*1 question qualified immunity, to the in-
cluding supported whether facts light
record and viewed most favor- supported
able to Marksmeier a claim of a Thus,
constitutional violation. the district
court did not abuse its substantial discre-
tion in granting protective order.
III.
Aсcordingly, we affirm5 the district grant summary judgment
court’s to the
defendants, its denial of the motion for time,
enlargement grant its
protective order. SMITH, Appellant,
Dru D.
HY-VEE, INC., Appellee.
No. 09-2631.
United of Appeals, States Court
Eighth Circuit.
Submitted: March 2010.
Filed: Oct.
Rehearing and En Rehearing Banc
Denied Dec. 2010.* * 5. On the basis of our Judge Murphy affirmance of the district Judge Bye grant would case, court's including actions petition rehearing en banc. summary judgment, we find Mark- procedural smeier’s pro- and substantive due cess claims to be meritless. *2 harassment, refusing
sexual and to judg- Smith new trial. We affirm the ment.
I facts, The reveals the following record in light taken most favorable to Smith. employed by Hy-Vee Smith at its was Englewood City, in Road store Kansas Missouri, 2004 August from June to departments She worked in various until late 2005 when she was transferred to the bakery. employed bakery, in the While frequently Smith worked with Sherri Lynch, a cаke decorator. During time, Lynch rude, engaged vulgar, sexu ally charged behavior toward Smith. In February Lynch or March of told Buchanan, argued, Alan Mark Kansas fingers Smith place to two next to hers. MO, City, appellant. Lynch her fingers against then rubbed fingers Smith’s and told “[t]hat’s Smith DeVeney, argued, M. Chad Jeannie what a penis April feels like.” From brief, Beaver, Kansas Christian on August Lynch genitalia molded MO, for City, appellee. face, dough, out of shoved them in Smith’s ARNOLD, BYE, and Before they and if she asked Smith knew what COLLOTON, Judges. Circuit May were. Smith observed Lynch “dry humping” Hy-Vee a male PER CURIAM. left, manager. After the manager Smith against D. brought Dru Smith suit her said, Sherri, “God, like you practiсally it’s Hy-Vee, employer, alleging former Dani, raped Lynch replied him.” if I “[n]o sexual harassment and retaliation in viola- someone, rape were be going would Human Act Rights tion Missouri Lynch pushed up like then this.” Smith (MHRA), 213.055, §§ Mo.Rev.Stat. against a wall for ten fifteen seconds granted court1 213.070. district sum- body hands rubbing up while mary judgment on favor against early August Smith. sexual harassment claim. At trial Lynch sculpted penis dough out of claim, on retaliation asked Smith if it was “too big?” Addition specific excluded evidence of instances and ally, employed in the bak while Smith alleged details harassment. The ery, Lynch smacked her on the buttocks Hy-Vee. returned a in favor of verdict and, approximately times the aid six with appeals, arguing the district court employee, put of another Barbie dolls granting Hy-Vee’s erred motion for if she positions asked Smith summary judgment on Smith’s sexual claim, excluding knew positions harassment evidence of what the meant. Whipple, 1. The Dean United Honorable Missouri. Judge States District for the Western District 90
Lynch
engaged
sexually charged
going
also
call
Equal Opportunity
Em-
(EEOC)
conduct toward other women who worked
ployment Commission
or hire a
Hy-Vee.
Lynch
Smith observed
kiss-
lawyer.
