RECENT EMPLOYMENT LAW DEVELOPMENTS IN THE EIGHTH CIRCUIT
By
Sarah E. Morris
The Eighth Circuit Court of Appeals issued a plethora of important rulings on federal employment law claims during the past year. In sexual harassment cases confirming that fact is often stranger than fiction, the Court’s decisions continued to demonstrate the high threshold plaintiffs must surmount to overcome summary judgment. In addition, the Court established a causation defense under the Family & Medical Leave Act, addressed the Uniform Services Employment & Reemployment Rights Act for the first time and reversed summary judgment on an Americans With Disabilities Act claim prosecuted by an employee fired after giving birth to a child with Down’s Syndrome.
Title VII
The Eighth Circuit Court of Appeals’ recent decisions in the sexual harassment arena continue to hold plaintiffs to a very high standard on summary judgment and LeGrand v. Area Res. for Comm. & Human Servs., 394 F.3d 1098 (8th Cir. 2005) is no exception. In LeGrand, the Court rejected claims based on a non-profit board member’s sexual advances to an employee. Plaintiff worked as a neighborhood facilitator for Defendant, a non-profit organization. Id. at 1099. As part of his job, Plaintiff worked with Father Maurice Nutt (“Nutt”). Id. at 1099-1100. Although Nutt was an ARCHS board member, he did not make any decisions or recommendations regarding employment matters. Id. at 1100.
Plaintiff alleged that in March 2001 Nutt “asked [Plaintiff] to watch pornographic movies with him and ‘to j*** off with him’ to relieve stress.” Id. Plaintiff declined and reported the incident to his direct supervisors, who asked him to document the incident in writing. Id. Plaintiff again encountered Nutt in November 2001 at which time Nutt allegedly “(1) mentioned the pornographic movies again; (2) suggested [Plaintiff] would advance in the company, if he watched ‘these flicks’ and ‘jerk[ed Father Nutt’s] d*** off’; (3) ‘kissed [Plaintiff] in the mouth’; (4) grabbed [Plaintiff’s] buttocks; and (5) ‘reached for [Plaintiff’s] genitals’.” Id. The third and final incident occurred in December 2001 when Nutt allegedly gripped Plaintiff’s thigh while seated at a table during Defendant’s meeting. Id.
Plaintiff sued Defendant in the United States District Court for the Eastern District of Missouri and claimed that Nutt’s sexual advances constituted quid pro quo sexual harassment and created a hostile work environment. Id. at 1101. The district court concluded that Plaintiff’s quid pro quo sexual harassment claim failed because he did not establish that he was subjected to a “tangible employment action” as a consequence of spurning Nutt’s sexual advances. Id.
On appeal, the Court noted that in order to establish a prima facie case of hostile work environment sexual harassment, Plaintiff had to prove “(1) he was a member of a protected group, (2) he was subjected to unwelcome sexual harassment, (3) the harassment was based on sex, and (4) the harassment affected a term, condition, or privilege of his employment.” Id. (citations omitted). It held that Plaintiff failed to satisfy the fourth element of the prima facie case because he could not “demonstrate the unwelcome harassment was sufficiently severe or pervasive as to affect a term, condition, or privilege of employment by creating an objectively hostile or abusive environment.” Id. (citation omitted). The Court observed that to be actionable, “conduct must be extreme and not merely rude or unpleasant”; that “[m]ore than a few isolated incidents are required”; and Plaintiff had to prove that his “workplace was ‘permeated with discriminatory intimidation, ridicule, and insult.’” Id. at 1101-1102 (citations omitted). Further, the Court noted that it must consider “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance” Id. at 1102 (citations omitted).
Although it characterized Nutt’s behavior as “crass,” “churlish,” and “manifestly inappropriate,” the Court affirmed the district court’s grant of summary judgment. It concluded that Nutt’s “behavior did not rise to the level of actionable hostile work environment sexual harassment” because “the three isolated incidents, which occurred over a nine-month period, were not so severe or pervasive as to poison [Plaintiff’s] work environment.” Id. at 1102-1103. Of significance to the Court was the fact that Nutt’s behavior was not “physically violent or overtly threatening.” Id. at 1102.
