Viсki Cross, Plaintiff-Appellee, v. Emanuel Cleaver II, et al., Defendants-Appellants.
No. 97-3441
United States Court of Appeals, Eighth Circuit
Filed: April 10, 1998
Submitted: March 10, 1998
Before MCMILLIAN and FAGG, Circuit Judges, and BENNETT, District Judge.*
I. BACKGROUND ........................... 4
A. Factual Background .................... 4
B. Procedural Background ................... 7
II. ANALYSIS ............................ 11
A. Applicable Standards ................... 11
1. Judgment as a matter of law ............ 11
2. Improper jury instructions ............. 13
B. Preservation Of Errors .................. 17
1. The objection to the liability standard ...... 17
2. The objection to the combined instruction ..... 19
C. Employer Liability For Retaliation ............ 20
1. Retaliation under Title VII ............ 22
2. Standards for employer liability for harassment . . 23
3. The nature of retaliatory action and the standard for employer liability ............... 26
D. Combined Retaliation Instruction ............. 29
1. Retaliation under Missouri law ........... 30
2. Cross’s state-law retaliation claim ........ 33
III. CONCLUSION .......................... 34
BENNETT, District Judge.
In this appeal, we are asked to consider the standard for employer liability for retaliation in violation of
Additionally, the board members contend that the trial judge erred by submitting the police officer’s separate retaliation claims under
We affirm.
I. BACKGROUND
A. Factual Background
The facts pertinent to this appeal are the following. Plaintiff-appellee Vicki Cross has been a police officer with the Kansas City, Missouri, Police Department (KCMPD or the Department) since April of 1990. The KCMPD does not exist as an entity that can be sued, and the parties agree that Cross’s employer was and is in fact the Board of Police Commissioners, the governing body of the KCMPD and the entity that has the exclusive management and control of the Department. Individual past and present members of the Board are the defendant-appellants here. Although the Board is the governing body and Cross’s employer, the Chief of Police of the KCMPD is responsible for the actions of the Department, attends Board meetings, and is required to provide a disciplinary report to the Board. At the times pertinent to Cross’s lawsuit, the Chief of Police was Steven Bishop. Although Bishop was originally a defendant below, in his official capacity, the current Chief of Police, Floyd O. Bartch, was substituted as a defendant just prior to trial.
While working for the Department, Cross wаs assigned, at various times, to three out of five of its patrol divisions and to the Vice Unit. At the time of the events giving rise to her claims, she was assigned to the North Patrol Division. In 1991 or 1992, she met and began dating another police officer, Dan Garrett. Eventually, the relationship deteriorated to the point that, in February of 1994, Cross asked a mutual friend, a police sergeant, to tell Garrett to leave Cross alone. However, the sergeant told Cross that he believed that Garrett’s conduct, as alleged by Cross, constituted sexual harassment in
As a result of Cross’s complaint and the memorandum from the sergeant, the Department began a “miscellaneous” investigation, which included taking statements from Cross, Garrett, and others. On March 23, 1994, a Deputy Chief of the Department sent Garrett a letter instructing him to stay away from Cross until the conclusion of the investigation. Two days later, Garrett retired from the Department.
Garrett was a friend and long-time co-worker of then Chief of Police Steven Bishop. Bishop testified that he learned of Cross’s complaint against Garrett on February 25, 1994, the day after the complaint was filed. Garrett and Bishop discussed the complaint on February 28, 1994, at which time Garrett testified that Bishop said he would “get the bitch,” referring to Cross. Bishop denies making that statement, but does not deny that he discussed the sexual harassment complaint with Garrett on February 28, 1994.
