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Barker v. Missouri Dept. of Corrections: EMPLOYMENT - no prima facie retaliaton v. shop steward

1The Honorable A. Wallace Tashima, United States Circuit Judge for the Ninth
Circuit, sitting by designation.
2The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri.
United States Court of Appeals
No. 07-1422
John F. Barker, *
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Missouri Department of Corrections, *
Appellee. *
Submitted: November 15, 2007
Filed: January 24, 2008
Before RILEY, TASHIMA,1 and SMITH, Circuit Judges.
SMITH, Circuit Judge.
John F. Barker sued the Missouri Department of Corrections (MDOC) alleging
that it violated Title VII of the Civil Rights Act of 1964 by retaliating against him for
aiding a co-worker to report sexual harassment. The district court2 granted summary
judgment for the MDOC, holding that Barker did not engage in a protected activity.
We affirm.
I. Background
The following facts are stated in the light most favorable to John Barker, the
non-moving party. Barker, a correctional officer at the Potosi Correctional Center, was
appointed shop steward in 2002. As shop steward, it was Barker's job to assist fellow
employees with filing grievances. During 2003, Barker worked as an officer in the
special needs unit (SNU), which houses inmates with mental diseases and disabilities.
On June 23, 2003, Shannon Gifford, the SNU manager, entered the control
room in the SNU and asked Officer William Bjork, who was new to the SNU, if he
was enjoying his new placement. Bjork responded that he did not like working in the
SNU because the inmates behaved poorly and were different than other inmates he
had worked with. Bjork also stated that he had no SNU training. Gifford then told
Bjork, in a "commanding voice," that he could not reenter the SNU without receiving
training. A female SNU officer, upon hearing Gifford's statement, stated that she had
worked in the SNU for a year but had not received SNU training. Gifford
responded,"you don't need the training, women are better by and large as they do a
better job than men do anyway and are more patient and nurturing than men and we
have no complaints about them." Despite Gifford's comments, Bjork remained
assigned to the SNU until mid-October 2003.
The next day, Barker helped Bjork draft an incident memorandum describing
Gifford's comments to the appropriate supervisory authority. Three days later, on June
27, 2003, Bjork filed an employee grievance, drafted by Barker, based on Gifford's
comments alleging sexual harassment.
On July 1, 2003, an inmate accused Barker and another officer of using excess
force. The inmate complained to the SNU officer whose shift followed Barker's, that
Barker and the other officer forced him into his cell and slammed his leg in the door.
The inmate told the officer that he had lost his shoe in the struggle, and the officer saw
the inmate's shoe outside his cell. The SNU officer also observed bruises on the
inmate's shoulders and right thigh. Two other inmates corroborated the injured
inmate's story. Barker disputed the inmate's story and noted discrepancies in the age
of the inmate's bruises.
According to MDOC policy, "the superintendent/designee shall be immediately
notified of any use of force." MDOC policy requires that use of force reports be filled
out and submitted to a supervisor prior to leaving duty. Barker had not filed a use of
force report before leaving work, and MDOC has a nondiscretionary policy that
requires it to investigate any claim of an unreported use of force. MDOC investigated
this incident during July 2003, and the investigator determined that Barker had not
reported the use of force but made no determination whether the force used had been
MDOC policy also requires an annual performance review for each correctional
officer. Barker received a rating of unsatisfactory on his 2003 performance review, the
lowest possible rating. Barker's review noted that he had thirteen unscheduled
absences, he had locked himself out of a major prison entrance, and he had failed to
report use of force. As a result of this rating, Barker had to participate in a special
employee appraisal. Barker was also found to have attempted to mislead investigators
and solicit false testimony. Barker received a five-day suspension for his failure to
report use of force.
About two years later, Barker filed the current action alleging that the MDOC
violated Title VII of the Civil Rights Act of 1964 by retaliating against him for
reporting the alleged sexual harassment of Bjork. On December 19, 2006, the district
court granted summary judgment for the MDOC, concluding that no reasonable
person would objectively believe that Gifford's comment to Bjork violated Title VII.
The court also concluded that no reasonable jury could find that MDOC's proffered
reason for suspending Barker was pretextual.
3Barker claims, for the first time on appeal, that his conduct falls within the
participation clause of Title VII as well. Barker has thus waived that argument. See
Int'l Bhd. of Elec. Workers, Local Union No. 545 v. Hope Elec. Corp., 380 F.3d 1084,
1096 (8th Cir. 2004).
