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EMPLOYMENT - defense to harassment claims; partial dissent regarding notice

1The Honorable Stephen N. Limbaugh, United States District Judge for the
Eastern District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-1970
___________
Julie Weger; Mary Meghan Murphy, *
*
Plaintiffs - Appellants, **
Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
City of Ladue; William Baldwin; *
Donald Wickenhauser, *
*
Defendants - Appellees. *
___________
Submitted: January 11, 2007
Filed: September 13, 2007
___________
Before LOKEN, Chief Judge, BYE, and SHEPHERD, Circuit Judges.
___________
SHEPHERD, Circuit Judge.
Julie Weger and Mary Meghan Murphy (collectively Plaintiffs) appeal the
district courts1 grant of summary judgment to their employer, the City of Ladue, on
their claims of sexual harassment and retaliation under Title VII of the Civil Rights
2In the district court, Plaintiffs also asserted that Captain William Baldwin and
Chief of Police Donald Wickenhauser sexually harassed and retaliated against them
under 42 U.S.C. 1983 in violation of the Fourteenth Amendment. The district court
granted summary judgment on these claims, and Plaintiffs do not challenge this ruling.
-2-
Act of 1964 (Title VII), 42 U.S.C. 2000e to 2000e-17, and the Missouri Human
Rights Act (MHRA), Mo. Rev. Stat. 213.010-.137.2 We affirm.
I.
We present the facts in a light most favorable to the nonmoving parties, the
Plaintiffs. See E.E.O.C. v. Wal-Mart Stores, Inc., 477 F.3d 561, 563 (8th Cir. 2007).
Plaintiffs were hired by the City of Ladue Police Department (Department)
as communications officers in 1999 and have been continuously employed by the
Department since that time. During Wegers application process, Captain William
Baldwin, then a lieutenant, learned that Weger had undergone breast reduction surgery
and informed Sergeant John Wagner, then a detective. Wagner communicated this
fact to Lieutenant Chris Baker, then a detective. In addition, during Murphys
application process, Baldwin commented to Wagner and Baker something to the effect
that, though Murphy was not attractive, she had large breasts. Following their hire,
Wagner informed the Plaintiffs of Baldwins remarks. Eventually, the fact of Wegers
prior surgical procedure became well known throughout the Department, resulting in
Weger being subjected to teasing by her coworkers.
Plaintiffs work in the communications department, which consists of six
dispatchers and one civilian supervisor. In 2000, Baldwin became the uniformed
supervisor for the communications department. Baldwin also served as the
Departments internal affairs investigator and second in command to Chief of Police
Donald Wickenhauser, Baldwins longtime friend. While serving as Plaintiffs
supervisor, Baldwin worked weekdays from 7 a.m. to 4 p.m., and Plaintiffs worked
3Baldwins harassing behavior toward the Plaintiffs included: (1) chasing them,
tickling them, and blocking doorways so that they were unable to get around him; (2)
massaging their shoulders, neck, and upper chest area underneath their uniforms; (3)
attempting to hold their hands; (4) grabbing their waists; (5) running his fingers
through their hair; (6) hugging them and pressing his body against their bodies; and
(7) going under their desks in order to massage their legs. In addition, Baldwin made
inappropriate sexual comments to Plaintiffs, including references to Murphys breasts
and legs and repeated inquiries into her sexual relations as well as remarks about the
physical appearance of other women.
-3-
rotating schedules such that they worked roughly the same hours as Baldwin only one
month every six months. However, Plaintiffs often encountered Baldwin as they were
coming on to their shifts and he was leaving and vice versa. From the commencement
of Baldwins assignment as Plaintiffs supervisor, Baldwin sexually harassed the
Plaintiffs, even though they continually expressed to Baldwin that they considered his
conduct to be unwelcome and inappropriate.3 As of the fall of 2001, Baldwin engaged
in daily harassment of the Plaintiffs.