Cross offered sufficient evidence from which a jury could find that retaliation against her began almost immediately after her complaint of sexual harassment was filed. That retaliation consisted of investigations, suspensions, and transfers of Cross. More specifically, Cross presented evidence that in February of 1994, Bishop encouraged the Gladstone Police Department—another municipal police department with jurisdiction adjacent to the North Patrol Division of the KCMPD—to start an investigation of alleged sexual misconduct by Cross and a Gladstone Poliсe Officer, Kenny Buck, whom Cross had started dating. The Gladstone Police Department’s investigation was eventually dismissed, because investigators found no merit to the charges of sexual misconduct by Cross and Buck. Cross also presented evidence that
However, investigations of Cross were instigated concerning allegations that she had “participated in a plan or scheme to have a traffic ticket fixed” and that she had seen cocaine in a house, but had done nothing about it. Although Cross was suspended for twelve days as the result of the ticket-fixing charge, the Grievаnce Committee found that Cross had not participated in a scheme to “fix” the ticket, but had exhibited poor judgment in passing along money and the ticket without definitely knowing their purpose. Although the committee recommended that other allegations be stricken from her record as unsubstantiated, Chief Bishop refused to correct Cross’s records. At about the same time, Cross was disciplined for missing a court appearance, even though, according to Cross, the desk sergeant admitted he should have filed a continuance.
The most substantial of the allegedly retaliatory actions, however, was Cross’s suspension without pay for four months during 1995 pending investigation of charges by her ex-husband that she had committed a “burglary” when Cross and the ex-husband’s former girlfriend entered his residence and removed a tape player. The Department instituted a criminal investigation, but when the city and county prosecutors both declined to prosecute the incident as either a “burglary” or a “trespass,” the investigation concluded. Despite the fact that the internal criminal investigation
Cross took many more days of sick leave during 1994 and 1995 than she had at any other time during her career with the KCMPD. She attributed the additional leave to stress. In early 1995, Cross expressed doubt that she was mentally or physically fit to do her job. A Department psychologist eventually reviewed her records and certified her fit for duty.
Cross was reinstated with pay and allowances on July 18, 1995. Prior to her reinstatement, however, Cross filed the present lawsuit on June 14, 1995. After this suit was filed, no disciplinary actions were taken against Cross and, about a month-and-a-half prior to trial, Cross was transferred back to the North Patrol Division.
B. Procedural Background
As mentioned just above, Cross filed the present lawsuit on June 14, 1995. She named as defendants the Department, Chief Bishop, in his official capacity, and persons who were or had been members of the Board, also in their official capacities. Some of the members of the Board were dismissed from the action, because they were not members of the Board at the time suit was filed, and the Department was dismissed on the basis that it was not an entity that could sue or be sued. Cross’s complaint, as later amended on November 7, 1995, alleged sexual harassment in violation of
Jury trial began on November 4, 1996, and concluded on November 7, 1996. At the close of Cross’s case, the Board Members moved for judgment as a matter of law on Cross’s retaliation claims in Count II on the ground, inter alia, that Cross had failed to show a submissible case on the element “[t]hat these Defendants knew or should have known of the harassment and failed to take immediate and appropriate corrective action.” Defendant’s Motion for Judgment As A Matter Of Law At The Close Of Plaintiff’s Evidence, pp. 2-3. The defendants’ brief in support of that motion directed the court to their trial brief for arguments in support of judgment on the retaliation claim. Defendants’ Suggestions In Support Of Motion For Judgment As A Matter Of Law, p. 2. The trial brief, however, offers no argument on the standard for employer liability in a retaliation case. See Trial Brief of Defendants, pp. 5-7. Furthermore, the extent of oral argument in support of this standard was an assertion that “there’s been no evidence to establish the third element [of Count II], that these defendants knew, or should have known, of the harassment and failed to take immediate and appropriate corrective action.” Transcript, p. 479-80. This first motion for judgment as a matter of law was denied.
At the close of all evidence on November 7, 1996, the defendants again moved for judgment as a matter of law. As one ground for judgment on Cross’s retaliation claim, the defendants once again asserted that no evidence had been submitted that the defendants knew or should have known of the harassment. However, the proffered no oral argument whatsoever in support of that contention. See Transсript, pp. 608-30. The court denied the second motion for judgment as a matter of law, just as it had denied the first. However, the court did dismiss Count III as to the Board Members, leaving only Bartch, in his official capacity, as a defendant on that claim.
The jury found in favor of Cross on her retaliation claim under state and federal law in Count II and awarded $70,000 in compensatory damages and $20,000 in punitive damages against the Board Members. On Count III, the civil rights claim, the jury awarded compensatory damages of $30,000 against Bartch.
