Sandra BREEDING, Appellant, v. ARTHUR J. GALLAGHER AND CO., Appellee
164 F.3d 1151
8th Cir.
1999
Check Treatment

*4 ARNOLD, BEAM, Before RICHARD S. HANSEN, Judges. and Circuit HANSEN, Judge. Circuit Breeding appeals Sandra district grant summary judgment court’s in favor Gallagher (Gallagher) and Arthur J. Co. employment discrimination case. We part. affirm in part and reverse I.

Viewing light in the the evidence most Breeding, we favorable to Ms. as must in this context, summary judgment in- record following: Gallagher cludes the hired Ms. Breeding Representa- as a Customer Service (CSR) years tive in 1986. She was old at purchased company that In time. integrated large another firm and number newly acquired firm managers from the business, existing including into Gallagher’s Sandy Don who Chase and Gross became Breeding’s supervisors. Ms. new Other su- pervisors hierarchy in the above Breed- ing period time during the relevant were Joel Carlson, Caveness, Agnew. Lance James point contends that from that on, developed company hostile atmo- Breeding presents affidavits of other in which she sphere of discrimination unfairly CSRs, yelled they subject at and criticized. On often who assert were also to a evaluation, she wrote performance discriminatory atmosphere her 1990 and felt that the being singled out be- that she felt she was company was hostile toward women. One (Appellant’s oldest cause she was the CSR. asserted that Area President CSR James 145.) complains supervisors App. at She Agnew year met with the CSRs once a to ask failed to address this Caveness Carlson company things how the could make better at her to take back the concern and even asked work, many complained while about statement. managers supervisors treatment their supervi- Chase), contends that her (including Agnew Don failed to inves- sor, Chase, language, Don used offensive tigate remedy complaints. or seek to their comments, sexually inappropriate made say She also overheard Joel Caveness that he on a genitals fondled his front of her had “hired one CSR because she had nice deposition continuous basis. In her testimo- 102.) legs.” (Appellant’s App. at Sandy ny, “talked to she asserts 14, 1995, meeting July In a on Ms. Breed- it, just that is about and she said [Gross] Sandy ing says Gross and Joel Caveness (Id. 64.) way he is.” at com- confronted her with and her for her berated plains young, treated attractive Chase *5 typing getting along errors and for not with favorably than he her. more treated CSRs people. certain asserts that at She one Breeding also asserts that Chase denied “ asked, point, longer Caveness ‘How much by promotional opportunity hiring a a her you you ... do want to work? know [W]e male, Bickel, young instead of Ms. John you going to that are old and are not be here Breeding position fill the of Ms. Debbie to 71.) longer.’” (Appellant’s App. at much Breeding Ferger, a woman for whom Ms. meeting in tears She left the and returned past. had done work in the Ms. Breed- some following Monday resignation with her the required Bickel from ing was to do work for letter, time, In thé she stated that she was get along but unable to letter. time to she was that Breeding badgering” with him. Ms. contends about resigning well due “constant along yelled getting errors, errors, at her for not bookkeeping Mr. Chase typographical 1992, with Bickel. in he told her he Once conflicts; she personality and and because Breeding thought the reason Ms. and Mr. trained, up- an properly not did not have was along that Breed- get Bickel did not was terminal, computer get and did not a to-date ing enough mother. was old to be Biekel’s resignation Additionally, her letter raise. that complained of Don Chase’s statement contends that she was de- resignation enough until was old to be Bickel’s mother. nied raises from 1992 her she any 1995. states that she is unaware of Breeding’s resignation She letter concluded raises, yearly who did not receive other CSR following “I have with the statement: had the record that she was not evalu- but shows enough harrassment and discrimnation [sic] ated in 1993 and that 15 others were also (Id. my at [sic].” that health can take [sic] denied raises in 1994. Ms. com- 163.) letter, she presenting After was plains perfor- that held she was to stricter Gross, by Sandy car who said escorted to her younger than mance level other CSRs. She things told to do these that was “[s]he severely that she was treated contends 83.) (Id. Breeding].” at [Ms. committing typographical account- minor Breeding brought against suit Galla- errors, knowledge ing for her lack of about employment on gher, alleging discrimination business, the and for her trouble insurance age, in the basis of her sex and violation handling computer programs. various She 1964, Rights Act of 42 Title VII of the Civil complains training that denied 2000(e)-2(a) (1994); Age § the Dis- U.S.C. computer did not have a until her last six (ADEA), Employment Act 29 crimination job. says supervi- months on the her She 623(a) (1994); Hu- § and the Missouri U.S.C. critical, merely was not but sors’ conduct (MHRA), Act Mo. Ann. Stat. Rights man demeaning threatening, the and that (West 1996). Specifically, § she al- 213.055 training younger employees given more were treatment, discriminatory leged hostile opportunities. and more (1989), indirect evi- or the environment, 104 L.Ed.2d 268 dis- and constructive