*3
employee
another
ing
smacking
female
and
Over the course of
employment
Smith’s
Lynch
“dry
her on
buttocks.
also
Hy-Vee,
management
store
and other
humped”
employee.
another female
Based
supervisors
a
documented
number of inci-
events,
Lynch
on these
Smith believes
is a
appropriate-
dents where Smith did not act
lesbian or
bisexual. Another former
ly
questioned
or
authority
superiors.
of
Hy-Vee employee
Lynch may
also believes
leading up
the weeks
to her termi-
Lynch,
be bisexual.
who has been married
nation,
supervisor
Smith’s
immediate
years
to the same man for sixteen
and has
up
wrote her
for a series of
in-
mistakes
daughters,
two
denies these claims.
volving cake
bagel
and
orders
during
made
alleged
addition to the
conduct direct-
the last two or three
employ-
weeks of
ed toward Smith and other
employ-
female
ment. Although Hy-Vee’s
write-up
store
Hy-Vee, Lynch
ees at
engaged
also
in policy gives employees an opportunity to
sexually charged activity toward male
sign
disciplinary
write-up and submit a
employees. Examples
store
of this con-
response, Smith
given
oppor-
was not
(1) Lynch
duct include:
inappropri-
made
tunity
procedure
to follow this
for the
(2)
jokes
sexual
ate
with a store manager;
write-ups
immediately
she received
before
Lynch “dry humped” the
manager
same
her termination.
(3)
week;
about
Lynch
once a
put her
Smith’s employment was terminated on
manager’s
hands
pockets and said
August
approximately
On
Au-
(4)
“hey
boy”;
there big
Lynch hit several
17, 2006,
gust
Charge
Smith filed a
of
employees
male
on
posterior
on sever-
against Hy-Vee
Discrimination
with the
(5)
occasions;
al
Lynch made sexual com-
EEOC and the Missouri Commission on
(6)
ments
employees;
towards male
and
(MCHR).
Rights
Human
Both the EEOC
Lynch
sexually
made
explicit cakes for
and MCHR issued notices of
right
Smith’s
Hy-Vee employees. Lynch
male
was not
to suе. Smith filed claims for sexual
employee
engaging
sexually
harassment,
in violation of
charged
Mo.Rev.Stat.
behavior. Several employees en-
213.055,
retaliation,
§
gaged in
jokes
sexual
violation of
penises
and made
or
213.070,
§
body
Mo.Rev.Stat.
parts
against Hy-Vee
other
out
dough
cake.
the Circuit
County,
Court of Jackson
Mis-
reported
Smith states she
incidents
3, 2007,
August
souri. On
Hy-Vee re-
sexual harassment to at least twelve differ-
moved the case to federal court. On
managers
ent
and co-workers. She raised
27, 2009,
March
granted
a total of 66 to 101 complaints to manage-
summary judgment in
Hy-Vee
favor of
on
ment when she
inappropriate
felt
conduct
the sexual harassment claim. Before the
Management
occurred.
failed to take ac-
trial,
retaliation claim proceeded to
tion on
alleged
these
complaints. Hy-Vee
granted
trial court
Hy-Vee’s in limine
complained.
denies Smith ever
In June or
motion to exclude evidence that detailed
July
Smith attended a meeting
the sexual harassment from which Smith
requested
where she
a transfer out of the
asserted she suffered.
bakery department; Hy-Vee denied this
request. During the last two weeks before
II
the termination of her employment, Smith
complained to a number
people
about
Smith first challenges the district court’s
sexual harassment and indicated she was
granting summary
order
judgment
in fa-
(1)
harassment,
prove:
she must
harass
sexual
on
sexual
vor of
(2)
protected group;
of a
the district court’s
she is member
We review
ment claim.
novo,
subjected
view
to unwelcome
summary judgment de
she was
grant of
(3)
favorable
light
harassment;
most
gender
record
was a contrib-
ing the
(4)
harassment;
term,
v. Cin
non-moving party. Pedroza
to the
in the
uting factor
F.3d
Corp.
condition,
No.
employment
tas
of her
privilege
or
Cir.2005).
appro
Summary judgment
(5)
harassment;
affected
genuinе
there exists no
priate only where
or should have known of the
Hy-Vee knew
that no reason
material fact such
issue of
appropriate
to take
harassment and failed
*4
a
for the
could return
verdict
able
Barekman,
at 679. If
action.