On November 15, 1996, the defendants renewed their motion for judgment as a matter of law, or, in the alternative, moved for a new trial. This time, in pertinent part, the defendants asserted that the verdict on the retaliation claim was “against the weight of the evidence”;2 that it was improper to submit the state and federal retaliation claims in a single instruction; that the Board Members were entitled to sovereign immunity on the state-law retaliation claim; and that punitive damages were permitted on the retaliation claim only under the
On July 31, 1997, the trial judge ruled on the parties’ post-trial motions. The
The trial court did grant the Board Members some relief, however. The court found that sovereign immunity barred the retaliation claim under the
The Board Members now appeal the portions of the July 31, 1997, ruling relating to the submission of the two retaliation claims in a single instruction and the trial judge’s conclusion that there was evidence to support the jury’s verdict on the retaliation claims, over the Bоard members’ objections that there was no evidence that they participated in the retaliation or that they knew or should have known of the retaliation. Cross does not appeal any part of the trial court’s ruling on either her own or the defendants’ post-trial motion.
II. ANALYSIS
A. Applicable Standards
1. Judgment as a matter of law
This court reviews de novo the denial of a motion for judgment as a matter of law (JAML) pursuant to
Furthermore, where a party fails to make a timely and adequate objection before the trial court to a matter subsequently raised on appeal, this court will review the matter only for “plain error.” Rush v. Smith, 56 F.3d 918, 922 (8th Cir. 1995) (en banc) (where a party failed to lodge a timely objection to the trial judge’s comments,
2. Improper jury instructions
As the second ground for appeal of denial of their motion for JAML, or in the alternative, motion for new trial, the Board Members object to the instructions given by the trial сourt on the retaliation claims. The trial court has “broad discretion” in instructing the jury. Ryther v. KARE 11, 108 F.3d 832, 846 (8th Cir. 1997) (en banc) (citing Hastings v. Boston Mut. Life Ins. Co., 975 F.2d 506, 510 (8th Cir. 1992)), cert. denied, ___ U.S. ___, 117 S. Ct. 2510 (1997). Instructions do not need to be
Rule 51 of the Federal Rules of Civil Procedure specifically provides that “[n]o party may assign as error the giving or failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.”
“[T]he purpose of Rule 51 is to compel litigants to afford the trial court an opportunity to cure [a] defective instruction and to prevent the litigants from ensuring a new trial in the event of an adverse verdict by сovertly relying on the error.” Missouri Pac. R.R. v. Star City Gravel Co., 592 F.2d 455, 459 (8th Cir. 1979), quoted in Barton v. Columbia Mut. Cas. Ins. Co., 930 F.2d 1337, 1341 (8th Cir. 1991). Rule 51 requires a litigant to state distinctly the specific
objections to a jury instruction before the jury retires; otherwise, a litigant waives the right on appeal to object to a jury instruction on those grounds, see Commercial Property Invs. Inc. v. Quality Inns Int’l, Inc., 61 F.3d 639, 643 (8th Cir. 1995), and “we will reverse only if the instruction amounts to plain error,” see Rolscreen Co. v. Pella Prods., 64 F.3d 1202, 1211 (8th Cir. 1995).
Dupre, 112 F.3d at 333; accord Westcott v. Crinklaw, 133 F.3d 658 (8th Cir. 1998) (“[Rule 51] requires specific objections before the jury retires so that the district court may correct errors and avoid the need for a new trial.”); Ryther, 108 F.3d at 845 (“‘In order to preserve an objection [to jury instructions] for appeal, ‘[t]he grounds of the objection must be specifically stated, and the error claimed on appeal must be based on the same grounds stated in the objection,’” quoting Starks v. Rent-A-Center, 58 F.3d 358, 361 (8th Cir. 1995)); Doyne v. Union Elec. Co., 953 F.2d 447, 450 (8th Cir. 1992) (also observing that Rule 51 is intended to require litigants to afford the trial court the first opportunity to cure defective instructions and to prevent parties from preparing a covert ground for appeal).