In Pedroza v. Cintas Corp. No. 2, 397 F.3d 1063 (8th Cir. 2005), the Court addressed the showing required to raise a jury question as to whether harassment is based upon gender in the female same sex harassment context. Plaintiff worked as a “team leader” for Defendant. Id. at 10, 70-71. According to Plaintiff, co-worker Straw began a pattern of harassing behavior in May 2000 when she attempted to hold Plaintiff’s hand. When Plaintiff rebuffed Straw’s overtures, Straw allegedly said, “You want me to kiss you, honey?” Id. Straw then grabbed Plaintiff’s face in an attempt to kiss her on the lips, but only managed to land a “wet kiss” on Plaintiff’s cheek. Id. After landing the kiss, Straw allegedly said, “You love it, honey.” Id.
In June 2000, Straw bent over and rubbed her buttocks in front of Plaintiff and said, “Kiss it Terri. You love it.” Id. Later that same month, Straw again grabbed Plaintiff’s face in an attempt to kiss her; however, Plaintiff “jerked away.” In response, Straw said, “Kiss my a**.” Id. Plaintiff alleged that throughout the summer of 2000 Straw “repeatedly blew kisses at [her], used foul language . . . and rubbed her own buttocks while looking at [Plaintiff].” Id. Straw’s behavior persisted through September 2000, when Plaintiff resigned. Id. at 1067.
Plaintiff sued Defendant in the United States District Court for the Western District of Missouri for hostile work environment sexual harassment, retaliation, and constructive discharge under Title VII. Id. The district court granted Defendant’s motion for summary judgment and concluded that there was insufficient evidence to create a question of material fact as to whether Straw’s harassing conduct was based on sex. Id.
The Court observed that in order to show the harassment was based upon sex as part of her prima facie case, Plaintiff had to prove “she was the target of harassment because of her sex and that the offensive behavior was not merely non-actionable, vulgar behavior.” Id. (citation omitted). The Court noted that the United States Supreme Court had set forth “a non-exhaustive list that included three possible evidentiary routes same-sex harassment plaintiffs may follow to show that harassment was based on sex” and that one of them, whether “a plaintiff can show that the [harassing] conduct was motivated by sexual desire,” was applicable to the facts of this matter. Id. Plaintiff had to rely “solely on the nature of Straw’s harassing actions,” such as her attempts to kiss Plaintiff, blowing kisses, and off-color comments “as evidence that sexual desire motivated Straw’s behavior.” Id. at 1069.
In opposition to Plaintiff’s attempts to prove that Straw’s behavior was sexually motivated, Defendant cited the facts that Straw had five children from a previous marriage and a long-term live-in boyfriend. Id. The Court noted, “[t]hese facts tend to prove only that Straw was not strictly homosexual. They do not preclude a jury from finding that Straw was motivated by some degree of homosexual desire towards [Plaintiff].” Id. at n. 2.
Citing to male same sex harassment cases, Straw contended that her actions were merely vulgar or boorish and that a jury could not therefore, “infer homosexual desire.” Id. at 1070. Plaintiff asserted that because this case involved same-sex harassment between females, the Court should apply a different standard, because “bawdy, 'locker room' behavior is not as commonplace among females.” Id. Plaintiff asserted that “a reasonable jury could more readily infer actual sexual desire based on similar statements or acts by females” because such conduct was not as common between females. Id.
