhyne Kristen sued (“Meiners”), er, Inc. Thriftway, According Dhyne, campaign Meiners ment. to of co-worker sexual asserting calling claims her offensive names such included discrimination “bitch,” “whore,” “slut,” harassment and retaliation and comment- as VII, 42 of Title U.S.C. violation ing crudely parts body, making on of her seq., 2000e et §§ and the Missouri Human noises, if she moaning asking sexual (“MHRA”), Rights Act Mo.Rev.Stat. nude, inviting perform tanned in the her to seq. trial, 213.010 et jury §§ After a sex, ignoring repeated re- oral and her a granted judgment court1 as mat- district stop April, to the harassment. In quests Dhyne’s claims for dismissing ter of law Dhyne complained manager to assistant The punitive damages and retaliation. Watson, who assured her he would Tom Dhyne in nominal com- awarded $1.00 of that speak to Davis. Within a week on claim for hostile pensatory damages her complaint, Dhyne told Watson that Davis environment sexual harassment. work harass, continuing to and Watson said Dhyne the district court’s refusal appeals Rather again speak he would to Davis. punitive damages to submit' and retaliation improve, than Davis’s conduct worsened— jury. cross-appeals to the Meiners arm, began pinching Dhyne’s brushing he a grant court’s refusal behind, lifting legs her of her harassment matter of law on the sexual shorts. evidentiary an party appeals claim. Each June, early Dhyne again complained affirm. ruling. We Watson, accompanied by Stacy Napier, I. Harassment Issues. Sexual previously complained a checker who had inappropriate conduct Davis. Wat- at the Mein- Dhyne worked as a checker responded son he had recommended Davis family-owned grocery in Kansas ers store later, days seeking fired. A few after City from mid-March to late October 1996. attorney, Dhyne complained an help from period, For the first three months of that continuing of the harassment to Dan Mein- Dhyne alleges young that a African-Amer- ers, Davis, operations. director of store Meiners sacker, grocery Rodney ican sub- speak said he would to Davis. On June jected quiet persistent her but sexual a told Watson and then tearful harassment and Davis denied ha- abuse. that Davis’s harassment was con- Meiners rassing Dhyne making and accused her of tinuing. immediately ar- transferred racially complaints. motivated shift, night where he had no gues the harassment was so severe and Davis to * GAITAN, Judge J. Roger Chief of the 1. The HONORABLE FERNANDO L. Wollman became JR., Eighth Judge Appeals for the United States District lor the West- United States Court of April ern of Missouri. Circuit on 1999. District evening man- shift that did not Dhyne. night overlap contact with The shift the shift June, by Dhyne. Davis later but he was worked ager fired September rehired in different shift Legal B. The Environment. “When questioned worked. than She workplace permeated is with discrimi made no further com- being rehired but intimidation, ridicule, natory and insult harassment. plaints of sexual sufficiently pervasive severe or employ alter the conditions of the victim’s present Five other and former non-su- working ment create abusive envi trial, pervisory employees testified at the ronment, Title Vll is violated.” v. Harris sacker, including three checkers and one Inc., 17, 21, Sys., U.S. Forklift Eric heard or saw Davis Norton. None S.Ct. 126 L.Ed.2d 295 sexually offensive comments or ac- direct Supreme recently Court at discussed Dhyne. Napier toward testified that tions length an employer’s liability vicarious encouraged Dhyne to to man- complain she a hostile work environment created because, agement previ- when Davis had Ind., supervisor. Burlington See Inc. ously sexually made offensive and deroga- Ellerth, U.S. Napier, complained she tory comments to (1998); Faragher L.Ed.2d 633 v. City Meiners, promptly apol- to Dan and Davis Raton, Boca 524 U.S. 118 S.Ct. Napier again. and never harassed ogized (1998). L.Ed.2d 662 This is different All of these witnesses described type of ease because it involves harass a difficult and divisive co-worker. ment a non-supervisory co-worker. Manager Assistant Watson testified that long recognized Our court has that an Dhyne repeatedly complained of sexual employer may directly be liable for such April harassment between Davis if it harassment knew or should have said he confront- mid-June 1996. Watson known of the conduct and failed to take complaint. ed after Davis each Davis de- proper remedial action. v. See Callanan Dhyne. him harassing nied Watson “told (8th 1293, 1296 Cir.1996); Runyun, 75 F.3d if happening, you this is better cut it out or Co., 1010, v. Hall Gus Constr. 842 F.2d job.” you’ll your Dhyne’s lose After third (8th Cir.1988). 1015-16 complaint, talked to Watson Dan Meiners. In Congress amended Title complaint, After the fourth Watson recom- provide punitive damages for if a VII mended to that Davis be fired. Meiners intentional, in private employer engages that, Dan Meiners testified when unlawful discrimination “with' malice or him complained of sexual harass- federally with reckless indifference to the ment, harassing he warned Davis that be- protected rights aggrieved of an individu havior would not be tolerated. Davis de- 1981a(b)(l). § al:” 42 The U.S.C. Su allegations, adding that nied the preme recently Court clarified the stan him. something against had On June punitive damages for awards of under dard Dhyne complained when that the harass- “provides punitive this statute. It for continuing, ment was Meiners decided solely employer’s based on an state awards Davis, fire Davis. He confronted who not ‘malice’ of mind.... The terms or ‘reck but only Dhyne’s allegations denied also pertain employer’s to the less indifference’ Dhyne’s complaints told Meiners that were knowledge may acting that it in viola racially motivated. Faced with that dilem- law, tion of federal not its awareness ma, Meiners testified that he instead engaging it is in discrimination.” Kolstad night transferred Davis to the shift where —Ass’n, U.S. —, v. American Dental with he would have no further contact — — (1999). L.Ed.2d 119 S.Ct. later, days fired Dhyne. Four Davis was Judg C. Meiners’s Claim for failing report night to the shift. He ap- ment as a Matter of Law. Meiners September was rehired late to work an judg Dhyne’s complaints. Though court’s denial of credited he peals the district situation, Dhyne’s remedy hostile ment as a matter of law failed to he warned claim, arguing that it eventually urged work environment Davis to behave and reasonably prompt took remedial action Dan responded Davis be fired. calculated to end the harassment.2 This is decisively Dhyne complained when to him effectively Dan Meiners question. a close management in June 1996. The Meiners when remedied the situation mid-June may excessively delayed, it but was Davis to another shift. The he transferred guilty acting of “with not malice or remedial action is Mein- problem with this reckless indifference.” Varner v. Na See cases, delay taking many it. ers’s Markets, Inc., Super tional requirement employer properly that an (8th Cir.1996), denied, cert. 519 U.S. remedy harassment must co-worker sexual 117 S.Ct. 136 L.Ed.2d 835 Here, delay. example, tolerate some (1997). Likewise, Meiners’s conduct was harassment, alleged Davis denied the “outrageous not because of evil motive [its] employee no other corroborated rights or reckless indifference to the complaints physical rather than verbal others,” punitive damages standard employer An harassment. must be al Griffith, under MHRA. Burnett gauge credibility lowed some time to (Mo. 1989). S.W.2d banc complainant and the seriousness of the II. if Supreme situation we are to observe the Retaliation Claim. caution that Title “a Court’s VII is not Both Title the MHRA VII and general civility code for the American prohibit against employees retaliation who workplace.” Oncale v. Sundowner Off complain of discrimination. See U.S.C. Servs., Inc., 75, —, shore 523 U.S. 2000e-3(a); § § Mo.Rev.Stat. 213.070. 998, 1002, 140 L.Ed.2d Dhyne argues the district court erred in Nonetheless, there was evidence of unac dismissing her claim that she was termi ceptable delay. Assistant Manager Wat 24, 1996, nated on October in retaliation son testified that he had authority the complaints for her of sexual harassment. jury fire. A hire and reasonable could find review de We novo the district court’s delayed that Watson should not have two law, grant judgment as a matter of taking months before him effective action applying by the same standard used the bringing Dhyne’s repeated self or com Manning Metropoli district court. See plaints to Dan Meiners’s attention. Be Co., (8th tan Ins. 127 F.3d Life Dhyne sought only cause damages, the Cir.1997). Judgment aas matter of law is jury’s one dollar award was in nominal appropriate legally if “there is no sufficient essence a verdict in favor of Meiners. The evidentiary for basis a reasonable in upholding district court did not err that find for” the non-moving party. Fed. verdict. 50(a)(1). parties R.Crv.P. When the Dhyne’s record,