232 S.W.3d
Liberty
Anderson v.
non-moving party.
present
a material issue of
Smith failed
242, 247-48, 106 S.Ct.
477 U.S.
Lobby,
fact on
of the aforementioned ele-
(1986).
2505,
202
91 L.Ed.2d
ments,
summary
entitled to
Hy-Vee was
judgment on Smith’s sexual harassment
employers
prohibits
MHRA
case,
present
claim.
at 679-80. In the
Id.
any individual
discriminating against
from
requirement,
the third
whether
we address
terms,
compensation,
respect to his
“with
contributing
a
faсtor
gender
conditions,
employment,
privileges
or
in the harassment.
...”
...
sex
such individuals
because of
213.055.1(1)(a).
§
When a
Mo.Rev.Stat.
Court,
Supreme
The Missouri
acknowl-
MHRA, “ap
under the
claim is reviewed
Supreme
edging the United States
Court’s
guided by both Missouri
courts are
pellate
decision in Oncale v. Sundowner Offshore
discrimination
employment
federal
law and
Services, Inc.,
998,
118
523 U.S.
S.Ct.
consistent with Missouri
caselaw that
is
(1998),
MHRA,
stated the
909 Cir.1997). (8th 403; v. 1309, holding, this see Fed.R.Evid. Olson F.3d 1315 King, 130 (8th Co., an amendment predate these cases Motor 481 F.3d While Ford that that occurred to Rule 103 Cir.2007), pros- we think that there is no part on the had nо effect amendment here, a “clear error” pect that there was ex- proof on offers of rule that bears give that allow us to much less one would a failure to renew one: cept to excuse Hawkins, relief, Rahn v. plain-error see is that no offer point we make here (2006). 464 F.3d made, that was not not one proof was ever Advisory Committee renewed. As IV observe, applies the amendment *6 BYE, Judge, dissenting. Circuit fact, matter of whether motion in In the I respectfully agree I dissent. with the to made does not seem had been limine to the district court Moran, majority opinion as in so we think have in issue been properly dismissing offers of Smith’s sexual harass- there about that the assertion unnecessary was inadvertent I proof being part ways my ment claim. Where with lan- plain The fact that and dictum. in colleagues is their affirmance of the provides rule otherwise guage of the court’s exclusion of “evidence re- district more confident of this read- makes us even of garding specific incidents and details ing the case. of alleged sexual harassment.” Because 103(d) did not waive the issue my belief is Smith preserve the does
Fed.R.Evid. excluding evi court abused its discretion that an order and the district possibility еvidence, may appeal plain key be reviewed on for I would excluding dence in offer despite proper the absence of Hy- error district court’s of reverse the in trial court. does not ask for Smith in limine. motion Vee’s in and we don’t think plain-error review avail any event that such a review would I
her. The district court excluded detailed matter, I agree a threshold cannot As harassment from evidence of majority’s finding as to Smith with the the sexual the retaliation trial because challenge her to the motion having waived claim had been dismissed harassment itself in connection briefing her of the issue summary judgment, and concluded on by failing in limine and to with the motion of the the relevance of the details proof in the district court. make an offer of that occurred was mar harassment strategy majority views trial The potential preju for unfair ginal while its revealing Lynch’s as limited to Sherri large. See Fed. dice to was harassment, of con- identity and the fact highly 403. Given the deferential R.Evid. “effectively waived ob- cluding of Smith govern that would our review standard to the motion in limine right party of jection except less substantial affected, and developed matters for which it she was jury.” to offer evidence tо the later allowed view,