The Court concluded it was inappropriate “to establish dual standards for the ‘based on sex’ showing required in male and female same-sex harassment cases;” therefore, it could “look to cases that involve male same-sex harassment to determine whether a female same-sex harassment plaintiff has made the required showing to create a jury question under the based on sex requirement.” Id. Based upon the facts alleged by Plaintiff and the “developing body of authority under the ‘based on sex’ analysis,’” the court affirmed the district court’s holding “that the evidence to suggest motivation by homosexual desire was insufficient to create a triable question of fact.” Id. at 1070-1071 (citing Johnson v. Honda, Inc., 125 F.3d 408, 412 (7th Cir. 1997) (“expressions such as ‘kiss my a**’ and ‘suck my d***’ are commonplace in certain circles’” and reflect animosity or juvenile provocation.))
Family and Medical Leave Act
In Throneberry v. McGehee Desha County Hosp., 403 F.3d 972, 977 (8th Cir. 2005), a case of first impression in the circuit, the Eighth Circuit Court of Appeals outlined a causation defense for employers sued under the Family and Medical Leave Act (“FMLA”). Plaintiff, a home health nurse employed by Defendant, took an FMLA leave of absence after depression and anxiety started to affect her work performance. While on leave, she visited the workplace and disrupted other employees. When her supervisor came to view her behavior, she was in a short dress and tilted back in a chair with her legs apart and giggling. Plaintiff resigned at the employer’s request. After she resigned, the employer discovered that Plaintiff had charged Medicaid for services without proper documentation. Consequently, Medicaid required Defendant to reimburse it approximately $40,000.
Plaintiff sued the employer for interfering with her FMLA rights. She relied on 29 U.S.C. § 2615(a)(1), which states that it is “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under” the FMLA. The jury found that the employer proved it would have discharged Throneberry regardless of her exercise of FMLA rights. Accordingly, the trial court entered judgment for the employer.
On appeal, Throneberry argued that the FMLA imposed strict liability for all interferences with FMLA rights and that therefore, the trial court erred in allowing the jury to decide whether the employer had a lawful reason for interfering with her leave. The Eighth Circuit rejected her position in strong terms. The Court held that an employer who interferes with an employee’s FMLA rights is not liable if the employer can demonstrate it would have made the same decision had the employee not asserted her FMLA rights. Id. at 977. It grounded its decision on the FMLA’s provision that an employee on FMLA leave enjoys no greater rights than the employee would have had had she not taken the leave. Id. at 977, 988 (citing 29 U.S.C. § 2614(a)(1)).
To illustrate the logic in its holding, the Court noted that interpreting the statute to require strict liability would require an employer to retain an employee that harassed a co-worker while the employee was on FMLA leave. Similarly, an employer that went out of business during a worker’s FMLA leave would be unable to terminate the employee, even if the employer went out of business during the leave, a “preposterous” result. Id. at 980. The Court concluded its decision balanced “the legitimate interests of the employer with the FMLA’s leave-granting mandate.” Id. at n. 6.
Americans With Disabilities Act
In Strate v. Midwest Bankcentre, Inc., 398 F.3d 1011 (8th Cir. 2005), the Court reversed a summary judgment for the employer on a former employee’s claim that the employer discriminated against her based on her association with a disabled person in violation of the A.D.A., 42 U.S.C.§12101 et seq., after she gave birth to a child with Down’s Syndrome.
Plaintiff worked as an executive vice president for Defendant. Id. at 1013. In the fall of 2000, after 11 years with Defendant, she notified Defendant’s president that she was pregnant. Id. In response to her concerns about job security, he told Plaintiff that “she had been a good employee, that he had no reason to expect her job would not be there, and she should not be concerned.” Id. (citation omitted).
In April 2001, Plaintiff delivered her child. Id. On June 3, 2001 she notified the bank that she planned to return to work on July 2. Eight days later, Defendant notified her that it had eliminated her position as part of an organizational realignment. Id. at 1013-1014. When Plaintiff sued the bank for discrimination based on her association with a disabled person in violation of the A.D.A., the trial court awarded summary judgment to the bank. Id. at 1017-18. The trial court ruled the record did not create a material fact dispute regarding whether Defendant discharged Plaintiff as a result of her association with her disabled child or the impact of the child’s birth on her health benefits. Id. at 1017.
