*1 WEGER; Mary Meghan Murphy, Julie
Plaintiffs-Appellants, LADUE; Baldwin;
CITY OF William Wickenhauser, Defendants-
Donald
Appellees.
No. 06-1970. Appeals,
United States Court of
Eighth Circuit.
Submitted: Jan. 2007. Sept.
Filed: En
Rehearing Rehearing Banc
Denied 2007.* Nov. * Judge Murphy, Judge Bye, Judge Melloy, participate Gruender did not in the consider- Smith, Judge Judge grant Benton would ation decision of this matter. petition rehearing Judge en banc. *4 Watters, Louis, argued, F. St.
Russell (Irene Marusic and T. Michael Missouri J.
Ward, brief), appellant. for on the Richardson, argued, St. Gerald M. (Matthew Robinson, Louis, B. on Missouri brief), appellee. for BYE, LOKEN, Judge, Before Chief SHEPHERD, Judges. Circuit SHEPHERD, Judge. Circuit Mary Meghan Murphy Weger Julie Plaintiffs) (collectively appeal district summary judgment grant court’s1 Ladue, their City on employer, claims harassment and retaliation of sexual Rights Act of Title of the Civil under VII (“Title VII”), §§ 2000e to 42 U.S.C. 2000e-17, Rights and the Missouri Human (“MHRA”), §§ Mo.Rev.Stat. 213.010- Act affirm. 213.137.2We sexually ha- Limbaugh, Wickenhauser Stephen N. Unit- Police Donald 1. The Honorable against them under 42 Judge and retaliated the Eastern Dis- rassed ed States District § the Fourteenth in violation of trict of Missouri. U.S.C. granted sum- The district court Amendment. claims, court, Plaintiffs mary judgment these also asserted on In the district Plaintiffs ruling. challenge do not this Captain William Baldwin and Chief p.m., I. rotating and Plaintiffs worked sched- they roughly ules such that worked present light We the facts in a most only same hours as Baldwin one month nonmoving parties, favorable to the every However, six months. Plaintiffs of- Plaintiffs. See E.E.O.C. v. Wal-Mart ten they encountered Baldwin as were Stores, Inc., Cir. 2007). coming on to their shifts and he was leav- ing and vice versa. From the commence- Plaintiffs were hired of La- assignment ment of Baldwin’s as Plaintiffs’ Department (“Department”) due Police supervisor, sexually Baldwin harassed the communications officers 1999 and have Plaintiffs, though they continually even ex- continuously employed by been the De- pressed Baldwin considered partment since that During Weger’s time. his conduct tо be unwelcome and application process, Captain inappro- Bald- William win, lieutenant, then a learned that Weger priate.3 As of the fall of Baldwin undergone had surgery breast reduction engaged daily harassment of the Plain- Sergeant Wagner, and informed John then tiffs. Wagner a detective. communicated this In the winter of Detective Norman Baker, fact to Lieutenant Chris then a witnessed an put incident where Baldwin *5 addition, detective. In during Murphy’s arm Murphy’s his around shoulder and application process, Baldwin commented to face, leaned in Murphy close to her and Wagner and something Baker to the effect stated, up stood and “I can’t stand him.” that, attractive, though was Murphy time, At an unspecified Bonney Officer saw large she Following had breasts. their Baldwin up Murphy, come behind who was hire, Wagner informed the Plaintiffs of standing area, in the communications and Eventually, Baldwin’s remarks. the fact place his hands on her in hips attempt Weger’s prior surgical procedure be- her, to tickle Murphy angry became and came well throughout Depart- known told Baldwin to stop, go Baldwin let but
ment, in resulting Weger being subjected followed Murphy with outstretched hands teasing by to her coworkers. if he going again, as was to tickle her and Plaintiffs work in the communications Murphy told Baldwin to leave her alone. department, dispatch- which consists of six Also, time, unspecified at an Detective Lu- ers and one civilian supervisor. In cas saw moving Baldwin his hands on Baldwin supervisor became the uniformed Weger’s shoulders and then Weger saw for department. communications eyes. Finally, roll hеr in September Baldwin also Department’s served as the Bonney Sgt. Officer Wagner and saw Mur- internal affairs investigator and second in phy walking hallway down the with Bald- command to Chief of Police Donald Wick- her, win behind enhauser, rubbing he was her shoul- longtime Baldwin’s friend. ders, serving grimaced While she and supervisor, away Plaintiffs’ turned from weekdays Baldwin worked from a.m. to Baldwin in an grip effort to his break on bodies; harassing (7) 3. Baldwin’s against' behavior toward the going their and under (1) them, chasing tickling Plaintiffs included: massage legs. their desks order to their them, blocking doorways they and that addition, so inappropriate Baldwin made sexual him; (2) get were massag- unable to around Plaintiffs, including comments to references shoulders, neck, ing upper their chest Murphy's legs repeated breasts and uniforms; (3) area attempt- underneath their inquiries her into sexual relations as well as hands; ing (4) grabbing hold their their physical appearance remarks about waists; (5) running fingers through his other women. hair; (6) hugging pressing body them and his happened what and, Wagner Murphy cedure. described shoulders, response, her next: “I can’t believe and said his head shook standing conversing
that.” I there was [A]s him, approached me with [Baldwin] employ- of Plaintiffs’ inception At the very attempting ... his hands close they received Department, ment with if ... it hurt. cup my and asked face antiharassment copy of its and reviewed actually my face. I did He brushed specifically prohibits policy This policy. going if he to kiss me or know was [not] a com- and outlines harassment sexual very me or what. It made me feel hug who be- employees procedure plaint time, I point uncomfоrtable. At that or those that being harassed lieve are had had it. employees. of other harassment witness immediately upstairs to Murphy then went (1) supervisors to: requires the inci- reported Lt. Baker’s office and work environ- Department’s monitor the previous as well as instances of Bald- dent on a any signs of harassment ment for This was the first time win’s harassment. (2) basis; employees about daily advise any Department informed su- Murphy that complaint types prohibited of behavior being sexually ha- pervisor that she all obs'erved acts of stop procedures; harassment rassed Baldwin. Baldwin’s the em- regardless of whether day. the Plaintiffs ended his or her su- are under ployees involved complaint immediate action to reported Murphy’s take Baker pervision; following No- limit the contact between day, work Chief Wickenhauser of harassment in a vember 6th. Wickenhauser interviewed involved Moreover, and, along all De- investigation. day, with describ- pending Murphy *6 report to her required given are that had rise partment employees ing the incident a supervi- prior harassment Baldwin’s complaint, acts of she discussed observed interview, for grounds failure to do so is After the Wicken- sor and harassment. a com- provides also Baldwin and instructed discipline. policy hauser contacted mul- area procedure with the complaint him not to prehensive enter communications harassment, includ- any communications report