Not only is an objection required, but a “general objection [is] insufficient to preserve the specific objections to the instruction” that the appellant may subsequently seek to raise on appeal. Id. (citing Denniston v. Burlington N., Inc., 726 F.2d 391, 393 (8th Cir. 1984)). Rather, “‘[o]bjections must “bring into focus the precise nature of the alleged error.”’” Westcott, 133 F.3d at ___ (quoting Jones Truck Lines, Inc. v. Full Serv. Leasing Corp., 83 F.3d 253, 256-57 (8th Cir. 1996), in turn quoting Palmer v. Hoffman, 318 U.S. 109, 119 (1943)). “Our law on this subject is crystal clear: to preserve an argument concerning a jury instruction for appellate review, a party must state distinctly the matter objected to and the grounds for the objection on the record.” Dupre, 112 F.3d at 334 (citing cases). In this circuit, making objections “on the
Where an appellant has failed to make an adequate objection below to preserve the purported error in instructions—as with failure to object to other purported errors by the trial court—this court reviews only for “plain error.” Westcott, 133 F.3d at ___; Dupre, 112 F.3d at 334; Ryther, 108 F.3d at 847 (objections to instructions that have been waived by lack of timely assertion are reviewed only for “plain error”). Again, under plain error review we reverse “‘only if the error prejudices the substantial rights of a party and would result in a miscarriage of justice if left uncorrected.’” Id. (quoting Rush v. Smith, 56 F.3d 918, 922 (8th Cir.) (en banc), cert. denied, ___ U.S. ___, 116 S. Ct. 409 (1995)); Dupre, 112 F.3d at 334 (also citing Rush); Ryther, 108 F.3d at 847 (“plain error” review “is ‘narrow and confined to the exceptional case where error has seriously affected the fairness, integrity, or public reputation of the judicial proceedings,’” quoting Des Moines Bd. of Water Works Trustees v. Alvord, 706 F.2d 820, 824 (8th Cir. 1983)); Christopherson v. Deere & Co., 941 F.2d 692, 694 (8th Cir. 1991) (“‘[A]ny plain error exception to compliance with Rule 51 “is confined to the exceptional case where error has seriously affected the fairness, integrity or public reputation of judicial proceedings,”’” quoting Smith v. Honeywell, Inc., 735 F.2d 1067, 1069 (8th Cir.), cert. denied, 469 U.S. 1077 (1984), in turn quoting Rowe Int’l v. J-B Enterprises, 647 F.2d 830, 835 (8th Cir. 1981), and also stating that the error must have “‘contribute[d] to a miscarriage of justice,’” quoting United States v. Young, 470 U.S. 1, 16 (1985)).
The Board Members appeal on two grounds. First, they contend that the trial court improperly denied them JAML on Cross’s
1. The objection to the liability standard
The Board Members assert that they raised the issue of the “knew or should have known” standard in their motion for JAML at the close of plaintiff’s evidence, and again in their motion for JAML at the close of all evidence. Additionally, they claim that they specifically argued for this standard in oral arguments on each of these motions. Furthermore, they contend that their arguments to the trial court that the agency instruction on the retaliation claim was ovеrbroad, because it would tend to cause the jury to believe that the defendants would be responsible for rumors, was “essentially an argument that the ‘knew or should have known’ standard should apply.” Reply Brief of Appellants, p. 5.4 The Board Members thus contend that they presented
Although the Board Members mentioned as a ground for JAML at the close of Cross’s case and again at the close of all of the evidence that Cross had failed to present a submissible case on the element “[t]hat these Defendants knew or should have known of the harassment and failed to take immediate and appropriate corrective action,” they plainly failed to reiterate this ground for JAML in their renewed post-trial motion. Rule 50(b) provides for the renewal of a motion for JAML after trial when such a motion has been made at the end of all of the evidence.
2. The objection to the combined instruction
The Board Members’ procedural default on their objection to the combined instruction on state and federal retaliation claims is different. Instead of failing to renew post-trial an objection raised in a prior motion for JAML or prior objection to jury instructions, the record contains no indication that the Board Members ever raised an objection to the combined retaliation instruction before their post-trial “renewal” of their motion for JAML or new trial. The Board Members were required to raise an objection to the combined instruction “before the jury retire[d] to consider its verdict,” and their objection to the combined instruction had to state distinctly the specific objections to the combined instruction and the grounds therefor.
