*1 972 (Minn.1977); Ryan see also v. ITT occupation, disability he is entitled to total Life (Minn. 126, Corp.,
Ins. benefits under N.W.2d Minnesota law. 1990) (stating long “Minnesota law has III. disability
held occupation that total CONCLUSION al physical sense does not mean absolute affirm judgment We of the district inability engage kind of business court. pertaining occupation”); Blazek v. Co., 180, N. Am. & 251 Minn. Cas. Life (1957) jury 41 n. 2 (approving
N.W.2d phrase explaining “totally
instruction literal require
disabled” does not construc
tion).
law,
Under Minnesota
an insured
benefits,
disability
be entitled to total
regardless
important
of tlm number of
WILLIAMS; Angela
Suzzette
perform
an
can
duties
insured still
in iso
Conner, Appellants,
Laidlaw,
lation. See
Under the Minnesota law forth set in Weum and progeny, its States of Appeals, United Court court correctly Dr. concluded Dowdle is Eighth Circuit. totally disabled. At the time he incurred disability, his Dr. Dowdle engaged was Submitted: Jan. 2005. predominantly in occupation or of an May Filed: 2005. thopedic surgeon. parties agree The Dr. practice IME separate Dowdle’s from surgery practice.
distinct his There
fore, the fact that Dr. performed Dowdle
IMEs both before and after the accident bearing
has no on Dr. whether can Dowdle
perform the “material and substantial being
duties” orthopedic surgeon.
National Life concedes Dr. Dowdle can
longer perform orthopedic surgery, which clearly the most important substantial duty occupa material of Dr. Dowdle’s
tion as an orthopedic surgeon. Because
Dr. disability prevents Dowdle’s him from
performing important the most part of his *2 Sandhaus, Leawood, argued,
Ronald E. Park, Jackson, KS, (Kelly MO Overland on brief), appellant. for Vasterling, argued, Gail Assistant Attor- MO, General, ney City, ap- Jefferson for pellee. n SMITH, MELLOY,
Before COLLOTON, Judges. Circuit SMITH, Judge. Circuit (“Williams”) and Suzzette Williams (“Conner”) Angela each asserted a environment under claim for hostile work Department Title VII the Missouri against (“MDMH”) Dan of Mental Health (“Thornton”), Superintendent Thornton Habilitation Center Higginsville (“HHC”), operated MDMH. which District Court1 for the The United States Wright, 1. The Scott O. United Missouri. Honorable Judge for the Western District States District granted personal -District of sum asked inappropriate questions, Western Missouri himself, exposed offensively mary judgment favor of MDMH touched Williams and Conner.3 MDMH did finding they met the re Thornton dispute that Miller acts. committed these of the affirmative defense es quirements *3 Instead, MDMH raised the affirmative de Burlington Inc. v. El tablished Indus. 2257, 141 Burlington fense announced Inc. lerth, 742, 765, 118 Indus. 524 U.S. S.Ct. Ellerth, 742, 765, v. 524 (1998) U.S. Faragher City 633 v. L.Ed.2d and (1998) 2257, 141 L.Ed.2d 633 and Raton, 775, 807-08, 524 118 Boca U.S. Raton, 775, (1998). City Boca 524 807- 2275, 141 S.Ct. L.Ed.2d 662 2275, (1998), 141 L.Ed.2d 662 S.Ct. appeal and Conner Williams argued and that Conner and were Williams grant summary judgment. court’s in failing report unreasonable to the I. Background and that allege
Williams
Conner
their
tempo-
months
About five
after Miller’s
temporary
ended,
supervisor,
former
Ronald Dale
rary assignment
Hatheway
Debi
(“Miller”),
work
supervisor
ap-
Miller
created a hostile
(“Hatheway”),
at HHC
at
II
proached
environment
HHC’s Crestview
resi-
regarding
appropri-
Williams
the
unit
work
they
dential
where
worked. Miller
ateness of her
attire.
re-
Williams
at
II
for
sponded
worked
the Crestview
sever-
in a tirade and made
Unit
statements
Spring
supervisor
al
of 2000.2 Both about an unnamed former
that
weeks
allege
prompted Hatheway
and Conner
that Miller
to inquire
Williams
further.
supervisor,
swimming pool
2. Miller was Williams’s direct
but
and
were in HHC’s
Miller
clients,
super-
watching
it is unclear whether he was Conner's
up
Miller would swim
be-
purposes
appeal,
For
of this
we as-
grab
try
visor.
hind
and
her
Conner
breasts and
to
directly supervised
sume Miller
Conner.
put
legs.
his hand between her
On another
occasion, Conner was asked to assist Miller in
occasion,
approached
3. On one
Miller
transporting
department’s
a client in the
van.
pulled
expose
HHC,
pants
and
to
Williams
down his
On the ride back to
over
Miller reached
"Man,
said,
genitals.
his
He then
look how
pull up
and tried to
Conner's shirt
bra.
and
exposed
is.”
hard it
Miller also
himself to
exposed
penis
Miller
his
and
then
asked Con-
evening.