avenues to or have contact with tiple Police, of and until further notice. Wicken- any supervisor, the Chief ing personnel receipt investigation of a an Mayor Upon began of Ladue. then the hauser policy’s proce- complaint. the complaint, Murphy’s will Department the provides dure investigation consisted Wiekenhauser’s contact between immediately limit work Baldwin, Bak- Wagner, and- interviewing complainant, alleged harasser and Wooten, Richard Lieutenant er as well as responsible Police is and the Chief Schmitz,- Norman, Det. Chris Detective Final- complaint. of the investigation Bonney. Wickenhau- Richard Officer against retaliation ly, policy prohibits interviewees that some of the ser informed participating and those complainants attorney retaining they should consider investigations. for slan- could sue them because Baldwin reported the interviewees 5, 2002, der. Several of Murphy encoun- On November acting inappro- Baldwin adja- having area witnessed in the kitchenette tered Baldwin employees: toward four female Murphy priately area. cent to the communications Goin, a communi- Kristin Murphy, Weger, day before had been out from work Allison, officer, had and Pat who extracted, cations she had two teeth supervisor for the civilian pro- served as. the discussing that and Baldwin were she (4) department ing any Department employee; communications since 2001. addition, Schmitz, Wagner, any and Norman future accounts substantiated of Bald- reported hearing employ- other unnamed win’s violation of the or retaliation “Captain against anyone ees refer to Baldwin as Tickles” Plaintiffs or involved in Elmo,” they investigation and “Tickle Me which be- would result in his ter- grew propensity Additionally, lieved out of his for tick- mination. Baldwin per- Wickenhauser, ling employees. manently supervisor females removed as Plaintiffs’ Baker, superior and Wooten stated that were but remained their within the Department not aware of Baldwin’s nicknames. as he remained head of inter- nal affairs and continued to serve act- Wickenhauser also interviewed all com- ing necessary. chief when personnel. munications Allison and Goin them; 21st, days denied that Baldwin had harassed On November two after the however, Weger ended, Murphy’s investigation substantiated Wickenhauser issued claims, informing Department, Wickenhauser that Bald- directives to the entire which hug win tried to her and had touched or “safeguards,” he characterized as as a re- shoulders, neck, rubbed her and arms on sult of investigation. his These directives that; (1) many Weger joined Murphy occasions. in provided not more than two de- (2) complaint. regard her With together; to Baldwin’s tectives could eat lunch when nicknames, Weger Allison and leaving Department, were not detectives must However, (3) radio; aware of them. Murphy had out their locations on call heard longer refer officers were no allowed to enter “Captain Baldwin as Tickles” and “Tickle any the communications area for reason intermittently. Me Elmo” other than a purpose; business a num- normally ber of items that were located later, About two weeks on November the main work space of the communica- 19th, completed Wickenhauser his investi- tions area were moved to the kitchenette gation, finding that Baldwin un- had not rear, arеa so officers could access lawfully sexually Murphy harassed back, those decreasing items from the traf- Rather, Weger. Wickenhauser deter- through area; fic main work mined that Baldwin touchéd the shoulders the communications officers were no long- and arms of both male and female em- *7 er allowed to take breaks in the detective ployees in a nonsexual manner when en- bureau. Plaintiffs felt that the directives them, in gaging conversation with and were in retaliation for their harassment that, though touching was meant to be complaint and were meant to isolate them nonsexual, Murphy Weger and found it by making it difficult for them to interact offensive. Although re- Wickenhauser with their coworkers for both social and fused to provide Plaintiffs with the results purposes. work-related investigation, his he shared this infor- Baldwin, mation with including officers, names Plaintiffs also felt ostracized and them, statements of the witnesses. Addi- who acted indifferent towards and tionally, Wickenhauser, issued a memoran- ignored Chief who Wickenhauser them. (1) Moreover, dum to Baldwin providing that: presence Baldwin’s continued in though area, Baldwin had not un- engaged in though communications for work- ' harassment, lawful reasons, related made aforementioned the Plaintiffs feel (2) individuals; touching offended they some uncomfortable because believed that touching violated Department’s Baldwin did this in order to indicate his n n (3) policy; addition, antiharassment superior position. Baldwin In Alison be- should, future, in the refrain from touch- gan taking more detailed notes of Plain- negotiations. settlement The matter was Although Allison’s activities. tiffs’ work resolved, and, exhausting not after their Murphy’s activities regard notes with remedies, half in the Plaintiffs filed a page a and a administrative only amounted to City count complaint, against to her twelve prior months seventeen Ladue, Baldwin, Capt. and pages relating of notes Chief Wicken- Allison took seven 2, 2004, alleging in the twelve months hauser on June hostile Murphy’s activities whole, On the work environment sexual harassment and following complaint. her VII, MHRA, po- retaliation under Title concerning *8 standards), analyzed under same the 4. hostile work environ claims Because Plaintiffs' pursuant finding the claims to court’s resulted in dismiss- ment sexual harassment district VII, MHRA, 1983 claims Title the and section al of all of the Plaintiffs’ hostile work environ- subject analysis, are to the same see LeGrand ment claims. Servs., Cmty. 394 v. Area Res. & Human noted, denied, previously VII the 1098, (8th Cir.), 5. As Title cert. 546 F.3d 1101 analysis. 335, subject the same See 813, are MHRA 47 U.S. 126 S.Ct. 163 L.Ed.2d Thus, LeGrand, the at district (2005) (Title 394 F.3d analyzed and MHRA claims VII retaliation standards); all of Plaintiffs' Wright court dismissed v. Rolette under same 879, (8th Cir.), district court also claims for this reason. The County, cert. 417 F.3d 884 claims, - 1338, denied, -, section 1983 dismissed the Plaintiffs’ 126 S.Ct. 164 U.S. (2006) (Title they a cause of finding had failed to state VII and 1983 that L.Ed.2d 53 section 718 only grant of sum- ments assumed final appeal
Plaintiffs the element such Ladue, mary City judgment of prima that Plaintiffs demonstrated a facie contending genuine that issues of fact case of hostile work environment sexual preclude application the EUerth- of However, harassment. the district court Faragher affirmative defense and that granted summary judgment City to the of they prima have demonstrated a facie Ladue based on the af- Ellerthr-Faragher сase of retaliation. Thus, only firmative defense. we consider City proved whether the the affirmative II. defense as a matter of law. de novo the
We review
district court’s
grant
summary judgment
City
of
to the
of
A.