D. Claim for Punitive full developed a trial we are not Damages. Dhyne argues plaintiff’s prima the district concerned with facie case. relevant, court punitive should have submitted her at point, simply “What is this is damages jury. disagree. claim to the plaintiffs We whether permits evidence a There was no evidence suggesting evil mo reasonable inference of discrimination.” Ford, Inc., tive or an intentional violation of federal Estes v. Dick Smith 856 F.2d (8th Cir.1988). by law management. the Meiners Watson (8th Cir.1997). appeals pre- Triangle, 2. Meiners also the denial of its 121 F.3d summary judgment trial motion for on this We instead review the denial of as a ruling by denying giving issue. "A a district court matter of law the verdict a deferential summary judgment interlocutory in nature standard of review. See Johnson Int’l Co. v. Co., appealable and not a after full trial on the Jackson Nat’l Ins. F.3d 434- Life (8th Cir.1994). Metropolitan merits.” Ins. Co. v. Golden Life job Dhyne prove that he saw on the failed to Dan Meiners testified —and Dhyne deli food and a drink into the discharge pretextual. take stated reason for during for it a paying room without Dhyne eating paying break denied food without mid-day instructed Wat- break. Meiners day. for it that But denial stand- Dhyne until left the store after son to wait ing alone is not evidence Dan Meiners shift, for verify paid her whether she if charge. Even Meiners was fabricated food, her if did not. and terminate she mistaken, a number of witnesses corrobo- afternoon, Dhyne left the store that When testimony verify rated his that he tried to paid any Watson confirmed she had not for Dhyne whether had food eaten without day, caught up that her outside food paying Dhyne for it. further accuses store, taking and terminated her for changing story Meiners of at trial trial, paying Dhyne without for it. At food advancing poor performance her work eating any day except denied food that an additional reason for the termination. began. donut before her shift Watson tes- many employees But testified that tified that when he confronted out- increasingly an became difficult and divi- store, forgot side the she first said she presence sive in the work force after Mein- pay for the lunch. complaints her ers remedied of sexual Meiners would not harassment. virtually introduced no evi employer to terminate an unsatisfac- linking dence the termination to her earli tory employee committing infraction complaints er of harassment. Her last might be tolerated others. The complaint sexual harassment occurred incident 24 may food on October well have mid-June; she was terminated late Oc been, in colloquial parlance, “the straw alone, Standing gap tober. a four-month that broke the camel’s back.” That does “weakens the inference of retaliation prove discharge not this stated reason for retaliatory shortly arises act occurs when pretext was a retaliation discrimina- complaint.” after a Smith v. Louis St. Compare tion. Rath v. Re- Selection Cir.1997). Univ., (8th F.3d (8th search, Inc., 1089-90 Here, gap time is reinforced other Cir.1992). any inference undisputed refuting, evidence mid-June, of a causal link. Evidentiary III. Issues. responded Dhyne’s complaints by trans Davis, firing Dhyne ferring and then while court Dhyne argues A. the district disciplined. was neither criticized nor refusing erred in to allow her to read Dan Dhyne responds disciplined that she was deposition testimony Meiners’s into evi- unfairly and treatment denied favorable during dence her case chief. Meiners ways after June 1996. But no several testify. Dhyne available to declined to was of dis supported other witness her claims witness, him a live and he call testified treatment, parate and all her co-workers Dhyne a for the defense. ar- as witness Dhyne persistently that a testified Rule gues ruling the court’s violated Thus, her eonclu employee. troublesome 32(a)(2) of Pro- of the Federal Rules Civil sory, unsupported assertions that she was cedure, deposition that the provides which unfairly do not raise an inference treated “may be used party’s corporate of a officer of retaliation discrimination. See Felt party any purpose.” an for adverse (8th Sieben, 970, mann v. 108 F.3d — denied, U.S. —, Cir.1997), Many judges require that cert. trial (1998). live, 851, 139 if deposed testify L.Ed.2d 752 a witness available. S.Ct. practice The reason for the is clear: contrast, By legiti- a Meiners articulated mate, Dhyne’s proclaimed Learned Hand the de- nonretaliatory Judge reason best, not to be company position violated a rule to be “second termination.—-she If original is at hand.” employees pay they that must for food eat used when agree I cannot with the always jury respect, if the With possible, it is better person court that no reasonable could have the witness firsthand can observe that Mr. Meiners found on this record judge his or her demeanor. discharged Dhyne Ms. retaliation for (1st G, Inc., 1, Loinaz v. & 910 F.2d EG complaint Mr. Davis’s be- making about Cir.1990); see 8 Weight, MaRous, & MilleR havior. § 2142 FedeRAL Practice Procedure & possibly cannot cause practice an inference that an order raise party wishing prejudice, unfair because the employment motive animated an improper testimony can call the deposition action, to use plaintiff produce all that a has to is live, him impeach professed witness adverse evidence that the defendant’s is, deposition necessary, question falsely if and even that pretextual, pro motive was using questions Ryther the witness the exact same v. KARE 108 F.3d fessed. See (en (8th Cir.1997) banc), Thus, deposition. though ar cert. asked at the 836-38 denied, guably language inconsistent with the of 521 U.S. (1997). Here, 32(a)(2), party from L.Ed.2d 1013 there was evi precluding