work McDon- dence, burden-shifting framework of working conditions. charge due to intolerable Green, 792, judgment, and 411 U.S. summary Corp. v. Gallagher Douglas moved for nell (1973). motion, 1817, con- granted 802-03, the court 36 L.Ed.2d the district 93 S.Ct. presented had cluding that Ms. evidence puts forth direct plaintiff “When reasonably support her sex], criterion, evidence age sufficient [or such as illegal Breeding appeals. claims. Ms. decision to termi- employer’s in the was used apply the standards plaintiff,” nate the we

II. Hopkins, v. in Price Waterhouse enunciated grant Rights Act by § de novo a sum the Civil We review 107 of as modified 2000e-2(m). using same standards as mary judgment, 1991, § Fast v. 42 U.S.C. Lynn v. Deacon applied. Co., 885, court the district F.3d Southern Union Campus, Med. Cir.1998). ess Ctr.-West Price this modified Water- Under (8th Cir.1998). “Summary judgment is standard, liable for dis- a defendant is house evidence, light in the if the viewed proper upon proof direct evidence crimination nonmoving party, dem favorable to the most of a acted on the basis employer that an genuine there no issue as to is onstrates motive, discriminatory proof moving party any fact and that the material the same decision employer have made would a matter of law.” judgment as is entitled to only discriminatory motive is rele- absent 56(e). Id.; also Anderson Fed.R.Civ.P. See remedy. determining appropriate vant Inc., Liberty Lobby, 477 U.S. 247 - See id. (1986). Sum 91 L.Ed.2d 202 106 S.Ct. put plaintiff is unable to When granted be mary judgment seldom should age discrimi or sex forth direct evidence inferences are of cases where discrimination nation, analysis burden-shifting apply claim, “summary the basis of ten requires *6 Douglas, which first of McDonnell granted unless the judgment not be should prima facie demonstrate a plaintiff the any support reasonable evidence could not 890, Id. at 93 S.Ct. case of discrimination. Lynn, 160 F.3d inference” of discrimination. 1817; v. Investment Ad see also Rothmeier at 486-87. (8th 1328, visers, Inc., 1332 n. 5 85 F.3d employ- an makes it unlawful for Title VII Cir.1996) apply (explaining that we against employee an on the er to discriminate in Title cases and the framework in both VII of, among things, the individual’s basis other context). prima The elements of a ADEA 2000e-2(a)(l). § See Oncale sex. 42 U.S.C. vary slightly are inflexible and facie case not Servs., Inc., 523 U.S. v. Sundowner Offshore Hind specific facts of each case. with the 1001, 75, 998, 140 L.Ed.2d 201 118 S.Ct. 986, Corp., 145 F.3d 990-91 man v. Transkrit (1998). it for The ADEA makes unlawful Cir.1998). (8th Breeding demon must the of an to discriminate on basis employers (1) protected the over 40 that she is within age if that individual is strate individual’s 631(a). 623(a)(1), (2) class; perform §§ years qualified old. 29 U.S.C. that was she Exch., (3) Ins. 161 also Denesha v. Farmers job; See that suffered an adverse her she Cir.1998). (8th 491, analysis (4) “Our F.3d 497 action; that nonmem employment both the state and federal is the same for in (persons under 40 the bers of her class decisions under the various claims because gender in opposite the ADEA context or of employment discrimination statutes federal context) the Title VII sex discrimination applicable and authoritative under are Kneibert v. treated the same. See were not feder- Rights Human Act as well as Missouri Inc., 129 Newspapers, Michigan Thomson Potosi, Finley Empiregas, Inc. al law.” v. Cir.1997) (8th 444, (defining the 451 n. 4 F.3d Cir.1992) (internal (8th 467, 975 F.2d 473 context); ADEA prima facie case omitted). quotations and citation 612, Cos., F.3d Lyoch v. Anheuser-Busch 139 Cir.1998) (defining prima facie Breeding first contends that she context). then The burden case in Title VII of sex and has made out a submissible case legit employer to the to demonstrate shifts age under either the direct discrimination imate, ad nondiscriminatory reason for the of Price Waterhouse evidence framework Fast, action. See employment verse Hopkins, 109 S.Ct. 490 U.S. employer resigned, If the articulates car after she Gross said she was at 890. F.3d. reason, then demon- plaintiff must things” Breeding. such “told to do these to Ms. employer’s stated reason is that strate We conclude that Ms. has reason for the pretextual and that real presented not a submissible case of either employment action was employer’s adverse age direct or indirect evidence of either id.; age discrimination. unlawful or sex See her, against sex discrimination because she Douglas Corp., F.3d v. McDonnell Hutson any has not that she demonstrated suffered (8th Cir.1995). differentiating “In employment adverse action.1 None of the age and indirect evidence of between direct support statements listed above of her must, discrimination, part, distinguish any process were claims related to decisional which demonstrate discriminato- comments adversely that Breeding’s affected Ms. em ry process in the decisional from animus ployment. To that demonstrate she suffered stray workplace, in the statements remarks action, nondecisionmakers, by employment deci- or statements adverse pro- unrelated to the decisional harshly sionmakers asserts that more she was treated (internal Fast, quota- at (all cess.” younger than men or the CSRs of whom omitted). women) tions and citations typographical errors, were for ac errors, counting socializing, that she following that the contends allowed to take vacation time to care evidence of nine incidents amount direct injured record, however, for her The son. (1) age Bask- sex and discrimination: Susan shows she was allowed to take all of her Gallagher ett observed that hires female (see (2) attractive; Supp. vacation time when she wanted it young who are CSRs 174-75), App. at all CSRs were criticized Bridget Hawkins stated that she recom- (see 95), socializing but position Appellant’s App. mended a male for vacant CSR at said, Sandy “I’d be afraid to hire a merely Gross speculating and that she was or as position, male for a CSR because he would be suming younger had not been CSRs (3) Bridget likely quickly;” to advance too typographical accounting criticized for an incident Area Hawkins described where (see 250). Supp.App. errors at Ms. Breed joked Agnew President that he liked to Jim ing’s performance consistently in evaluations subservient, keep the women and Hawkins field, knowledge dicate she lacked in the favorably treated less after asserted she was skill, lacked technical and failed to meet her (4) conduct; complained Kathy about the training objectives. Breeding complains *7 Papcun hiring manager, said one Joel Cave- trained, properly that she was not but admits ness, stated he hired a CSR because she had go she did. not to the seminars and classes (5) legs; Papcun nice also said heard she required and she was to attend admits she joke managers Sandy that she male Gross typographical, grammatical, and committed (6) tall, pretty, girls; should hire blonde' bookkeeping Breeding-suffered Ms. errors. Sandy supervisor, stated her Joel Gross “yelled being than no adverse actions other Caveness, job appli- wanted to know whether making. at” for these errors that she admits (7) attractive; Breeding cants were stat- that she suf- Breeding also contends Chase, angry supervisor, her Don became ed employment fered an adverse action when getting along Bickel that she was not with discriminatorily promotion a she was denied aloud whether it was because and wondered salary The one in and increases. instance mother; enough she was old to be Bickel’s pro- a which she asserts she was denied (8) meeting at the final between Ms. Breed- opportunity motional was when John Bickel Gross, Caveness, ing, Sandy and Joel Cave- (a right college) hired young male out of was longer much wanted to ness asked how she position. Breed- Ferger’s to fill Debbie work, you because “we know are old and (9) position thought and ing applied had for the going longer;” much as to work here candidate, despite qualified the more Sandy escorted Ms. to her she was Gross below, discharge satisfy it the reasons stated a could the discuss here. For 1. While constructive action, employment support adverse element of an her claim of con- the evidence fails to Breeding’s discharge reject Ms. constructive discharge. structive opinion so there is no need to claim later in this 1158 liability subject employer to vicarious An is that con- indicated