Ladue, viewing
drawing
the evidence and
Because the hostile work envi
all
light
reasonable inferences
most
ronment
Plaintiffs,
sexual harassment
that Plaintiffs
affirm
favorable to the
and will
judgment
subjected
if
no
were
to in
genuine
perpe
there is
issue
this case was
City
of material fact and the
is entitled to
supervisor,
City
trated
a
is vicari
a
judgment as matter of law. See Car
ously liable for the
unless it
Moines, Iowa,
rington
Des
481 demonstrates its
of
entitlement
to the El-
(8th Cir.2007).
1046, 1050
F.3d
defense,
lerth-Faragher affirmative
which
potentially applicable
in situations
prohibits employers
Title VII
from
where,
here,
tangible employment
no
“discriminat[ing] against any individual
alleged.
action is
See Williams v. Mo.
respect
terms,
compensation,
[her]
Health,
972,
Dept. Mental
975-
conditions, or privileges
employment,
of
of
(8th
denied,
Cir.),
1091,
76
cert.
546 U.S.
because of such individual’s ...
sex....”
2000e-2(a)(l).
(2006)
1037,
§
42 U.S.C.
“Discrimina
126 S.Ct.
action under the Protection Clause of the Fourteenth Amendment.
719
Cir.2001)
Glass,
(4th
179,
242 F.3d
188
Department satis-
the
as to whether
exist
(“Under
circumstances,
jury
affirmative de-
these
a
could
EUerbh-Faragh&r
the
fied
(1)
that,
anti-
Department’s
rationally
although
the
conclude
em
[the
fense because:
(2)
ineffective;
institution of an
policy
ployer’s]
[antiharassment]
harassment
actual and construc-
represented
step
had both
to
policy
reasonable
Mur-
the harassment before
the’type
tive notice of
ward
of abuse-suffered
preventing
and
supervisor
to a
complaint due
phy’s
employee],
company
[the
unreason
harass-
observing instances of
ably failed to correct
of
[the harasser’s]
(3)
years;
two
preceding
”);
ment over
fending behavior....
Shaw v. Auto-
(7th Cir.1999)
corrective actions were
Department’s
Zone, Inc.,
806,
180 F.3d
Baldwin;
in favor of
(“The
harsh and skewed
prong
first
of the ... defense also
(4)
unreasonably
not
the Plaintiffs did
and
it
employer]
prove
to
that
requires
[an
com-
Department’s
delay
invoking
in
respond
reasonable care to
to
exercised
they possessed
because
plaint procedure
harassment.”).
the sexual
and believed
fears of retaliation
credible
meant to
prevention prong
The
is
not con-
would
that Chief Wickenhauser
purpose,”
further “Title VU’s deterrent
matter be-
investigation of the
a fair
duct
Ellerth,
764, 118
2257,
see
524 U.S. at
S.Ct.
relationship with Bald-
his close
cause of
affirma
by “recognizing]
employer’s
Plaintiffs’
each of
address
win. We
obligation
prevent
tive
to
violations
in turn.
claims
...
to
who make
giv[ing]
employers
credit
duty.”
discharge
reasonable efforts
806,
2275;
Faragher,
Williams, at (finding 407 F.3d 976-77 that 2. employer’s policy,
an with antiharassment Depart- Plaintiffs also contend that the provision a nonretaliation and flexible prong ment has not satisfied the correction reporting procedure, employ- satisfies the (1) as a matter of law because: it had both duty prevention under the prong). er’s actual and constructive notice of Baldwin’s Depart Plaintiffs contеnd that the harassment via its observation satisfy prevention prong ment did not prior Murphy’s of the harassment com- policy because its antiharassment inef (2) plaint; investigation its of Plaintiffs’ (1) ways: in the following fective Plaintiffs’ (3) flawed; complaint was its remedial supervisors report coworkers and did not action was harsh and skewed in favor of observed acts of Baldwin’s harassment of Baldwin. Plaintiffs; Department did of prong requires correction training fer or counseling regard Department to demonstrate that it “exer harassment; Depart sexual cised reasonable care ... to correct attempt ment made no to monitor Bald any promptly sexually harassing behav However, behavior. win’s Plaintiffs have 807, Faragher, ior.” U.S. 118 S.Ct. authority offered no from this court that Therefore, in applying the correc Department’s these failures render prong, tion “the employer’s notice of the prevention unreason harassment efforts paramount is of Moreover, impor policy able. at issue is dis ” .... Madray tance Supermar Publix tinguishable from analogous Varner and kets, Inc., (11th 1290, 208 F.3d Cir. Depart Gordon Williams because the 2000) (quoting Dees v. Johnson Controls policy, provided ment’s which was to all Servs., World Cir. employees, multiple identifies officials to 1999)); see Stuart v. General Motors may reported whom harassment be (8th Cir.2000) Corp., 217 F.3d an provision. contains antiretaliation Fur (“Factors may thermore, [c]ourt consider when alleged Plaintiffs have not assessing the of [an reasonableness em delay invoking the Department’s ployer’s] was, remedial measures include the complaint prоcedure in any way, a elapsed amount of time between the notice policy’s result of the deficiencies. On the harassment, which includes but is not contrary, Plaintiffs chose not to invoke the limited to a of sexual harass Department’s complaint procedure for at ment, ....”); and the remedial action see year least a due to their fears of retaliation Potter, also Swenson v. and that would not receive a fair (9th Cir.2001) (“Notice sexually of the investigation, goes which to the second harassing triggers conduct employer’s Ellerth-Faragher element of the affirma duty to take prompt corrective action that tive defense. reasonably calculated to end the harass sum, we find that ment.”) (internal omitted). quotation marks reasonably acted to prevent harassment as Therefore, we must determine when the facially matter of law because it had a Department had notice of ha Baldwin’s that, valid in- antiharassment when rassing behavior in order to evaluate the Plaintiffs, voked brought an immediate promptness of response. its Thus, end to Baldwin’s harassment. City of Ladue has prevention satisfied the Plaintiffs assert the De prong of the first element of the Ellerth- partment had actual notice of Baldwin’s