Williams
second time
On
that
"like
ner if she would
to see how fast a worm
occasion,
another
when
was
Williams
ride,
grow?” During
could
another
Miller
room,
doorway
Miller
and
client’s
to the
came
Conner, exposed
groped
penis,
kept
his
and
exposed and fondled
of her
himself in front
asking her to touch and stroke it.
approached
the client.
and
Miller also
Both Conner and Williams
that
confirmed
when
with
Williams
she was on a sofa
two
competent
testify
there were no
witnesses to
’
pulled open
clients. On this occasion he
acts of misconduct.
sex-
Miller's
MDMH’s
neck of Williams’s
at her
blouse to look
policy requires employees
ual harassment
time,
breasts. Another
Miller asked Williams
harassed,
perceive
or
who are
that harass-
machine,
go
copy
him
to with
to the
where he
occurring
workplace,
ment
be
in the
her,
up against
brushed
touched her breasts
supervisor,
to a
incident
or if
buttocks,
again exposed
and
himself.
harasser,
managers
or
other
section,
per-
in their
administrators
or
exposed
Miller admitted that he
himself to
acknowledged
Williams
sonnel office.
receiv-
multiple
on
Conner
occasions. The first inci-
reading
ing and
MDMH’s sexual harassment
dent
after
occurred
Miller called Conner into
received,
policy.
but did
not read
his
and asked her
door. He
office
to shut the
did, however,
policy;
training
she
attend
on
pulled
pants
exposed
then
down his
him-
during
sexual
asking
orientation
self
after
if she "wanted to see
reporting procedure
was a
something grow.”
evening,
knew there
Miller
That same
place
grabbed
being sexually
if she
ha-
Conner’s breasts and
On
to use
buttocks.
approximately
employee.
three occasions while Conner
rassed as an
actions,
time,
as such actions are
then,
employment
related
for the first
inherently
Mayer
fact based.”
v. Nextel
to an
of Miller’s misconduct
the facts
Corp.,
re-
318 F.3d
Cir.
Hatheway promptly
West
official.
MDMH
2003) (citing Keathley
Corp.,
v. Ameritech
allegations to MDMH
ported the
(8th Cir.1999)).
on
placed
Miller was
shortly thereafter
investiga-
pending
leave
administrative
To establish a cause of action for
allegations. Conner
into Williams’s
tion
sexual harass
hostile-work-environment
Miller re-
reported the harassment.
never
(1)
ment,
prove
and Conner must
before
department
from the
signed
(2)
they belong
protected group;
to a
further action was taken.
(3)
harassed;
they
sexually
have been
*4
filed this hos-
subsequently
Both women
gender;
harassment was based on
that the
harassment
environment sexual
tile work
(4)
unwelcome;
that
the harassment
granted sum-
The district court
lawsuit.
(5)
affected a
and
that
the harassment
claims, finding
mary judgment on their
condition,
term,
of
privilege
employ
or
and Conner
although
that
both Williams
Co.,
v. Nestle
181 F.3d
ment. Scusa
USA
case, MDMH
prima
a
facie
established
(8th Cir.1999).
actionable,
958,
“To
964
be
Miller’s
prevented and corrected
promptly
objectively
harassment must be both
and
The district
sexually harassing behavior.
offensive,
subjectively
such that a reason
and Conner
court also found that Williams
consider it to
hostile
person
able
would
be
advantage
take
of
unreasonably failed to
Breeding v. Arthur J.
or abusive.”
Galla
opportuni-
preventative and corrective
(8th
Co.,
1151,
gher and
164 F.3d
1158
harm.
provided by MDMH to avoid
ties
Cir.1999);
Moring
see also
v. Arkansas
of sum-
and Conner seek reversal
(8th
Correction,
452,
Dept.
243 F.3d
455
of
and
mary judgment
in favor of MDMH
Cir.2001).
that
undisputed
It
is
both
court
arguing that
Thornton
prima
a
and Conner established
Faragher and Ellerth.
misapplied
facie case.4
II. Discussion
the harassment
this
Because
by
who
case was committed
or denial of sum-
grant
We review the
Conner,
and
MDMH
supervised Williams
novo, applying
de
the same
mary judgment
vicariously
for the harassment un
is
liable
may
as the district court
standard
it
the affirmative defense
less
can establish
supported by the rec-
grounds
affirm on
Indus., Inc. v.