Having established the standard for review for the questions presented on this appeal, we turn now to the merits of the Board Members’ assertions of error.
C. Employer Liability For Retaliation
The Board Members assert, first, that the trial court erred in denying their renewed motion for JAML or new trial, because no evidence was adduced at trial that the Board Members knew or should have known about the alleged retaliation against Cross. They state that they can find no decision of this court applying a respondeat superior or vicarious liability standard to a retaliation claim, and that Cross’s claims clearly do not involve claims of quid pro quo harassment. Rather, they argue that the “knew or should have known” test is applicable to a retaliation claim by analogy to the holdings of this court in hostile environment sexual harassment cases under
However, Cross points out that in Davis and other cases in which this court has discussed retaliation claims, this court has never held that proof that the employer knew or should have known of the retaliation was an element of the claim. Cross likens retaliatory conduct by a supervisory employee, such as the Chief of Police here, to quid
Courts are split on, or at least uncertain about, the standard for liability of an employer for retaliation that violates Title VII. See, e.g., Jansen v. Packaging Corp. of Am., 123 F.3d 490, 494-95 (7th Cir. 1997) (en banc) (per curiam) (in a “welter” of opinions addressing different aspects of employer liability, making clear that a majority of the court agreed on a “negligence” standard for hostile-environment claims and “strict” liability for quid pro quo harassment, but not clearly placing retaliation in either category), petition for cert. granted in part, Burlington Industries, Inc. v. Ellerth, ___ U.S. ___, 118 S. Ct. 876 (Jan 23, 1998) (No. 97-569); Reed v. A. W. Lawrence & Co., Inc., 95 F.3d 1170, 1180 (2d Cir. 1996) (panel decision discussing the application of “agency” principles for employer liability for co-worker practices, including retaliation, applying a “knew but did nothing” standard); and compare Davis v. Palmer Dodge West, Inc., 977 F. Supp. 917, 925 (S.D. Ind. 1997) (relying on a concurring opinion in Jansen, supra, for the proposition that it was “clear” in the Seventh Circuit that “courts must hold an employer to a strict liability standard for quid pro quo harassment, and a heightened negligence standard for hostile environment and retaliatory harassment by a supervisor“); with Gary v. Washington Area Transit Auth., 886 F. Supp. 78, 88 (D.D.C. 1995) (holding that, “[i]n a retaliation case, as in a the quid pro quo case, the employer should be held strictly liable).” Although it is clear in this circuit that
1. Retaliation under Title VII
Title VII prohibits an employer from retaliating against an employee because he or she “has opposed any practice made an unlawful employment practice by this subchapter,” or “has made a charge” of harassment, or has “participated in any manner in an investigation, proceeding, or hearing under this subchapter.”
2. Standards for employer liability for harassment
Cross is correct that the cases cited just above do not appear to require proof that the employer knew or should have known of the retaliation as an element of a retaliation claim. Yet, as this court pointed out in Davis, this court has consistently required proof that the employer knew or should have known of harassment, yet failed to take proper remedial action—even when the harassment was by a supervisоry employee—in order to hold the employer liable for a sexually hostile environment.
Even so, in Davis, this court did not then apply the “knew or should have known” standard to the plaintiff‘s retaliation claim. Id. Instead, the court considered whether the employer took adverse action against the plaintiff. Id. This court‘s decision in Smith, a decision cited in Davis as applying the “knew or should have known” standard to a hostile environment claim, is perhaps still more instructive, because in that case not only was the plaintiff‘s supervisor the alleged harasser on the plaintiff‘s hostile environment claim, but he was also the person whose conduct was alleged to be the basis for the рlaintiff‘s retaliation claim. See Smith, 109 F.3d at 1265-66. Although this court required proof that the employer knew or should have known of the hostile environment harassment by the supervisor to hold the employer liable on the hostile environment claim, this court did not require proof that the employer knew or should have known of a supervisor‘s retaliation, but did nothing, for the plaintiff to prevail on her retaliation claim. Smith, 109 F.3d at 1265-66. Instead, the court apparently imputed the retaliatory conduct of the supervisor—which in that case
In Davis, this court noted that the “knew or should have known” standard for employer liability in hostile environment cases was in contrast to the standard applicable in quid pro quo cases:
In the situation of quid pro quo sexual harassment by a supervisor, where the harassment results in a tangible detriment to the subordinate employee, liability is imputed to the employer. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 76, 106 S. Ct. 2399, 2410, 91 L. Ed. 2d 49 (1986) (Marshall, J., concurring in judgment).