721 2002, Rather, 5, Department the has a because to November prior harassment supervisor, one who a published policy provides procedure at least that because com harassment designated harassment, to receive suspected Plain- reporting Department’s policy, ob under the plaints procedure must have invоked this tiffs further Plaintiffs the harassment. served notice. order to establish actual See Wat- that, policy required the because contend son, 1259; Minix, 324 F.3d at see also harassment to re who employees observed (“[OJnce 1828259, *2 2007 at an [anti- WL it, their coworkers’ observation port effectively has been policy harassment] ac also constituted harassment Baldwin’s employer’s employees disseminated to an Department prior the tual notice to upon ‘it incumbent However, where an Murphy’s complaint. procedural utilize the mechanisms estab- procedure a delin employer complaint has company specifically lished to ad- notice of the individuals to whom eating ”) problems grievances.’ dress given, employee ob harassment must be 1298-99). Madray, 208 F.3d at (quoting to the actual are not relevant servations complaint to Lt. Baker Murphy’s Prior to Circle, v. Blue inquiry. notice See Watson 5, 2002, provided which actu- on November Cir.2003) (11th 1252, Inc., F.3d 1259 Murphy ad- Department, al notice to the (“When employer pub a clear and an has any Depart- that she failed to inform mits procedures that outlines the policy lished any other individual supervisor ment report suspect follow to employee an must policy that she was be- designated complaining em harassment and the ed sexually by Baldwin. Be- ing harassed procedures, actual no ployee follows those any devoid of indication cause the record is notice, on tice is established. Constructive Department’s invoked the that Plaintiffs hand, when the is established the other procedure priоr to pervasive so harassment was severe Department did Murphy’s complaint, the reasonably have management that should Baldwin’s harass- not have actual notice of it.”) (citation omitted); v. known of Minix 5, 2002. ment until November Inc., 582, Jeld-Wen, 578, Fed.Appx. 06-16094, 1828259, *2 No. 2007 WL that De Plaintiffs also assert curiam) (un (11th 2007) 27, (per Cir. June of Baldwin’s harass partment’s correction (finding “dispositive” the fact
published)
reasonably prompt
ment was
employee
report
did not
harass
that the
had constructive notice of
the'
to receive
designated
ment to an individual
Murphy’s
com
prior
such harassment
complaints by
employer’s
antihar-
such
and coworker obser
plaint
supervisor
via
employer
that the
assment
so
did
harassment).
inappropriate
Baldwin’s
conduct.6
vation of
not have actual notice of
initial com
deciding
[the victim's]
the con-
notice ... before
6. This assumes without
that
notice”);
plaint provided actual
see also Ku
knowledge
is relevant
structive
doctrine
Co.,
289, 294
Roebuck &
175 F.3d
nin Sears
evaluating
promptness
employer's
of an
(3d Cir.1999)
potential
(recognizing that the
pursuant
the first ele-
correction efforts
in the context of sexual
for constructive notice
Ellerth-Faragher
ment of the
affirmative de-
correct bal
“strikefs]
harassment claims
Inc.,
v. Pinkerton's
fense. See Griffin
rights
em
protecting the
of the
ance between
Cir.1999)
(8th
(acknowledging that
by faulting
em
ployee
employer
and the
may
charged
be
with "construc-
signs
turning
eye to overt
ployer for
a blind
knowledge
racially
tive
of a
hostile environ-
requiring it to attain
harassment but not
Univ.,
ment”); Smith v. St.
Louis
omniscience,
of actual
in thе absence
level of
notice,
(8th Cir.1997) (noting
1265 n. 3
may
occur
about all misconduct
“may
to demon-
Farley
victim of harassment
be able
workplace”). But see
v. Am.
in the
Co.,
Pipe
F.3d
[employer]
Cast Iron
strate that the
had constructive
found,
employee
employer’s
An
can show an
con-
The district court
as a matter of
*12
knowledge of sexual
law,
structive
harassment
impute
that
these instances did not
by demonstrating that “the harassment
Department
that
constructive notice to
pervasive
manage-
was so severe and
that
sexually harassing
Baldwin was
the Plain
reasonably
known of it.”
ment
should have
they
tiffs because
occurred over a substan
Watson,
1259;
324
see
v.
F.3d
Smith
St.
period
single
tial
of time and no
officer
(8th
Univ.,
1261,
n.
Louis
109 F.3d
observed more
than three
incidents.
Cir.1997) (recognizing that constructive no-
Though the
to
behavior attributed
Baldwin
tice of harassment
exists where “the
reprehensible,
six
instances ob
everyone”);
harassment was obvious to
see
by Department employees
served
lack the
Jones,
1193,
Taylor
also
653 F.2d
requisite pervasiveness
support
to
find
Cir.1981)
(8th
(affirming the district
ing
everyone.”
it
that
“was obvious to
See
finding
atmosphere
court’s
that “the
of
Smith,
Therefore,
Reporting sexually
Walton,
offensive conduct
see
Accordingly, Plaintiffs
“ineffective”);
would have been
policy,
“truly
onstrate a
credible threat of retali
(“[C]oneerns
Reed,
ation,”
id.,
at 36
as to
333 F.3d
see
in order to render
Walton,
fail
complaint
whether the
mechanism will
delay reasonable. See
347 F.3d
(“[A]bsent
by trying
can
it out if failure is
at 1290-91
a credible threat of
be tested
Caridad,
cost.”);
III.
mine whether Plaintiffs have satisfied this
Plaintiffs contend the district court
N.,
prong.
Burlington
See
S.Ct.
finding
they
erred in
had failed to
retaliation,
prima
make out a
facie case of
challenge a
Plaintiffs
number of the De-
specifically, that
did not establish an
partment’s postcomplaint
as ma-
activities
employment
light
adverse
action in
of an
actions,
terially
including:
adverse
iso-
case,
intervening Supreme
Burling
Court
*16
lating
through
them from their coworkers
Railway
Fe
ton Northern & Santa
Co.