performance evaluations employee for an actionable knowledge techni- to a victimized her lack of cern over by supervi- created Breeding was re- hostile environment Although Ms. cal skills. (or successively higher) of the duties of with immediate in do some sor quired to fill absent, employee. When no Ferger authority the when Ms. was over position taken, on this record action is de- tangible employment not demonstrated she has position. See qualified may for the an affirmative fending employer raise she (noting plaintiff must Lyoch, damages, subject 139 F.3d at 614 liability or defense to in to make qualified evidence, is order she demonstrate of the proof by preponderance claim). record failure-to-promote The 8(c). aout The defense Rule Proc. see Fed. Civ. indicate that the (a) no evidence to contains necessary elements: comprises two by a Bickel was influenced to hire decision reasonable employer exercised rather discriminatory animus toward women any promptly prevent and correct care to qualifications. respective applicants’ than the (b) behavior, sexually harassing unreasonably employee failed plaintiff discrim- that she was asserts any preventive or advantage of to take until inatorily from 1992 denied a raise provided opportunities corrective record, According in resigned 1995. avoid harm otherwise. employer or to a raise October received — until again Janu- 1992 and was not evaluated Ellerth, Indus., Burlington Inc. v. U.S. received a substantial ary but she 2257, 2270, --, -, 141 L.Ed.2d 118 S.Ct. re- in 1993. She did not bonus Christmas Raton, (1998); City Boca Faragher v. 633 — following her 1994 evaluation. ceive a raise -, ---, 118 S.Ct. U.S. Contrary that she was to her assertion (1998). 2292-93, Harass 141 L.Ed.2d 662 raise, only employee did not receive who sex, in an individual’s violation ment based on supervisor including her fifteen ADEA, VII, age, in of the others — of Title violation Bickel— Sandy young and the John Gross is actionable when that harassment “so is Ten of received no raise 1994. likewise pervasive’ as to ‘alter the condi ‘severe or Fur- employees were males. those fifteen employment and create tions of the victim’s ” thermore, com- of the nine incidents or none Faragher, working environment.’ abusive by supervisors support listed above ments at -, (quot at 2283 U.S. S.Ct. - alleged claim direct evidence are of her Vinson, Bank, FSB v. ing Meritor Sav. salary any relation to the decision-mak- have 57, 67, 91 L.Ed.2d 49 U.S. 106 S.Ct. such, stray they are ing process, and as omitted); (1986)) (other quotations internal incidents which do not remarks or isolated Oncale, 75, 118 at see also 523 U.S. S.Ct. See On raise an inference of discrimination. Inc., Sys., (quoting Harris Forklift cale, 75, 118 (noting in S.Ct. at 1002 U.S. 17, 21, 114 126 L.Ed.2d 510 U.S. S.Ct. Title context that a statement includ VII actionable, (1993)). harassment To be ing a comment is not evidence sex-related objectively subjectively both must be persons one sex are discrimination unless *8 offensive, person that a reasonable such employ disadvantaged in of their the terms abusive, it to be hostile or would consider the of their sex while members ment on basis “by determination look and courts make this not). Thus, the other are Ms. Breed of sex circumstances, including ing at all the the not reflect ing’s failure to receive a raise does conduct; discriminatory frequency its of the discriminatory part the of a attitude on threatening severity; physically it is whether Gallagher. utterance; humiliating, a mere offensive or unreasonably interferes with and whether it Next, Breeding asserts she employee’s performance.” Faragh an work Gallagher claim that presented a submissible — (inter er, at -, 118 at 2283 U.S. S.Ct. subjected working environ her to a hostile omitted). “[SJimple teasing quotations nal age due to her and sex. The district ment comments, ... and isolated incidents offhand order was written without the benefit court’s serious) (unless extremely will not amount to enunciations of Supreme of the Court’s latest discriminatory changes in the terms and con for an actionable hostile envi the standards (internal quota- employment.” Id. ditions of case. ronment harassment omitted). cient a matter law to “[Sporadic use of abusive as of constitute action- tions jokes, gender-related and occasion- language, able sexual harassment. Rorie v. United Cf. ordinary teasing” Serv., Inc., (8th are “the tribulations of 757, al Parcel 151 F.3d 762 such, they