Davis, 115 F.3d at 1367; accord Todd, ___ F.3d at ___, 1998 WL 92207 at *2 (also noting this distinction, relying on Davis). A number of courts have explained why this should be so. In Reinhold v. Commonwealth of Virginia, 135 F.3d 920 (4th Cir. 1998), the Fourth Circuit Court of Appeals observed that whether the employer knew or should have known of the harassment was always an element of a sexual harassment claim, but that this requirement “is automatically satisfied” where the sexual harassment was of the quid pro quo variety and “is committed by one of the employer‘s supervisors,” because the retaliator was acting as the employer. Reinhold, 135 F.3d at 931-32. The Eleventh Circuit Court of Appeals has explained that “‘[w]hen a supervisor requires sexual favors as a quid pro quo for job benefits, the supervisor, by definition, acts as the company.‘” Farley v. American Cast Iron Pipe Co., 115 F.3d 1548, 1552 (11th Cir. 1997) (quoting Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316 (11th Cir. 1989)). The Second Circuit Court of Appeals, too, has explained that, “[b]ecause the quid pro quo harasser, by definition, wields the employer‘s authority to alter the terms and conditions of employment—either actually or
3. The nature of retaliatory action and the standard for employer liability
A review of decisions of this court reveals that employment actions that are sufficiently adverse to sustain a retaliation claim are also often actions in which the retaliator wields the employer‘s authority—either actually or apparently—to effect the retaliation, which must take the form of a material employment disadvantage. See, e.g., Manning, 127 F.3d at 692 (employment actions that were sufficiently adverse to sustain a retaliation claim include “tangible change in duties or working conditions that constituted a material employment disadvantage,” or an “ultimate employment decision,” such as termination, demotion, reassignment, but not merely hostility, disrespect, or ostracism); Kim, 123 F.3d at 1060 (sufficiently adverse actions include discharge, reduction of duties, actions that disadvantage or interfere with the employee‘s ability to do his or her job, and “papering” of an employee‘s file with negative reports and reprimands); Montandon, 116 F.3d at 359 (sufficiently adverse actions include termination, demotion, transfers involving changes in pay or working conditions, and negative evaluations used as the basis for other employment actions); Davis, 115 F.3d at 1369 (retaliation took the form of transfer to a less desirable position, because that position оffered little opportunity for salary increases or advancement); Smith, 109 F.3d at 1265-66 (retaliation took the form of negative references to prospective employers). It would follow that employer liability would also be imputed for such retaliatory acts, because in such circumstances, the retaliator is, by definition, acting as the employer.
Consequently, in this case, where the retaliation took the form of investigations, transfers, and suspensions by Chief Bishop, the retaliation was effected by using the Chief‘s authority—actual or apparent—to act as the employer, that is, by using his delegated authority from the Board to manage the Department. In such a situation, it was not plain error for the trial court not to require proof that the Board Members, Cross‘s actual employer, knew or should have known of the retaliation. Imposing liability in the absence of proof that the employer knew or should have known of retaliation did not result in any miscarriage of justice. Rush, 56 F.3d at 922.
We can envision the circumstance, however, in which a supervisory employee who engages in retaliation is neither so high in the hierarchy that his or her conduct is necessarily imputed to the employer, nor does the retaliatory conduct in which the supervisor engages necessarily involve wielding the actual or apparent authority of the employer. Thus, the standard of employer liability applicable to a retaliation claim may well depend upon both the status of the retaliator and the nature of the retaliatory conduct.