(2)
directives;
Chief Wickenhauser’s
su-
White,
U.S.-,
126 S.Ct.
pervisor
“papering”
personnel
Allison
(2006). Though
recog
L.Ed.2d 345
we
(3)
files;
conducting performance evalua-
Supreme
nize
Court “broaden[ed]
(4)
time;
tions of Plaintiffs for the first
prima
...
the retaliation
facie ease” in
(5)
Plaintiffs;
ostracizing
failing
provide
Northern,
Burlington
for the reasons ex
Murphy compensatory
equal
time
to other
below,
plained
allegations
Plaintiffs’
re
(6)
officers;
failing
pro-
communication
inadequatе.
Higgins
main
See
v. Gon
(7)
equitable
Weger;
vide
overtime to
(8th Cir.2007)
zales,
removing Weger
position
from her
as a
N.,
2405).
(citing Burlington
126 S.Ct. at
training officer. We address each action
In
proscribing
addition to
sex
in turn.
in
workplace,
ual harassment
Title VII
First, Chief Wickenhauser’s di
prohibits
against employees
retaliation
materially
rectives were not
adverse be
in
allege,
participate
investiga
who
or
an
they
cause
were issued to the
proceeding alleging,
tion or
violation of
whole,
only
changes
as a
resulted in
minor
Title
employer.
VII
his or her
See 42
workplace procedure,
impacted
in
2000e-3(a);
N.,
§
Burlington
U.S.C.
way
Plaintiffs in the same
as all other
at
prima
S.Ct.
2415. To make out a
facie
retaliation,
Though
case of
communications officers.
Plaintiffs must show:
conduct;
they engaged
protected
in
Plaintiffs contend
the directives were
reprimands.
them from their co- written
Id. at 1061. Howev-
designed to isolate
not,
way,
workers,
any
er,
did
in
the directives
notetaking
Allison-’sincreased
activities
simply
Plaintiffs.
It
does
single out the
do not
approach
retaliatory
kind of
employer’s
an
announce-
not follow that
activity in Kim because the Plaintiffs do
that affects all or
ment of a new
allege
“papering”
not
that the
of their files
in the
substantially
all of its
and,
single reprimand
included even a
adversely affect
manner would so
same
fact,
largely
positive
it
consisted of
or neu-
that it
have dissuad-
Plaintiffs’ lives
would
reports.
tral
reporting
ed them from
Baldwin’s harass-
Third,
requirement
that Plain
Higgins, 481 F.3d
ment. See
evaluations,
performance
tiffs receive
Moreover,
attempt
analogize
Plаintiffs’
time, following
the first
their harassment
they felt
a result of the
the isolation
not
materially
adverse under
retaliation in
directives with the actionable
because,
Burlington
again,
Northern
this
Sys. & Robot
Welding
Moore v. KUKA
to,
all,
policy applied
and affected
commu
Cir.1999)
is not
Corp.,
For in a purposes pending of harassment in- appeal, this there is no dispute plaintiffs vestigation. a prima Additionally, made facie all showing of sexual harassment. Because *19 are report mandated to harassment and (then a de- Baker and Lieutenant William if fail to action disciplinary
subject to tective) bureau dis- the detective were in acts of harassment. observed report hire. Bald- impending cussing Murphy’s employed with has been Wagner as a win, Wagner characterized in what throughout Police Ladue Murphy display, stated and giggly childish a detective was tenure. He plaintiffs’ large she much to look at but had not was and hired Murphy and were Weger when Despite find- A1568-69. breasts.8 Id. at As a sergeаnt. promoted later was “in- “strange” and ing Baldwin’s comments supervisor a and sub- Wagner is sergeant, he never Wagner testified appropriate,” City’s imposed by the ject to the duties as re- the incident reporting considered supervisors. upon antiharassment policy, City’s antiharassment quired by the Wagner was policy, In accordance A1570, “it would be uncom- id. at Ap- harassment. report sexual trained fortable,” id. at A1572. his train- Despite at App. A1556. pellants’ occasion, and Offi- Wagner another On if the Wagner conceded ing, in a standing Bonney were cer Richard “I guess tech- superior officer: involved and ob- hallway police department at the go over that I should nically would—I Murphy walking behind Baldwin served above go I should you know. lieutenan’s— Id. at As rubbing A1573. her shoulders. that’s head, reality of it is not but the his hallway, Baldwin down the Murphy walked Wag- Id. at A1557. you would do.” what rubbing her her shoulders followed behind supe- reporting he believed ner testified In re- okay.” Id. telling her: “It’ll be employment at place his officer would rior A1734, at grimaced, id. sponse, Murphy Id. at A1559. risk. grasp, id. away from Baldwin’s pulled Wag- what backdrop this of against It Bonney testified at A1573. Officer included sev- or observed which ner heard behavior, Wag- upon observing Baldwin’s by perpetrated of instances conduct eral head and at and shook his ner “looked me plaintiffs Baldwin were offered can’t believe I can’t this or said believe ac- to have afforded as sufficient that.” Id. atA1736. of sexual notice harassment. tual on allege further Baldwin plaintiffs Wag- when instance occurred The first under their desks occasion crawled to assist by Baldwin was asked ner he legs. Wagner their testified massaged neigh- Weger’s conducting interviews under the Baldwin crawl desks observed background her check. part bors they were work- employees while female neighbors, Wag- canvassing Weger’s While initially Wagner ing. Id. at A1576-77. qualifications. Weger’s about inquired ner under Baldwin was testified he understood stating Weger used responded Baldwin something, id. at repair the desks trying had breast “big” breasts but re- to have really A1577, he did but stated not later A1562-63, Wag- at surgery. Id. duction doing, was id. what know Baldwin took him by the comments later, testified he Wagner ner testified A1578. Still giggling and Baldwin was Bald- surprise department from in the heard others anyone. employees’ Id. him to tell female win crawled under told Id. to rub or feel ankles. desks conver- strikingly had a similar Wagner aware Wagner testified he was Murphy Finally, when with Baldwin sation Baldwin, occasion, department in the referred Wagner, this hired. On remember term. Wagner he did not if testified breasts or an offensive used the term Baldwin *20 “Cap- Baldwin as “Tickle Me Elmo” and with the responsibility of reporting such Tickles,” tain unless, nicknames derived in addition to actually behavior — propensity observing harassment, from Baldwin’s known for tick- targeted ling touching employees. employee female Id. supervisors tells the that what A1580-81, at A1583. they observed and understood to be harassment, was harassment. I cannot Lieutenant William Baker has also been sign on to such a crabbed construction of with the employed Depart- Ladue Police actual notice. throughout plaintiffs’ ment tenure. Wagner, promoted Like Baker was to a An has actual notice of harass supervisory position within