In the winter of 2001, Detective Norman witnessed an incident where Baldwin
put his arm around Murphys shoulder and leaned in close to her face, and Murphy
stood up and stated, I cant stand him. At an unspecified time, Officer Bonney saw
Baldwin come up behind Murphy, who was standing in the communications area, and
place his hands on her hips in an attempt to tickle her, Murphy became angry and told
Baldwin to stop, Baldwin let go but followed Murphy with outstretched hands as if
he was going to tickle her again, and Murphy told Baldwin to leave her alone. Also,
at an unspecified time, Detective Lucas saw Baldwin moving his hands on Wegers
shoulders and then saw Weger roll her eyes. Finally, in September 2002, Officer
Bonney and Sgt. Wagner saw Murphy walking down the hallway with Baldwin
behind her, he was rubbing her shoulders, she grimaced and turned away from
Baldwin in an effort to break his grip on her shoulders, and, in response, Wagner
shook his head and said I cant believe that.
-4-
At the inception of Plaintiffs employment with the Department, they received
and reviewed a copy of its antiharassment policy. This policy specifically prohibits
sexual harassment and outlines a complaint procedure for employees who believe they
are being harassed or those that witness harassment of other employees. The policy
requires supervisors to: (1) monitor the Departments work environment for any signs
of harassment on a daily basis; (2) advise employees about the types of behavior
prohibited and complaint procedures; (3) stop all observed acts of harassment
regardless of whether the employees involved are under his or her supervision; and
(4) take immediate action to limit the work contact between employees involved in a
complaint of harassment pending investigation. Moreover, all Department employees
are required to report observed acts of harassment to a supervisor and failure to do so
is grounds for discipline. The policy also provides a comprehensive complaint
procedure with multiple avenues to report harassment, including any supervisor, the
Chief of Police, and the Mayor of Ladue. Upon receipt of a harassment complaint, the
policys procedure provides that the Department will immediately limit work contact
between the alleged harasser and the complainant, and the Chief of Police is
responsible for the investigation of the complaint. Finally, the policy prohibits
retaliation against complainants and those participating in complaint investigations.
On November 5, 2002, Murphy encountered Baldwin in the kitchenette area
adjacent to the communications area. Murphy had been out from work the day before
because she had two teeth extracted, and she and Baldwin were discussing that
procedure. Murphy described what happened next:
[A]s I was standing there conversing with him, [Baldwin] approached
me with his hands very close . . . attempting to cup my face and asked if
. . . it hurt. He actually brushed my face. I did [not] know if he was
going to kiss me or hug me or what. It made me feel very
uncomfortable. At that point in time, I had had it.
-5-
Murphy then went immediately upstairs to Lt. Bakers office and reported the incident
as well as previous instances of Baldwins harassment. This was the first time that
Murphy informed any Department supervisor that she was being sexually harassed by
Baldwin. Baldwins harassment of the Plaintiffs ended that day.
Baker reported Murphys complaint to Chief Wickenhauser the following day,
November 6th. Wickenhauser interviewed Murphy that day, and, along with
describing the incident that had given rise to her complaint, she discussed Baldwins
prior harassment. After the interview, Wickenhauser contacted Baldwin and
instructed him not to enter the communications area or have contact with any
communications personnel until further notice. Wickenhauser then began an
investigation of Murphys complaint.
Wickenhausers investigation consisted of interviewing Baldwin, Wagner, and
Baker as well as Lieutenant Richard Wooten, Detective Chris Schmitz, Det. Norman,
and Officer Richard Bonney. Wickenhauser informed some of the interviewees that
they should consider retaining an attorney because Baldwin could sue them for
slander. Several of the interviewees reported having witnessed Baldwin acting
inappropriately toward four female employees: Murphy, Weger, Kristin Goin, a
communications officer, and Pat Allison, who had served as the civilian supervisor for
the communications department since 2001. In addition, Wagner, Schmitz, and
Norman reported hearing other unnamed employees refer to Baldwin as Captain
Tickles and Tickle Me Elmo, which they believed grew out of his propensity for
tickling females employees. Wickenhauser, Baker, and Wooten stated that they were
not aware of Baldwins nicknames.