Supra at 908. my interpreta such ruling excluding case the is one plans tion trial is unfair. A of Smith’s evidence, the of the evidence substance Hy- quick reading response of Smith’s to was made known to the court offer or Vee’s motion in limine confirms Smith apparent from the context within wanted to introduce more than the mere questions which were asked. identity fact of harassment and the of the Once the court makes a definitive rul- Rather, to Hawkins pointed offender. she ing admitting on the record or excluding Center, Hennepin Technical evidence, trial, either at or before а par- Cir.1990), support her objection ty need not renew an or offer argument permitted she should be to in proof preserve a claim of error for some, details all, troduce albeit not appeal. underlying provide incidents to context for 103(a)(2). Fed.R.Evid. her retaliation claim. See Smith’s Re language exempting of the Rule Limine, sponse Hy-Vee’s Appel Mot. party having from to renew the offer ability App’x lant’s 840. Absent the to proof following ruling by a definitive discuss the incidents of harassment recognition court was added in detail, argued, some she would be definitive, reality ruling “[w]hen “hamstrung proving that she had a rea a renewed ... proof offer of at the time sonable, good faith basis for com the evidence is to be offered is more a plaints, which anis element of retaliation.” necessity.” formalism than a Fed.R.Evid. Id. moving preclude 838. In testimo Indeed, cmt. 2000 Amendment. married, ny Lynch being as to Smith simi in limine are designed “[m]otions avoid larly asserted she needs of a “rea delay prejudice and occasional caused *7 sonable basis for complaining she was trial; by objections proof and offers of ‘dryhumped,’ being and rubbed and they are if they more useful can serve Id. at 839- upper body.” touched оver her they purposes, these which do if ...
40. proof foregone offers of ... can be safely.”
Nor perceive did itself Williams, (7th Wilson v. 562, 182 F.3d 566 response forfeiting as the point. While Cir.1999). Thus, a judge where has made Hy-Vee properly recognized wanted trial, ruling objection a definitive an before testify to to sexual harassment incidents error, “unnecessary prevent it and herself, Hy-Vee did not raise the waiver may do than little other slow down the defense—either in the or in Id. One additional benefit of trial.” bring facts, the circuit court. Given these the ing a motion limine advance of trial is majority’s insistence on a more detailed allowing parties modify their trial strat evidentiary strategy articulation of Smith’s egy depending on the outcome of the mo response in her brief is unwarranted. Requiring tion. an offer of at trial proof deprive litigants would of such a benefit. concerning majori- The same is true Id. ty’s decision on the offer proof. Under
the current of Federal Rule of version purposes Consistent with the of the 2000 103, Evidence amendment, Eighth previ- Circuit has may predicated upon ously party not be “a properly pre- [e]rror noted must ruling which ... un- proof excludes evidence serve an issue below with an offer of
911
pursuant
parties’
proffered
articulation of
the evidеnce was excluded
evidence
unless
Clarke,
Moran v.
limine,
to a motion in limine.”
in connection with the motion in
Cir.2002) (en
(8th
banc)
638,
296 F.3d
649
gained familiarity
court
district
with the
added).
majority attempts
The
(emphasis
allegations
substance of Smith’s
when ad-
en
weight
to discount the
banc
judicating
parties’ dispositive
motions.
by pointing
opinions
to two
which
opinion
Ass’n, Inc.,
See
v.
Germano
Int’l Profit
amendment,
predated the 2000
see
both
(7th Cir.2008)
798,
544
(stating
F.3d
801
Inc., 112
Dupre
Eng’g,
v. Fru-Con
F.3d that
briefing
response
of the issue
to a
(8th Cir.1997);
329,
Keeper King,
336
summary judgment
motion for
satisfied re-
(8th
1309,
Cir.1997),
1315
130 F.3d
103(a)(2)). Thus,
quirements of Rule
then in
were inconsistent with
law
duty
presenting
Smith fulfilled her
Chleborad,
place, see Charter v.
551 F.2d
“in meaningfully developed
issue
man-
(8th Cir.1977)
(holding that a
248-49
ner,” Moran,
Ford, Inc.,
1097,
“plaintiffs
reasonably
856 F.2d
1103
Cir.
that
that
who
believe
1988),
part
grounds
overruled in
on other
pro-
conduct violates Title VII should be
by
Hopkins,
retaliation,
Price Waterhouse v.