department ment when sufficient information either plaintiffs after the were During hired. comes to the attention of someone who has time, such Baker became aware power Baldwin the harassment, terminate the engaging was puerile offensive and con- it comes to someone who can reasonably duct directed employees. female expected towards be to report or refer a complaint Baker knew of Baldwin’s comments re- to someone who can put an end to it. garding Weger’s breasts and breast reduc- Young Bayer Corp., 123 F.3d (7th surgery Cir.1999) (citations omitted). tion Wagner conveyed “[A]ctu them to him in a conversation. Id. at al notice is such notice as is positively A1353. Baker present proved was also when to have been given party to a di Baldwin commented on Murphy’s rectly breasts personally, or such as he is general appearance. presumed Baker testified to have personally received be Baldwin stated: “She’s not much to look cause the evidence within his knowledge at, big but she has tits.” Id. at A1350. put upon inquiry.” him sufficient Baker also (6th observed Baldwin on two occa- Dictionary Black’s Law 1061-62 ed.1990) tickling added). sions a female communications su- (emphasis In the context pervisor, “[ajctual and on a claims, third occasion saw Bald- of sexual harassment no kneeling win next to supervisor the same tice is by proof established that manage with armhis around her and his face with- ment knew of the harassment.” Watson v. Circle, Inc., in an inch of 1252, 1259 her’s. Id. at A1362. Baker Blue Cir.2003) added). testified he believed the (emphasis Whereas, comments and contact were improper. childish and Id. constructive notice “is established when A1351, not, however, A1362. He did re- perva harassment was so severe and port the incidents. sive that management reasonably should added); have known of it.” Id. (emphasis There is no dispute serious over whether Stores, Inc., see also Martin v. Wal-Mart these incidents Wag- occurred or whether (8th Cir.1999) (noting an ner and Baker found them offensive. employer is deemed to have actual notice Moreover, there no dispute they is were a dangerous condition if an employee required, supervisors, report hazard). created or was aware of the observations City’s under the antiharass- Nonetheless, ment policy. the majority Given Wagner’s and Baker’s first hand concludes the cannot charged behavior, be observations of Baldwin’s it sim- actual notice of sexual ply harassment —ob- argued they cannot be did not know served first hand supervisors charged occurring.9 the harassment was More- may 9. There tively apparent. be instances where notice is not Neither of these situations single conferred the observation of a isolat- present Wagner here. and Baker observed objectiona- ed act of harassment or where the may objec- ble nature of the conduct not be *21 732 con- harassing the upset plaintiff Baker
over,
Wagner and
supervisors,
the
opinion
in the
did
City’s
duct.
Id. Nowhere
under the
antiharass
charged
were
the
only
means
duty
report
suggest
the
which
with the
court
ment
harassment.
to have
any
sexual
could
deemed
actual
stop
employer
observed
be
of
Thus,
to either
a formal
plaintiff
notice of harаssment
if the
filed
notice was
City.
Indeed,
to the
See
notice
them constituted
complaint of harassment.
Houston,
F.3d
Williamson
court discussed evidence which
the Watson
Cir.1998) (“If
(5th
employer has struc
the
filing
of
a
notice short
might provide actual
given
that a
organization
its
such
tured
the ma-
actually
it
contradicts
complaint,
no
authority
accept
has the
individual
actual notice.
Id.
jority’s narrow view of
then notice
problem,
a harassment
tice of
Minix,
Next,
on
an
majority
the
relies
to hold the
is sufficient
to that individual
opinion
the
per curiam
from
unpublished
liable.”).
evidence,
Despite this
employer
Mi-
1828259. In
11th Circuit.
WL
(cid:127)
Wagner,
neither
majority
the
concludes
nix,
company had an antiharassment
the
Baker,
charged with
the
can be
employees
designated certain
policy which
unless a formal
notice of harassment
actual
complaints could be
to whom harassment
by the victim.
In
complaint was tendered
Id.,
group
A
of employees
made.
at *2.
narrow view of actu
unduly
of this
support
had actual notice of
argued
company
the
notice,
Blue
cites Watson v.
majority
al
the
because it had been re-
their harassment
(11th
Circle, Inc.,
1252, 1259
Cir.
co-employee
a
who was
listed
ported to
Jeld-Wen, Inc.,
2003),
and Minix v.
com-
designated to receive
among those
06-16094,
578, 582,
2007 WL
Fed.Appx
No.
appeals
court of
affirmed
plaints.
Id. The
(11th
2007).
1828259, at *2
Cir. June
summary judg-
of
grant
the
court’s
district
major
supports the
Neither of these cases
of
complaint
harassment
ment because the
VII,
Title
a
ity’s
that under
conclusion
wrong person,
had been
to the
delivered
charged
responsibility
the
supervisor,
i.e.,
poli-
under the
not someone authorized
harassment,
ignore
free to
reporting
of
The
did
cy
complaints.
to receive
court
is filed.
it unless
employer
only way
that the
not hold
Watson,
by a female
allegations
involved
to,
harass-
receive actual notice of sexual
company who
employee of a concrete
complaint.
ment is
be served
the
sexually harassed on
claimed she was
Minix, a case from our court
Unlike
plaintiff
of-
F.3d at 1255.
job.
Hall
plaintiffs’ position.
the
See
supports
of
of numerous incidents
fered evidence
Co.,
Construing the evidence favor of the you like procedure.” had a Id. plaintiffs, apparent Wagner it is and Baker routinely subjected Weger, knew Baldwin The plaintiffs also testified were Murphy, employees generally, and female present when Baldwin harassed other fe- reasonably to loutish behavior which could employees, male and were subjectively be construed as sexual I am harassment. aware of those incidents. For example, any unable to uncover support cases to the Murphy was present when Baldwin majority’s supervisors’ conclusion crawled under Goin’sworkstation and then first hand observations of Baldwin’s con- massaged her shoulders. Id. at A150-51. charge duct were insufficient to them and She privy was also involving incidents City with actual notice of the harass- Allison, supervisor. communications ment. am I any princi- Nor able to divine Id. at Weger testified she witnessed that, pled holding reason for in the context instances when Baldwin tickled Allison and claims, of Title VII actual notice should be hugged Murphy. Id. at A267. knowledge gained by defined to exclude Detective Chris Schmitz: Schmitz testi- experiencing or observing wrongful con- fied he heard Baldwin referred to by other Accordingly, duct first hand. I dissent police department members of the majority’s from contrary conclusion. “Captain Tickles” and “Tickle Me Elmo.”