Wickenhauser also interviewed all communications personnel. Allison and
Goin denied that Baldwin had harassed them; however, Weger substantiated Murphys
claims, informing Wickenhauser that Baldwin tried to hug her and had touched or
rubbed her shoulders, neck, and arms on many occasions. Weger joined Murphy in
-6-
her complaint. With regard to Baldwins nicknames, Allison and Weger were not
aware of them. However, Murphy had heard Department employees refer to Baldwin
as Captain Tickles and Tickle Me Elmo intermittently.
About two weeks later, on November 19th, Wickenhauser completed his
investigation, finding that Baldwin had not unlawfully sexually harassed Murphy or
Weger. Rather, Wickenhauser determined that Baldwin touched the shoulders and
arms of both male and female employees in a nonsexual manner when engaging in
conversation with them, and that, though the touching was meant to be nonsexual,
Murphy and Weger found it offensive. Although Wickenhauser refused to provide
Plaintiffs with the results of his investigation, he shared this information with
Baldwin, including the names and statements of the witnesses. Additionally,
Wickenhauser issued a memorandum to Baldwin providing that: (1) though Baldwin
had not engaged in unlawful harassment, the aforementioned touching offended some
individuals; (2) the touching violated the Departments antiharassment policy; (3)
Baldwin should, in the future, refrain from touching any Department employee; and
(4) any future substantiated accounts of Baldwins violation of the policy or retaliation
against Plaintiffs or anyone involved in the investigation would result in his
termination. Additionally, Baldwin was permanently removed as Plaintiffs
supervisor but remained their superior within the Department as he remained head of
internal affairs and continued to serve as acting chief when necessary.
On November 21st, two days after the investigation ended, Wickenhauser
issued directives to the entire Department, which he characterized as safeguards, as
a result of his investigation. These directives provided that: (1) not more than two
detectives could eat lunch together; (2) when leaving the Department, detectives must
call out their locations on the radio; (3) officers were no longer allowed to enter the
communications area for any reason other than a business purpose; (4) a number of
items that were normally located in the main work space of the communications area
were moved to the kitchenette area in the rear, so officers could access those items
-7-
from the back, decreasing traffic through the main work area; and (5) the
communications officers were no longer allowed to take breaks in the detective
bureau. Plaintiffs felt that the directives were in retaliation for their harassment
complaint and were meant to isolate them by making it difficult for them to interact
with their coworkers for both social and work-related purposes.
Plaintiffs also felt ostracized by officers, who acted indifferent towards them,
and Chief Wickenhauser, who ignored them. Moreover, Baldwins continued
presence in the communications area, though for work-related reasons, made the
Plaintiffs feel uncomfortable because they believed that Baldwin did this in order to
indicate his superior position. In addition, Allison began taking more detailed notes
of Plaintiffs work activities. Although Allisons notes with regard to Murphys
activities amounted to only a page and a half in the seventeen months prior to her
complaint, Allison took seven pages of notes relating to Murphys activities in the
twelve months following her complaint. On the whole, Allisons notes concerning
Plaintiffs postcomplaint work activities record both positive and negative events as
well as Plaintiffs sick days and requests for leave.
In 2003, the Department, for the first time since Plaintiffs were hired,
reinstituted a policy requiring annual written evaluations for all communications
officers. On March 5, 2003, about four months after Plaintiffs complaint, Weger
underwent her first performance review, receiving the highest possible marks in all
but two categories, quality of work and personal relations, for which she earned above
standard and standard marks, respectively. It appears that Murphy did not undergo
her first performance review until March 5, 2004, about sixteen months after
Plaintiffs complaint. Murphy received above standard ratings in all but two
categories, reporting habits and personal contacts, for which she received standard and
needs improvement ratings, respectively.