490 U.S.
tected from
even if a court
228,
1775,
109 S.Ct.
In order to determine whether and to assumption parallels Missouri law what extent the excluded evidence was federal law in this area. See Stuart v. probative, necessary to review the 621, 634, Corp., Gen. Motors 637 relevant substantive law. The Missouri (8th Cir.2000). case, In another (MHRA) Mis- Human Rights Act states: souri Aрpeals Court of affirmed a It discriminatory shall be an unlawful summary judgment in favor of the defen- ... practice: retaliate or [t]o discrimi- plaintiffs dant on the sexual harassment any nate in against any manner other claim, but provided held the evidence person person opposed because such has trial-worthy plaintiffs issue on the retalia- any practice prohibited by chapter claim, thereby tion implying the relevant person or because such has filed a com- criterion is not the actual testified, assisted, violation of the plaint, participated or statute. Barekman City Rеpublic, any investigation, pro- manner 232 ceeding hearing pursuant (Mo.Ct.App.2007). or conducted S.W.3d 680-82 chapter.... Conversely, to this although one argue could plaintiff simply complain any- needs to 213.070(2). § Mo.Rev.Stat. he thing illegal believed to be an practice Supreme Court of Missouri ex MHRA, under the such an interpretation plained a claim for shall retaliation be plain would contradict the text of the stat- proved “by showing required the elements ute, requires which practice com- MHRA, rather than reference to plained “prohibited by of to be chap- cases such as Douglas McDonnell [v. Thus, § ter.” Mo.Rev.Stat. 213.070. Green, 411 U.S. 93 S.Ct. properly trial court acted applied when it (1973) L.Ed.2d 668 analyzing violations of ] the “reasonable belief’ standard to the Co., federal law.” Hill v. Ford Motor MHRA and instructed the as such. (Mo.2009). Therefore, S.W.3d order for prove Smith to retaliation workplace Details of harassment are MHRA, (1) violation of the she must show: probative to a claim of retaliation because (2) harassment; complained she of sexual employee an subject must show that the employer took an adverse action matter of complained which she could be (3) her; against relationship causal reasonably “prohibited construed as a between the complaint and the adverse practice” case, under the MHRA—in this employment Cooper action. v. Albacore Barekman, sexual harassment. See (Mo. Holdings, 204 S.W.3d S.W.3d at 681-82. Details of harassment Ct.App.2006). *9 employee potential- endured an are also ly probative establishing to retaliation be- suggests
Missouri law to a state cause the pervasive more severe and the MHRA, claim of retaliation under the a harassment, likely the more that an is plaintiff reasonably must show she be- employer will have an unlawful motivе for complained lieved the conduct of violated Hawkins, terminating employment. the MHRA. adopted This court has the (“[A]n atmosphere “reasonable belief’ F.2d at 156 standard Title of condoned VII cases, see Peterson v. in a County, workplace Scott harassment increas- (8th Cir.2005) F.3d 525 n. (stating the es likelihood of retaliation for com- cases.”). fully present order for a to her impor- plaintiff in individual More plaints tantly, accepted the more severe and the claim. Id. the more workplace, is the harassment Similarly, Easley, brought woman to likely employee complain. an claim of against employer. retaliation sure, recognized the To be this court has trial, at At there 158 F.3d was no provid- unfair inherent in prejudice
risk of occurred; dispute that sexual harassment at a trial for ing details harassment point. the defendant conceded the The By allowing evidence of retaliation. specific district court excluded testimony trial, there is a risk the harassment discussing the harassment plaintiffs be- “encourage jury could the to evidence prejudicial cause it found the effects would grounds the plaintiff the relief on outweigh probative “jury the value. The conduct, prohibited from the she suffered” generally was told of the sexual harass- company against retaliated not because the ment, plaintiff permitted but the was not complaining. Easley v. employee the for to go blow-by-blow into account of [the] Greetings Corp., Am. (quotation misconduct.” Id. at 976 marks (8th Cir.1998). Eighth Circuit has