Rule dence, Dhyne’s in the form of Ms. testimo reading deposition testimony of ny, that the act on which Mr. Meiners said at worst party available adverse witness is Dhyne he based his decision to fire Ms. harmless error. See Crimm v. Missouri (8th Cir.1984). in fact It R.R., never occurred. seems me Pac. 750 F.2d inescapable person that a reasonable who Dhyne suggests practice is reversible believed Ms. could infer that Mr. courts, citing error in Missouri state Hen for termi Meiners fabricated his motive Washington son v. Board Education nating Dhyne’s employment. Ms. The in (Mo. Dist., School 948 S.W.2d 210-11 hardly inescapable, ference is but it itself However, App.1997). governs federal law permissible. procedural issue. argues B. testimony Meiners the district court The court alludes to from wit by excluding person- abused its discretion nesses that corroborated Mr. Meinérs’s employers nel records from three other testimony verify that he tried to when Ms. in- allegedly Dhyne’s evidence chronic paying had eaten food without ability But, cooperate with her co-workers. it. in the place, court does E.I. du de any See Pont Nemours & Co. v. not indicate there was evidence (8th Co., Berkley & that in fact tended to that Ms. show Cir.1980) (standard review). way acted in the that Mr. Meiners claimed. offered this evidence to show that if fundamentally, More even there was pretext testimony, termination was not a for retalia- such would be free to it, tion discrimination. We decline to consid- leaving disbelieve intact the inference er prevailed this issue. As Meiners has telling that Mr. Meiners was not the truth. claim, any evidentiary the retaliation error sufficiently That inference would strong obviously carry day Dhyne. harmless. for Ms. Knei Cf. Newspapers, Michigan, bert v. Thomson The of the district court is (8th Cir.1997) (Mor Inc., appeal affirmed. The costs of are taxed Arnold, J., Sheppard dissenting). ris against appellant Dhyne. See F.R.A.P. 39(a). factual mix When one adds changed Mr. evidence that ARNOLD, MORRIS SHEPPARD story why Dhyne, about he terminated Ms. Judge, dissenting. Circuit it is hard to resist the conclusion I concur in all of opinion the court’s inference raised Mr. Meiners was except the of it that portion upholds telling not the truth. The court’s discus- certainly district court’s decision not to submit Ms. sion makes out an excellent case Meiners, jury. claim all it retaliation to the for Mr. but the end does light in a most the evidence is summarize might him. well be that