In the circumstances of this case, however, we hold that, where a supervisory employee with the power to hire, fire, demote, transfer, suspend, or investigate an employee is shown to have used that authority to retaliate for the filing of a charge of sexual harassment, the plaintiff need not also prove that the employer participated in
Thus, it was not plain error for the trial court to deny the Board Members’ motion for JAML on the ground that no evidence had been adduced that the Board Members knew or should have known of the retaliation against Cross, because no such proof was required in this case. Furthermore, we find that the evidence presented at trial was sufficient to support a reasonable finding on each of the required elements of Cross‘s retaliation claim. Stockmen‘s Livestock Mkt., Inc., 135 F.3d at 1243; Kim, 123 F.3d at 1060; Maschka v. Genuine Parts Co., 122 F.3d 566, 571 (8th Cir. 1997); Ryther v. KARE 11, 108 F.3d 832, 844 (8th Cir. 1997). Consequently, there is no other ground for overruling the trial court‘s denial of the Board Members’ post-trial motion for JAML.6
D. Combined Retaliation Instruction
The Board Members’ second ground for appeal is that the trial court erred in submitting both Cross‘s state and federal retaliation claims in a combined instruction. As we held above, this issue can be reviewed only for plain error, becausе the Board
On appeal, the Board Members assert that it was error to submit the MHRA retaliation claim on the basis of the same elements as the Title VII retaliation claim, because the MHRA contains much broader language than the comparable provisions of Title VII, citing Williamson v. Arvin Indus., Inc., 975 F. Supp. 1235 (E.D. Mo. 1997), and because the Missouri Supreme Court held in Keeney v. Hereford Concrete Prods., Inc., 911 S.W.2d 622 (Mo. 1995) (en banc), that “the difference in the language employed by the two statutes is sufficiently stark to render interpretations of the federal law inapposite for purposes of assigning meaning to section 213.070 [of the MHRA].” Keeney, 911 S.W.2d at 624. Cross counters that the MHRA is “broader” in respects that do not matter here and that the elements of the two retaliation claims, in this case, were indeed identical.
1. Retaliation under Missouri law
The portion of the MHRA prohibiting retaliation, codified at
In Keeney, the Missouri Supreme Court was asked, first, to consider whether a former employee is a “person” under
It is immediately obvious that the language employed by Congress in 42 U.S.C. § 2000e-3(a) is considerably more limited than the exceedingly broad “in any manner against any other person” language adopted by the Missouri legislature in section 213.070. Indeed, the difference in the language employed by the two statutes is sufficiently stark to render judicial interpretations of the federal law inapposite for purposes of assigning meaning to seсtion 213.070. . . . The language of section 213.070(2) is clear and unambiguous. The statute renders retaliation “in any manner against any other person” an unlawful discriminatory practice.
Keeney, 911 S.W.2d at 624. Consequently, the Missouri court held that the trial court‘s conclusion that the plaintiff could not prevail on his MHRA retaliation claim, because no employer-employee relationship existed between the plaintiff and the defendant, was erroneous. Id. at 625.
More to the point here, however, is the Missouri Supreme Court‘s comparison of the elements of a retaliation claim under the MHRA with those of such a claim under
Federal judicial interpretations of 42 U.S.C. § 2000e-3(a) require (1) that the employee engaged in an activity protected by the statute, (2) that adverse employment action occurred, and (3) that a causal connection existed between the two. Sweeney v. City of Ladue, 25 F.3d 702, 703 (8th Cir. 1994). An adverse employment action occurs where a former employee suing for retaliation, demonstrates that the retaliatory action adversely affects his/her future employment or employability. Bailey v. USX Corp., 850 F.2d 1506, 1508 (11th Cir. 1988); Pantchenko v. C. B. Dolge Co., Inc., 581 F.2d 1052, 1053 (2d Cir. 1978). . . . Under section 213.070, retaliation must be given broader meaning; this is because section 213.070 does not limit itself to the employer-employee relationship. Thus, retaliation exists under section 213.070 when (1) a person files a complaint, testifies, assists or participates in an investigation, proceeding or hearing conducted pursuant to chapter 213 and (2) as a direct result, he or she suffers any damages due to an act of reprisal. This Court cannot judicially impose a requirement outside of the plain language in section 213.070. Here, the trial court applied the wrong legal standard for determining if retaliation occurred under that section.