omitted). words, In plaintiff other the was sufficiently two which are decided cases generally able to discuss what occurred in to this case as to warrant close similar so workplace, but could not Both cases were decided un- discuss ex- examination. guide therefore our plicit jury der federal law and details. Thе returned a verdict analysis to the extent the MHRA mirrors in favor of the employer. appeal, On Hill, 277 Title VII. See S.W.3d 665. court concluded the district court acted evidence, excluding within its discretion in Hawkins, brought a claim woman under Rule of specific instances of employer, her former against of retaliation sexual harassment. alleging punished making she was com of sexual 900 F.2d at plaints harassment. Easley distinguishable Hawkins and are trial, parties disputed 154. At whether First, important ways. two the cases actually occurred. The sexual harassment differ on whether sexual harassment oc- prohibited plaintiff from Hawkins, employer argued curred. any “introducing alleged evidence of acts occur; sexual harassment did not in Eas- against of sexual harassment committed ley undisputed. the fact of harassment was herself or others.” Id. at 155. When re Also, the amount of evidence which was ferring specific which elicited incidents submitted at trial differed between the two complaints, plaintiff was allowed In Easley, cases. the court allowed the “[bjecause respond she transferred was plaintiff generally to discuss the harass- being [she] felt harassed.” Id. [she] However, ment that occurred. in Haw- plaintiff appealed at 156. The an adverse kins the district plaintiff court ruled the verdict, court reversed and could not introduce evidence of the remanded for a new trial. The court stat alleged sexual harassment. In comparing alleged ed that “some detail about cases, these two it is clear the “bare alle- necessary provide harassment a con gations” plaintiff fully do not allow a complaints text for made” a retalia present However, her retaliation claim. tion claim. Id. The court concluded undisputed when it is that harassment has district court abused its discretion lim *10 occurred, probative value of detailed iting of unlawful conduct to “bare evidence sexual harassment is diminish- allegations” because there must be some underlying indication of the incidents in ed. evidentiary
Returning to the issue Ill hand, court, I would conclude the district judgment I would reverse the Hawkins, like the district court abused part district court in fur- remand for excluding its discretion evidence of proceedings. ther specific of sexual instances harassment. Easley, undisputed Unlike where was occurred, having
as to harassment the is- Lynch’s
sue of whether conduct constitut- hotly disputed.
ed harassment was This is summary judgment
evidenced hear-
ing Hy-Vee argued, where under the au-
thority County of Clark School District v. America, Breeden, UNITED STATES 532 U.S. S.Ct. Plaintiff-Appellee, (2001), L.Ed.2d 509 that the district court should conclude that no person reasonable could have believed the incidents com- AMRATIEL, Rachel Thomas f/k/a byof
plained Smith violated the MHRA. Hibdon, Defendant-Appellant. Although rejected the district court argument, gave the court the instruction No. 09-3934. plaintiff prove that the needed she “rea- sonably in good faith Appeals, believe[d]” United States Court of Thus, Eighth was sexual Circuit. conduct harassment. proving Smith still had the burden of Sept. Submitted: 2010.
trial complained the conduct she of violat- During ed the MHRA. the course of the Filed: Oct.
trial, however, the district court’s eviden-
tiary ruling prevented giving Smith from
details of the harassment of which she
complained. only testimony
was allowed to regarding introduce
“dry-humping” incident that in May “particular there was a in- incident
volving Lynch Ms. reported [she]
management” as she thought the incident
was serious. Trial Tr. at 353. The district ruling
court’s on the motion in pre- limine
vented the from hearing the basis on
which decide whether Smith was rea- believing
sonable in the conduct she com-
plained prohibited by of was the MHRA.
Therefore, the evidentiary restriction im-
posed by the district unfairly pre- court case, proving
vented Smith from which Hawkins,
is an abuse of discretion. See