II. Discussion
On appeal, Barker argues that the district court erred in granting summary
judgment because his assistance in filing Bjork's grievance constituted a protected
activity under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq.
We review the grant of summary judgment de novo. Cherry v. Ritenour Sch. Dist.,
361 F.3d 474, 478 (8th Cir. 2004). We view the evidence in the light most favorable
to the nonmoving party, and summary judgment is appropriate if the evidence
demonstrates that no genuine issue of material fact exists and the moving party is
entitled to judgment as a matter of law. Id.
Title VII prohibits an employer from discriminating against an employee who
"has opposed any practice made an unlawful employment practice by this subchapter"
or who "has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a).
"The two clauses of this section typically are described, respectively, as the opposition
clause and the participation clause." Gilooly v. Mo. Dep't of Health & Senior Servs.,
421 F.3d 734, 741 (8th Cir. 2005) (Colloton, J., concurring). Barker claims protection
of the opposition clause, which shields an employee against discrimination because
he has opposed a practice made unlawful by Title VII. Id. at 742. We interpret this
provision to encompass actions that oppose employment actions that are not unlawful,
"as long as the employee acted in a good faith, objectively reasonable belief that the
practices were unlawful." Id.3
Because Barker has no direct evidence of retaliation, his claim is analyzed
under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this
framework, the plaintiff has the initial burden of establishing a prima facie case of
retaliation. Clark v. Johanns, 460 F.3d 1064, 1067 (8th Cir. 2006). Once the plaintiff
satisfies this burden, defendant must offer a legitimate, non-discriminatory reason for
the employment action. Id. The burden of production then returns to the plaintiff to
show that the employer's reason was a pretext for discrimination. Id.
To establish a prima facie case of retaliation, Barker must present evidence that
(1) he engaged in a protected activity; (2) an adverse employment action was taken
against him; and (3) a causal connection exists between the two. Thompson v. Bi-State
Dev. Agency, 463 F.3d 821, 826 (8th Cir. 2006). "[S]exual harassment is actionable
under Title VII only if it is so severe or pervasive as to alter the conditions of [the
victim's] employment and create an abusive working environment. Clark County Sch.
Dist. v. Breeden, 532 U.S. 268, 270 (2001) (internal citations and quotations omitted).
"[W]hether an environment is sufficiently hostile or abusive must be judged by
looking at all the circumstances" including the frequency, physicality and severity of
the conduct. Id. at 270–71. Conduct is not actionable under Title VII if no reasonable
person could have believed the incident violated Title VII's standard. Id at 271.
Barker argues that when helping Bjork to file a grievance, he was engaged in
protected activity because he reasonably believed Gifford's comments constituted
unlawful sexual harassment. He also claims that he engaged in a protected activity
when he assisted Bjork with drafting the memorandum reporting Gifford's remark. In
order for Barker's assistance to be protected, Barker must demonstrate that he had an
objectively reasonable belief that Gifford's remark to Bjork constituted sexual
harassment under Title VII. We conclude that Gifford's single, isolated statement,
implying that women are more nurturing and better suited for work in the SNU, is
insufficient as a matter of law to support an objectively reasonable belief that the
statement constituted sexual harassment.
Gifford's isolated remark falls far short of being actionable. See LeGrand v.
Area Res. for Cmty. & Human Servs., 394 F.3d 1098, 1101–02 (8th Cir. 2005)
4Because Barker cannot make out a prima facie case, we do not reach Barker's
pretext arguments. Similarly, the MDOC filed a motion to strike portions of Barker's
brief related to use of an affidavit by Barker in his pretext analysis. Again, because we
have resolved the case at the prima facie stage, we need not address the MDOC's
motion to strike.
(finding that "to be actionable, conduct must be extreme and not merely rude or
unpleasant"; and stating harassment did not create a hostile work environment when
priest/board member made unwelcome sexually explicit advances on three separate
occasions); Duncan v. Gen. Motors Corp., 300 F.3d 928, 933–34 (8th Cir. 2002)
(finding five harassing incidents—including a relationship proposition, improper
touching, a request that plaintiff draw a sexually objectionable picture and posting of
offensive posters—did not meet the standard necessary to be actionable).
We agree with the district court that no reasonable person could objectively
believe that Gifford's comments violated Title VII. Barker cannot make out a prima
facie case, therefore, we affirm the district court's grant of summary judgment.4
III. Conclusion
Accordingly, we affirm the judgment of the district court.


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