Pursuant to the McDonnell Douglas framework, the Court had to determine whether there was a genuine issue of material fact concerning the Defendant’s motivation for eliminating Plaintiff’s position. Id. at 1019. In examining Defendant’s motivation, the Court noted “close temporal proximity between an employer’s discovery of a protected characteristic and an adverse employment action may, on rare occasions, suffice to create an inference of discrimination. However, ‘[g]enerally, more than a temporal connection between the protected conduct and the adverse employment action is required to present a genuine factual issue.’” Id. at 1020 (citation omitted).
The Court found that only ten weeks had elapsed between the time Plaintiff gave birth to her disabled child on April 20, 2001 and the time she was notified that her job had been eliminated on July 2, 2001, and concluded that “there [was] more than mere temporal proximity” at play. Id. at 1019-1020. Although it stated that “evidence of a strong employment history will not alone create a genuine issue of fact regarding pretext and discrimination,” the Court concluded Plaintiff’s “apparently unblemished employment history with [Defendant], spanning more than a decade of work, casts genuine doubt upon [Defendant’s] stated reason for terminating her.” Id. at 1020-1021. The Court also noted that Plaintiff’s objective qualifications and the fact that she was deemed a “non-viable candidate” for a position upon her return from maternity leave was relevant to their analysis. Id.
The Court reiterated that “the applicable standard in [the Eighth Circuit] on summary judgment . . . ‘require[s] only that [the] plaintiff adduce enough admissible evidence to raise a genuine doubt as to the legitimacy of the defendant’s motive, even if that evidence [does] not directly contradict or disprove [the] defendant’s articulated reasons for its actions.’” Id. at 1021. (emphasis in original). Concluding that a reasonable fact finder could have concluded that Plaintiff’s association with her disabled child was a motivating factor in Defendant’s decision to terminate her, the Court reversed the district court’s grant of summary judgment. Id. at 1021.
Uniform Services Employment and Reemployment Rights Act
The Eighth Circuit addressed the Uniform Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301 et seq, for the first time in Maxfield v. Cintas Corp. No. 2, 427 F.3d 544 (2005). USERRA bars employment discrimination based on military status. In Maxfield, the Court held that an Army reservist raised a material fact dispute as to whether he was transferred and then discharged based on his military service. Id. at 554. When Plaintiff, a salesperson, took military leave, someone identifying himself as Plaintiff’s boss contacted the base to which Plaintiff had reported to ask if it was “‘imperative’” that he be on leave. Subsequently, Plaintiff’s manager came to the base in part to discuss Plaintiff’s commission deficit. On the day Plaintiff returned from leave, he was transferred from his commission-earning position to one without direct opportunity to earn commission. Id. at 547.
The following year, Plaintiff took a 6 month military leave. Two months after his return, Plaintiff received orders to report to the base for 3 days. Again, a representative of Plaintiff’s employer called the base and verified Plaintiff had reported. Id. at 548. Defendant suspended Plaintiff the day he returned and terminated him several days later for using paid sick and vacation leave instead of military leave for this period. Defendant’s policy permitted use of sick and vacation leave for military leave. Id. at 549.
The Eighth Circuit reversed the summary judgment awarded to the employer on the USERRA claim. It noted that Plaintiff was only required to show that his service status was a motivating factor in the employer’s decisions to demonstrate unlawful discrimination under 38 U.S.C. § 4311(c)(1). Id. at 553. Moreover, USERRA shifted the burden of persuasion and production to the employer, once Plaintiff made this showing. Id. at 551. (emphasis added) The Court held the phone calls and visit to the base, the proximity of the transfer and termination to Plaintiff’s service, and the fact that the company sanctioned use of paid leave for military leave raised a material fact question on the USERRA claim. Id. at 552-54. The employer argued that the termination was based on Maxfield’s poor commission record. However, the Court held the explanation insufficient, because Plaintiff’s burden was simply to show that his military status was a factor in the employer’s actions. Id. at 552-53.