Burlington
established
Rosemount, 104
City
v.
ord. Bechtold
of
2257,
Ellerth,
742, 765,
118 S.Ct.
Cir.1997).
(8th
Summary
F.3d
(1998),
v.
ventative or processes. corrective Over Markets, Inc., ner v. Super Nat'l elapsed four months before MDMH be- (8th Cir.1996) 1213-14 for their con came aware of Miller’s conduct and then tentions. However their reliance is mis only through a report by initiated neither placed factually as that case is distinguish plaintiff but supervisor. Williams’s Varner, able. In we held insufficient a
Williams and Conner contend that both sexual policy that allowed a Faragher/Ellerbh elements supervisor affirma- to remain silent notwithstand tive require finding a ing of reason- his knowledge of incidents of sexual ableness on the employer’s and the vic- reporting harassment when the harass actions-questions tim’s left to jury best a ment would require to skip to determine. While Williams and steps employer’s chain of command. concede very few facts are in dispute, Id. While we understood the employer’s they maintain that the inferences that can desire to utilize a struc chain-of-command ture, be drawn from hotly those facts remain procedure its fell short of that which Specifically, contested. Williams and might Con- absolve an liability. Id. anyone. reported the encourage such a havior to policy does MDMH’s only longer after she no and ex- harassment structure rigid chain-of-command when, with Miller four months af- worked victims of sexual harass- pressly permits fact, supervisor pressed ter the her for in the chain-of-com- skip steps ment unspecified allegations details of of miscon- reporting mand when sexual duct. the various policy MDMH’s identifies just supervi- the immediate
employees, not argue both sor, employees may of MDMH to whom delay, that their or Conner’s case com verbally or report a violation either by their plete report, failure to is excused procedure, writing. Through grievance shame, its shock and humiliation. As noted Circuit, an alternate course provides also policy by the Seventh victim of “[w]hile behavior. complaining prohibited may legitimately about feel sexual harassment investigatory procedure provided discussing The uncomfortable the harassment of all policy employees employer, unpleas notice with an that inevitable gives from upon filing occur a com- antness cannot excuse the events that will using company’s complaint tolerance mecha Non-retaliation and zero plaint. AutoZone, Inc., F.3d from ad- nisms.” Shaw v. protect employees also provisions Cir.1999). An has from their com- resulting, verse actions duty under Ellerbh to alert the “[e]mployees plaint. policy The adds any allegedly hostile environment and necessary,” if and states reassigned will be subjective of confron employee’s “an fears will insure “confiden- investigation that the tation, or retaliation do unpleasantness[ ] possible.” tiality to the maximum extent *6 duty employee’s not alleviate the under and every employee, Like other Williams employer alleg alert the to the Ellerth to new participated Conner edly hostile environment.” Id. Given the commencement of em- upon orientation Miller, against it allegations nature of the fair ployment. The orientation covered promptly report not to was unreasonable employment practices grievance pro- and his conduct. and received cedures. Williams Conner and were aware of the sexual harassment that argue and Conner also Williams policies and the handbook. We reasonably reporting not Mil- they acted the district court that there are agree with that policy provides MDMH’s ler because genuine regard- issues of material fact initiated investigation an immediate will be ing the reasonableness of MDMH’s sexual and, therefore, if days within five even policy. immediately, they reported had Miller days an investi- begin MDMH “had five Second, argue that and Conner Williams perform time to a gation enough and then in finding court erred that they would thorough investigation before fact whether there no material issue of was Miller.” This against taken action have unreasonably and de- Williams square not with the undis- argument does harassment. Ac- layed reporting Miller’s put on administra- puted facts. Miller was Conner, MDMH cording to investigation was prompt leave and a tive they unreasonable cannot show that were learn- days three of MDMH begun within reporting to use the mechanism. failing of Miller’s conduct. ing and Conner disagree. Both Williams We Third, that argue and Conner they knew Miller’s conduct admitted that an actionable hostile work very in- Miller created inappropriate from the first the first one or two stance, the be- environment after yet reported never harassment, and advantage preventative incidents of thus Williams ee takes or cor opportunities provided and Conner had an actionable claim from rective by the em beginning ployer of the In and the employer, Todd thereafter takes Biotech, Inc., swift v. Ortho and effective action to avoid further (8th Cir.1999), offensive conduct suggested single