2. Cross‘s state-law retaliation claim
However, in this сase, there is no dispute that Cross was an employee of the Board at the time she alleges she was retaliated against, not a former employee, so the broader scope of the MHRA anti-retaliation provision, as compared to the Title VII provision, is not called into play. See Keeney, 911 S.W.2d at 625-26. Of the pertinent elements, we can perceive no effective difference in this case between proof that “the employee engaged in an activity protected by the statute,” the first element of a Title VII retaliation claim, and proof that a current employee “file[d] a complaint, testifie[d], assist[ed] or participate[d] in an investigation, proceeding or hearing conducted pursuant to chapter 213,” the first element of a retaliation claim under the MHRA. Nor can we see any effective difference between proof that there was a causal connection between the employee‘s protected activity and adverse employment action, the remaining elements of a Title VII retaliation claim, and proof that “as a direct result [of protected activity], [the employee] suffer[ed] any damages due to an act of reprisal,” the second element of a retaliation claim under the MHRA. In this case, we cannot find that the trial court committed any plain error in instructing on the two retaliation claims in a combined instruction stating elements drawn from Title VII cases. Westcott v. Crinklaw, 133 F.3d 658 (8th Cir. 1998); Dupre v. Fru-Con Eng‘g, Inc., 112 F.3d 329, 334 (8th Cir. 1997); Ryther, 108 F.3d at 847.
Furthermore, to the extent the Missouri statute would provide for relief in a broader set of circumstances, because the jury verdict here was rendered on the narrower statement of elements of a Title VII retaliation claim, there can be no doubt that the verdict was rendered on the Title VII claim, the claim permitted by the trial court here. The Board Members’ argument that there is confusion over the claim upon which the verdict was rendered, the state or federal one, could only have merit if the
III. CONCLUSION
We conclude that appellants failed to preserve either of the errors they assert on appeal. Having reviewed the trial court‘s rulings for “plain error,” we hold, first, that where a supervisory employee with the power to hire, fire, demote, transfer, suspend, or investigate an employee is shown to have used that authority to retaliate for the filing of a charge of sexual harassment, the plaintiff need not also prove that the employer participated in or knew or should have known of the retaliatory conduct to hold the employer liable, and the trial court properly denied a post-trial motion for JAML or new trial based on the assertion that the “knew or should have known” standard had not be satisfied. Second, we hold that the trial court did not plainly err in giving a combined instruction on the plaintiff-appellee‘s retaliation claims under the MHRA and Title VII, because, in the circumstances of this case, the elements of the two claims were essentially identical. Finding no error, the judgment of the district court is affirmed.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT
Notes
The Board Members moved, in the alternative, for a new trial. As this court recently explained,
We review the district court’s denial of [a] motion for a new trial for an abuse of discretion. Keenan v. Computer Assoc. Int’l, Inc., 13 F.3d 1266, 1269 (8th Cir. 1994). Where, as here, “the basis of the motion for a new trial is that the jury’s verdict is against the weight of the evidence, the district court’s denial of the motion ‘is virtually unassаilable on appeal.’” Id. (quoting Peterson v. General Motors Corp., 904 F.GM 436, 439-40 (8th Cir. 1990)). “The key question is whether a new trial should have been granted to avoid a miscarriage of justice.” Id.
Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997); accord Schultz v. McDonnell Douglas Corp., 105 F.3d 1258, 1259 (8th Cir. 1997) (“We review the denial of a motion for a new trial under an abuse of discretion standard,” citing McKnight v. Johnson Controls, Inc., 36 F.3d 1396, 1400 (8th Cir. 1994)), cert. denied, ___ U.S. ___, 118 S. Ct. 56 (1997).
Rule 50(b) provides, in pertinent part, as follows:
If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all evidence, the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment—and may alternatively request a new trial or join a motion for a new trial under Rule 59.
It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.