II. He stated the nicknames were in reference propensity Baldwin’s known for tickling I majority’s also dissent from the hold- employees. female Appellants’ App. at ing Weger as to Murphy failing A1619-22. Schmitz also described an inci- present prove sufficient evidence to involving dent Baldwin and a female em- City reasonably should have known of ployee, Kristin Goin. Schmitz stated he Baldwin’s offensive conduct. In addition stopped by dispatch workstations to to the Wagner first hand observations of speak there, with Murphy. While he no- above, and Baker detailed the record con- ticed lying Baldwin on the floor under- following tains the support evidence in plaintiffs’ claim neath Goin’s workstation. should have After several minutes, engaged known Baldwin was in a pattern up began Baldwin stood mas- of sexual harassment.10 shoulders, saging telling every- Goin’s her thing alright would be to worry. not
Weger Murphy: Murphy testified Id. at A1626-27. Schmitz testified Bald- her, Wagner told within a few months of only “Sir, win stopped after said: if Goin hire, her that Baldwin had commented she you don’t mind.” Schmitz believed Bald- at, “wasn’t much to look but ... big had inappropriate win’s actions were but did tits.” Appellants’ App. Similarly, at A159. report them employ- out of fear for his Weger testified she told during Baldwin Finally, ment. Id. at A1627-28. process her interview Schmitz undergone she had surgery. breast reduction testified that when Baldwin in- Some months conducted later, told her Wagner prospective Baldwin informed employees, terviеws female majority 10. The notes the district court con- ment. We are limited the record —not examples alleged sidered six sexual harass- what the district court chose to consider. Id. up it[.]” putting kind of she was bu- to the detective down would come he he also testified A1705. Lucas and describe interviews after reau female to the officers Baldwin discussed when appearance present applicant’s each tits, great specifically He “big employees. like: terms present using applicants lips.” dick-sucking ass, legs or bureau long being nice in the detective recalled de- Id. at A1646-47. Baldwin Schmitz when along with having large has applicant one scribed Norman testi- Norman: Detective Glen further testi- at 1706. Lucas “tits”. Id. the com- he entered one fied on occasion inappro- Baldwin’s discussed fied he had Murphy where worked area munications members of with other priate conduct his arm around Baldwin with and observed *23 Baker, and including Schmitz department, Murphy’s shoulder, close to leaning her conduct. observing similar reported who Norman testified Id. at A1664-66. face. Notwithstanding the to- up and walked at abruptly stood Id. A1709-11. Murphy did, Murphy whis- Lucas stated: policy, As she City’s him. antiharassment wards him.” Id. Norman stand thrilled about “I can’t real pered: have been “I wouldn’t from others he had further testified heard Id. anything.” saying and coming forward would be diffi- Weger that Baldwin stated at A1713. vest because bulletproof fit for a cult to Bonney Bonney: testi- Richard Officer “Murphy and large breasts she had up behind Baldwin come fied he observed at, somebody would to look but not much copier, the facing when she was Murphy long.” Id. аt A1666- that f-ing before
be waist, her. and tickle the grab her around he those indicated discussed 67. Norman go let of stop him to he Murphy told When Schmitz and comments with co-workers to behind as she walked her followed but Finally, testified Lucas. Norman Bryan if out as he was “with his hands her desk was known Baldwin he was aware ... again, and she told to her going tickle “Captain as department the throughout Id. at A1733. him to leave alone.” [her] “Tickle Me Elmo” he Tickles” and occasion, Bonney witnessed On another employees. female Id. frequently tickled shoulders as rubbing Murphy’s Baldwin at A1680-81. Bonney hallway. stat- down she walked Lucas con- Bryan Lucas: Detective away turned from grimaced and ed: “[S]he throughout known the Baldwin was firmed her grip if off of to break his him like—as “Captain Tickles” and department Id. atA1734. shoulders.” Elmo,” the nick- acquired “Tickle Me ... is established notice “Constructive he was known tickle names because severe harassment was so when the at Lu- Id. A1701-02. employees. female reasonably management pervasive Baldwin he observed tickle cas testified Watson, 324 known of it.” should have stated: “I Allison. Lucas dispatcher Pat may be employer at 1259. “[A]n F.3d then I laugh, heard heard her start knowledge of charged constructive with it, sir, Baldwin, quit say, Captain her ... if the harassment previous sexual laughing.” while she was Id. you’re so bad so scope, was so broad harassment he found the A1703-04. Lucas testified it workplace, must permeated it later mentioned odd and incident someone attention have come occasion, Id. On another of Chris Schmitz. it.” something about to do authorized area and ob- dispatch Lucas enterеd Tr., F.Supp.2d Bd. Fall v. Univ. Ind. standing by Weger rub- Baldwin served added) (N.D.Ind.1998) (emphasis by, walked As he bing her shoulders. omitted). (citations eyes Weger “[l]ike roll her Lucas observed can be constructive notice in two harassment frequently, occurred [T]here continued an employee provides situations: where period years, over a was obvious to personnel level management it, those who observed and would have enough probability information to raise a easily been City’s rep- discoverable harassment in the mind of a of sexual resentatives. or employer,