underlying we “that a stands the can, policy behind the severe act of affirmative defense on sexual harassment with- its more, “[djenying head.” Id. We noted that out constitute a hostile work envi- employer such an an opportunity to avail ronment that is actionable under Title defense, itself of the affirmative when the square- VIL” While the issue has not been addressed, employer has done all that an ly employer “portions opinions of the in' reasonably expected could be Ellerth and to do to cast doubt on its remedy behavior, avoid and offending resolution.” Id. We noted in that Todd effectively Faragher/Ellerth liability creates strict for em “affirmative defense was ployers in single adopted case-contrary to avoid ‘automatic’ incident employer lia- bility Supreme holding Court’s give employers and to credit to Meritor who [ Bank, Vinson, make FSB prevent reasonable efforts to Sav. (citation remedy sexual L.Ed.2d 49 harassment.” Id. (1986) omitted). Moreover, Id. ].” also hold other “[t]o We noted Far- “[the defense, wise would agher/Ellerth] promise make the of an affir adopted in cases mative in single incident ongoing involved cases not sexual harassment in involving tangible workplace, may protect employment not an action il lusory-the pragmatic from automatic result would be to single, cases of ... severe, hold ... strictly liable for unanticipatable employers sexual harassment all unless, single incidents of supervisor example, for harass harassment does ment, allowing while employers other ripen into an actionable hostile work affirmative defense for multiple ongo environment claim until ing incidents of supervisor harassment.” learns that the harassment has occurred Id. proper fails take remedial action.” Id. This case does not single, involve a se- *7 vere, unanticipated act of sexual harass- recently
Most in McCurdy v. Arkansas ment. The sexual harassment in this case Police, (8th State 375 F.3d Cir. ongoing involved sexual harassment of ex- 2004), we discussed the applicability of the actly type Faragher the and Ellerth ad- Faragher/Ellerth affirmative in dress. The district court did not 'in err the context of a factual involving scenario applying Faragher/Ellerth the affirmative a single by incident of sexual harassment defense to the facts of this case. employer. an We held that Supreme “the Court, in crafting the Ellerth/Faragher af Finally, Williams and Conner argue that defense, firmative did not change course the district court erred in holding that an in sexual jurisprudence by harassment employer escapes liability all when a ha- holding employers strictly single liable for employee unreasonably rassed delays re- supervisor incidents of sexual harass porting the harassment. This is also a ment.” Id. at 772. In so holding, we mischaracterization of the district court’s reasoned that “[t]o reach conclusion that decision.5 The district granted court sum- the affirmative defense is unavailable in mary in judgment favor of MDMH be- single in incident cases which employ- the cause the district court found that MDMH 5. See footnote 2. Faragher in unavailable Faragh- The defense was of the both elements
established
to exer
employer
the
had failed
agree
affirmative
because
defense. We
er/Ellerth
harass
prevent
of
care to
grant
court’s
cise reasonable
and affirm
808, 118
2275.
in
of MDMH and
Id. at
S.Ct.
favor
ment.
summary judgment
Thornton.
appellants’
I
the
why
reason
believe
The
that it is foreclosed
argument
third
fails is
COLLOTON,
concurring
Judge,
Circuit
McCurdy
in
v. Arkansas
by our decision
judgment.
in the
concurring
part
in
Cir.2004).
Police,
State
of the court
judgment
I
in the
concur
not direct-
McCurdy
question
considered a
I
ad-
but would
opinion,
and most of its
Faragher,
in Ellerth and
ly addressed
a bit
argument
third
appellants’
dress the
liability
to
that an affirmative defense
held
argue that be-
differently.
appellants
The
of
where a severe act
is available even
of
or two incidents
cause the first one
creates
sexual harassment
in
severe
this case were
sexual harassment
hostile work environment be-
an actionable
an actionable
they had
unanticipated,
to
opportunity
the
has an
fore
of the harass-
beginning
from the
claim
employer
complaint,
long
make a
as
as the
ment,
to liabili-
affirmative defense
and the
action to
“takes swift and effective
insulate
City Boca
Faragher
ty announced
of
employee from further
complaining
the
807-08,
Raton,
118 S.Ct.
524 U.S.
the moment
(1998),
Burling-
hostile harassment, such
or two incidents pre- opportunity employees had In it occurred. an-
vent the harm before under the
nouncing the affirmative defense case, *8 the Ellerth
circumstances of that it “could contemplate seemed to
Court harassing
encourage employees perva- or it becomes severe
conduct before (em-
sive,” at 118 S.Ct. U.S. added), is, action- before it is
phasis Faragher, the Court Similarly, in
able. by say- the affirmative
explained could have avoided
ing that the victim “[i]f
harm, against found should be who had taken reasonable 2275. at
care.”