favorable to It would point for Ms. on this

verdict indeed, it surprising; would

have been was, surprised me. But case, record, entitled to have the seemed to it to be proof

believe whatever

entitled to credit. from the respectfully

I therefore dissent to Ms. respect

court’s decision claim.

Dhyne’s retaliation

Floyd CAMPBELL, Appellant, PURTLE, Individually R. and in

James Capacity as Chief of Po-

his Official City Hope;

lice for the Catherine

Cook, City Capacity in her Official

Manager City Hope; for the Arkansas,

City Hope, Appellees.

No. 98-4149. Appeals, States Court of

United Eighth Circuit. Almand, Rock, AR, William G. Little Submitted June 1999. argued, Appellant. Rock, AR, July 1999. Decided North Little Perry, Shane

argued, Appellee. BEAM and Before MORRIS ARNOLD, Judges, SHEPPARD Circuit PANNER,1 Judge. District BEAM, Judge. Circuit A an at-will em- police officer who was brought this section 1988 action and ployee against claim wrongful discharge law state he was city employer, alleging that discharged public policy in violation of Panner, sitting by designation. gon, 1. The Honorable Owen M. United Judge States District for the District of Ore-

Case Details

Case Name: Kristen Dhyne, Plaintiff-Appellant/cross v. Meiners Thriftway, Inc., Defendant-Appellee/cross

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 24, 1999

Citation: 184 F.3d 983

Docket Number: 98-2537, 98-2538

Court Abbreviation: 8th Cir.