reasonable where the analysis notice, its of constructive pervasive and open so majority only considers six incidents of employer that a reasonable would have harassment, thereby discounting ignor- had to be aware of it. ing most of the incidents detailed within example, record. For majority standards strike the [T]hese correct bal- does not mention incidents of harassment protecting ance between rights involving other employees. female The employee employer by and the fault- majority’s failure to consider this evidence ing turning eye blind legally is neither nor factually sound. signs to overt of harassment but not plaintiffs did not offer evidence rele- requiring it to attain a level of omni- City’s vant to the constructive notice to science, in the absence of actual no- *24 prove their sexual substantive harassment .... tice plaintiffs claims. If were unaware of these Co., Kunin v. Sears Roebuck and incidents, the bearing evidence has no on (3d Cir.1999). 289, 294 subjective their perceptions of the work- light Viewed thе most favorable to the place. Conversely, the evidence highly plaintiffs, the evidence establishes conclu- probative City, of whether the had it been sively harassing that Baldwin’s behavior paying as much attention as a reasonable Wagner came to the attention of and Bak- employer, should have discovered Bald- er, and, supervisors, they were author- win’s sexual harassment. When judging ized—in fact mandated —to do something severity pervasiveness the of work- it City’s about under the antiharassment harassment, place sexual our court has policy. Such evidence alone is sufficient to long held harassment directed to- prove actual notice—I cannot fathom how wards other female employees is relevant majority’s it also fails the constructive no- Hall, and must be considered. See tice test. (“We reject F.2d at 1014-15 also appel- however, Additionally, several other em- lants’ contention that the district court er- ployees testified Baldwin’s antics were roneously considered all of the women’s knowledge department. common within the together determining claims the throughout He was known as “Captain sufficiently harassment was pervasive and Tickles” and “Tickle Me Elmo” of because ”). severe.... affinity his for tickling employees. female Co., ConAgra In Williams v. Poultry Employees openly talked with one another (8th Cir.2004), 793-94 this behavior, about Baldwin’s describing it as court discussed the distinction between odd, childish, Moreover, and offensive. evidence to prove the substance of offered Baldwin’s offensive conduct was not re- plaintiffs hostile work еnvironment plaintiffs. served for the The evidence claim versus evidence prove offered to demonstrates he harassed other female severity and pervasiveness of harassment employees similarly. Considering all the Williams, In workplace. plain- plaintiffs, evidence marshaled a rea- (Williams) sonable tiff testimony should have been offered the aware of Baldwin’s sexual harassment. The detailing several co-workers a host of ra- prove to clearly relevant behavior is oc- sive which
dally motivated reasonably in fail- City acted at Cona- whether during employment his curred objected occurring within Conagra was at 793. to discover what plant. ing Id. gra’s un- he was conceded department. Williams police incidents, according of the aware be used could not Conagra, the evidence III. workplace found the prove Williams sufficient presented have plaintiffs This Id. at 794. subjectively hostile. or should City knew to show evidence irrele- court, the evidence was recognizing harassing behav- Baldwin’s have known of subjective perceptions
vant to Williams’s correct promptly to failed to act ior and found the nonetheless workplace, of his Therefore, has the harassment. among prove, highly relevant evidence Ac- defense. the affirmative proved workplace envi- things, type other grant I would reverse cordingly, Id. subjected to. ronment Williams fur- remand for summary judgment and prove Therefore, not relevant evidence respectfully I dissent. proceedings. ther may perceptions be subjective plaintiffs purposеs. other relevant for here. As- reasoning applies
The same inci- unaware of the plaintiffs were
suming
dents, prove be used to they cannot environment hostile work
substantive is, however, relevant The evidence
claims. notice. of constructive
to the issue *25 words, account the sum taking into other Individually BASS, and as David behavior, its fre- objectionable of Baldwin’s Kimberly Bass, husband of duration, blatancy, should a quency, Plaintiff/Appellee, it? have discovered reasonable Individually Kimberly Bass, and as sec- discloses supervisor Assume a Bass, Plaintiff, David wife of engage his intention supervisor ond clearly towards female behavior harassment, or admits sexual constituting J, INC., doing business FLYING engaged in sexual having previously Plaza, Flying J Travel employees. towards female Defendant/Appellant. compelling be an admission would Such actual and con- employer’s of the evidence 06-3350. No. notice, i.e., au- did someone with structive Appeals, States Court United with au- or should someone
thority know Eighth Circuit. known about the harassment. thority have majority’s reasoning, this clear Under May Submitted: disregarded would be evidence of notice 14, 2007. Sept. Filed: Nothing complaint was made. because no suggests I have uncovered the cases employers to turn blind Title VII allows reasonably
eye to what discovered The evi- workplace. in the
discoverable by the which dem- plaintiffs
dence offered offen- of Baldwin’s
onstrates the breadth
notes
Plaintiffs’
Allison’s
§
record both
and
U.S.C.
violation of the
stcomplaint work activities
By
as well as Fourteenth Amendment.
an order
negative
and
events
positive
30,'2004,
for
December
the district court
days
requests
Plaintiffs’ sick
and
leave.
dated
against
MHRA claims
dismissed Plaintiffs’
2003,
for the first
Department,
Wickenhauser,
and
Baldwin
their indi-
hired,
time since Plaintiffs were
reinstitut-
capacities, finding
vidual
Plaintiffs had
annual written evalu-
policy requiring
aed
against
a claim
failed
state
thеm as
officers. On
ations for all communications
matter of law.
5, 2003,
four months after
March
about
Weger underwent her
complaint,
Plaintiffs’
1, 2005,
On June
the Defendants
review, receiving the
performance
first
summary judgment
moved for
on the
in all
two cate-
possible marks
but
highest
remaining
Plaintiffs’
claims. The district
quality
personal
of work and
rela-
gories,
all
granted
court
the motion
dismissed
tions, for
earned above standard
which she
(1)
claims, finding
of the Plaintiffs’
that:
marks,
It
respectively.
ap-
and standard
the hostile work environment
sexual
undergo
pears
Murphy
did
her
because,
harassment claims
assum
failed
5,
until March
performance
first
review
prima
facie
ing Plaintiffs demonstrated
2004,
after Plaintiffs’
about sixteen months
case, the Defendants established the affir
above stan-
complaint. Murphy received
Supreme
announced
mative defense
categories, re-
ratings
dard
in all but two
Industries,
Burlington
Inc. v.
Court
contacts,
personal
porting habits
Ellerth,
2257, 141
524 U.S.
118 S.Ct.
and needs
which she received standard
(1998)
Faragher
L.Ed.2d 633
respectively.
improvement ratings,
Raton,
118 S.Ct.
Boca
U.S.
charges
(“Ellerlh-Faragher
of sexu-
Notes
standard notes positive or neutral and Plaintiffs have Fourth, th'e fact that Plaintiffs any allegation failed to raise as to how the