4Because Plaintiffs hostile work environment sexual harassment claims
pursuant to Title VII, the MHRA, and section 1983 claims are subject to the same
analysis, see LeGrand v. Area Res. for Cmty. & Human Servs., 394 F.3d 1098, 1101
(8th Cir.), cert. denied, 126 S. Ct. 335 (2005) (Title VII and MHRA claims analyzed
under same standards); Wright v. Rolette County, 417 F.3d 879, 884 (8th Cir.), cert.
denied, 126 S. Ct. 1338 (2006) (Title VII and section 1983 claims analyzed under
same standards), the district courts finding resulted in the dismissal of all of the
Plaintiffs hostile work environment claims.
-8-
Plaintiffs brought their charges of sexual harassment and retaliation to the Equal
Employment Opportunity Commission (EEOC). The EEOC found sufficient
evidence to support Plaintiffs sexual harassment claim, but not their retaliation claim,
and directed the parties to begin settlement negotiations. The matter was not resolved,
and, after exhausting their administrative remedies, Plaintiffs filed a twelve count
complaint against the City of Ladue, Capt. Baldwin, and Chief Wickenhauser on June
2, 2004, alleging hostile work environment sexual harassment and retaliation under
Title VII, the MHRA, and 42 U.S.C. 1983 in violation of the Fourteenth
Amendment. By an order dated December 30, 2004, the district court dismissed
Plaintiffs MHRA claims against Baldwin and Wickenhauser, in their individual
capacities, finding Plaintiffs had failed to state a claim against them as a matter of law.
On June 1, 2005, the Defendants moved for summary judgment on the
Plaintiffs remaining claims. The district court granted the motion and dismissed all
of the Plaintiffs claims, finding that: (1) the hostile work environment sexual
harassment claims failed because, assuming Plaintiffs demonstrated a prima facie
case, the Defendants established the affirmative defense announced by the Supreme
Court in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v.
City of Boca Raton, 524 U.S. 775 (1998) (Ellerth-Faragher affirmative defense) as
a matter of law,4 and (2) the retaliation claims failed because Plaintiffs could not make
5As previously noted, Title VII and the MHRA are subject to the same analysis.
See LeGrand, 394 F.3d at 1101. Thus, the district court dismissed all of Plaintiffs
retaliation claims for this reason. The district court also dismissed the Plaintiffs
section 1983 claims, finding that they had failed to state a cause of action under the
Equal Protection Clause of the Fourteenth Amendment.
-9-
out a prima facie case where there had not shown that they underwent an adverse
employment action.5
Plaintiffs appeal only the grant of summary judgment to the City of Ladue,
contending that genuine issues of fact preclude the application of the Ellerth-Faragher
affirmative defense and that they have demonstrated a prima facie case of retaliation.
II.
We review de novo the district courts grant of summary judgment to the City
of Ladue, viewing the evidence and drawing all reasonable inferences in the light most
favorable to the Plaintiffs, and will affirm the judgment if there is no genuine issue of
material fact and the City is entitled to judgment as a matter of law. See Carrington
v. City of Des Moines, Iowa, 481 F.3d 1046, 1050 (8th Cir. 2007).
Title VII prohibits employers from discriminat[ing] against any individual
with respect to [her] compensation, terms, conditions, or privileges of employment,
because of such individuals . . . sex . . . . 42 U.S.C. 2000e-2(a)(1).
Discrimination based on sex that creates a hostile or abusive working environment
violates Title VII. Nitsche v. CEO of Osage Valley Elec. Coop., 446 F.3d 841, 845
(8th Cir. 2006) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). In order
to make a prima facie showing of hostile work environment based on supervisor
sexual harassment, Plaintiffs must show that: (1) they belong to a protected group; (2)
they were subject to Baldwins unwelcome harassment; (3) a causal nexus exists
-10-
between the harassment and their protected group status; and (4) Baldwins
harassment affected a term, condition, or privilege of their employment. Gordon v.