do not workplace,” and as Cir.1998) the (holding, say “we cannot that a Id. at amount to actionable harassment. supervisor pats employee a who female on (internal 2284, quotations 118 2275 S.Ct. back, her, up against the brushes and tells omitted). good her she smells does not constitute sex- law”). insufficient evi ual as a matter of Ac- There is this case harassment age on the of cordingly, respectfully dence of harassment basis conclude that the specific age-relat support a claim. The two by granting summary district court erred by supervisors ed comments Chase judgment Breeding’s on Ms. sexual harass- (one made in 1992 and Caveness statement ment hostile environment claim. 1995) incidents and the other in were isolated Breeding’s final claim is that derogatory sufficiently not or demean were constructively discharged. she was To show ing permit finding they altered the discharge, plaintiff “constructive must show employment. Breeding’s of Ms. terms just by more than a Title VII violation her unfairly criticized and felt she was employer.” Phillips Corp., v. Taco Bell 156 at, conditions, yelled while often but these (8th Cir.1998). 884, “A F.3d 890 constructive desirable, not amount to actionable not do discharge employer an occurs when renders age. the harassment on basis of working employee’s conditions intoler The sexual harassment hostile work able, forcing employee quit.” Johnson presents troubling environment claim more (8th Cir.) 1081, Runyon, v. 137 F.3d 1083 scenario. Ms. asserts that her su (internal omitted), quotations cert. de Chase, pervisor, genitals fondled his Don —nied, -, 142 U.S. S.Ct. sexually front of her and used lewd and (1998). L.Ed.2d 217 “To constitute a con language. inappropriate She asserts that discharge, employer structive must delib while was this conduct was continuous he erately working create intolerable conditions supervisor. her states that forcing employee with the intention of complained of conduct to anoth Chase’s quit employee quit.” must Summit Gross, Sandy supervisor, er mini Gross Tool, v. S-B Power F.3d just stating, mized the conduct “that is Cir.1997) (internal omitted), quotations cert. 64.) way (Appellant’s App. at he is.” — denied, -, U.S. 118 S.Ct. Breeding presented testimony affidavit of (1998). L.Ed.2d 316 The intent element is they stating other CSRs had observed by quitting satisfied demonstration inappropriate Chase’s conduct and sexual Bros., reasonably consequence “a foreseeable comments. See Howard Burns Inc., (8th Cir.1998) (noting employer’s discriminatory of the actions.” employees other than the “harassment employee obligation Id. to act The has plaintiff pervasiveness relevant to show [is] assuming reasonably not the worst and environment”). of the hostile The other jumping quickly. too Id. to conclusions complained CSRs had about such conduct to (dis Howard, See also 149 F.3d at 841-42 president, Agnew, area vice but he James cussing defining type what recent eases deposition, Agnew In took no action. his purposes are intolerable for conditions complaints that he heard admitted had discharge). constructive language about Chase’s and conduct of fon conclude that the conditions We dling type himself. This of conduct could be *9 if Breeding complains, which even of by jury sufficiently found a to offensive to be they harass make out a basis for a sexual Breeding’s working have altered Ms. condi claim, ment hostile environment do not Howard, (“Once tions. See 149 F.3d at 840 support a amount to sufficient evidence to improper there evidence of conduct and is finding discharge. constructive We note of offense, subjective the determination of age again no evidence that or that there is whether the conduct rose to the level of discrimination, perfor sex rather than actual jury.”). largely is in the hands of the abuse prompted reprimands say problems, cannot is insuffi- mance We such conduct only an performance stage. is accusation at this It poor evaluations. The done and ideal, working atmosphere was not but “a fact, may hearing after be the trier of being unfairly [having criticized or feeling of sides, both would not believe accusation. unpleasant working difficult or endure] to jury, go my But that issue to the in should compel not as to are so intolerable conditions view, constructive-discharge theory, on the as person resign.” to Carter v. a reasonable theory. well as the hostile-work-environment Cir.1994). Ball, There similarly no evidence that Ms. is promotion age a on the basis of

was denied event, sex, any losing single in opportunity

promotional is not a sufficient quit or to constructive reason to constitute Summit, discharge. 121 F.3d at 421. See (one stray age-related two comments The 1995) were made in 1992 and one made CARLSON, Jodi Michaelle demeaning or abusive as to demonstrate so Plaintiff-Appellant, working an intolerable environment intended Finally, quit. to force Ms. al- may be from which though there evidence COMPANY; HYUNDAI MOTOR harassment, jury find could sexual con- Hyundai America, Inc., Motor alleged that the facts in this case clude even Defendants-Appellees. light in the when viewed most favorable to Breeding are not so intolerable No. 97-3103. person quit. reasonable would be forced Appeals, United States Court of III. Eighth Circuit. Accordingly, we reverse the district court’s 10, 1998. Submitted June summary grant judgment on Ms. Breed- ing’s sexual harassment hostile environment Decided Jan. 1999. summary grant judg- and affirm the claim Rehearing Suggestion Rehearing ment on all other claims. En Banc Denied March 1999.* ARNOLD, Judge,

RICHARD S. Circuit part part.

concurring dissenting today plain- trial

The Court remands for

tiffs hostile-work-environment claim based join portion

on sexual harassment. I opinion.

the Court’s agree that age

I also the evidence on the justify

claim was insufficient to submission to jury. respect constructive-discharge With discrimination, however,

claim based on sex I

respectfully dissent. all of the When evi- together, in this case

dence is considered

including pages the incidents listed on 1157, ante, grossly offensive Chase, I conduct attributed to Mr. believe jury rationally

that a could find that subjected working condi- reasonable, self-respecting that no

tions expected should be to tolerate.

woman It added, course, that the should be testimo-

ny supposed Mr. about what Chase is to have

* Judge grant petition. McMillian would