Shafer Contracting Co., Inc., 469 F.3d 1191, 1194-95 (8th Cir. 2006). For purposes
of the summary judgment motion, the district court found that Plaintiffs had met the
first three elements and assumed the final element such that Plaintiffs demonstrated
a prima facie case of hostile work environment sexual harassment. However, the
district court granted summary judgment to the City of Ladue based on the Ellerth-
Faragher affirmative defense. Thus, we consider only whether the City proved the
affirmative defense as a matter of law.
A.
Because the hostile work environment sexual harassment that Plaintiffs were
subjected to in this case was perpetrated by a supervisor, the City is vicariously liable
for the harassment unless it demonstrates its entitlement to the Ellerth-Faragher
affirmative defense, which is potentially applicable in situations where, as here, no
tangible employment action is alleged. See Williams v. Mo. Dept. of Mental Health,
407 F.3d 972, 975-76 (8th Cir.), cert. denied, 126 S. Ct. 1037 (2006) (citing Ellerth,
524 U.S. at 765; Faragher, 524 U.S. at 807-08). The Ellerth-Faragher affirmative
defense consists of two necessary elements: (a) that the employer exercised
reasonable care to prevent and correct promptly any sexually harassing behavior[] and
(b) that the plaintiff employee unreasonably failed to take advantage of any
preventative or corrective opportunities provided by the employer or to avoid harm
otherwise. Id. at 976 (quoting Faragher, 524 U.S. at 807).
Despite Plaintiffs admission that they were aware of the Departments
antiharassment policy throughout the period of Baldwins harassment and that the
harassment came to an end on the day Murphy filed her complaint, Plaintiffs contend
that genuine issues of material fact exist as to whether the Department satisfied the
Ellerth-Faragher affirmative defense because: (1) the Departments antiharassment
-11-
policy was ineffective; (2) the Department had both actual and constructive notice of
the harassment before Murphys complaint due to a supervisor and employees
observing instances of harassment over the preceding two years; (3) the Departments
corrective actions were harsh and skewed in favor of Baldwin; and (4) the Plaintiffs
did not unreasonably delay in invoking the Departments complaint procedure because
they possessed credible fears of retaliation and believed that Chief Wickenhauser
would not conduct a fair investigation of the matter because of his close relationship
with Baldwin. We address each of Plaintiffs claims in turn.
1.
The first element of the affirmative defense imposes two requirements on
employers, they must have (1) exercised reasonable care to prevent sexual harassment
(the prevention prong) and (2) promptly corrected any sexual harassment that did
occur (the correction prong). Faragher, 524 U.S. at 807; see Phillips v. Taco Bell
Corp., 156 F.3d 884, 889 (8th Cir. 1998) (examining both an employers prevention
efforts and response to a harassment complaint in determining whether the employer
satisfied the first element of the defense); see also Cerros v. Steel Techs., Inc., 398
F.3d 944, 953 (7th Cir. 2005) (The mere existence of [an antiharassment] policy . .
. does not necessarily establish that the employer acted reasonably in remedying the
harassment after it has occurred . . . .); Frederick v. Sprint/United Mgmt. Co., 246
F.3d 1305, 1314 (11th Cir. 2001) (The first element of the . . . affirmative defense
requires that an employer demonstrate that it took reasonable care both to prevent and
correct harassment.); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 188 (4th Cir.
2001) (Under these circumstances, a jury could rationally conclude that, although
[the employers] institution of an [antiharassment] policy represented a reasonable
step toward preventing the type of abuse suffered by [the employee], the company
unreasonably failed to correct [the harassers] offending behavior . . . .); Shaw v.
Autozone, Inc., 180 F.3d 806, 812 (7th Cir. 1999) (The first prong of the . . . defense
-12-
also requires [an employer] to prove that it exercised reasonable care to respond to the
sexual harassment.).
The prevention prong is meant to further Title VIIs deterrent purpose, see
Ellerth, 524 U.S. at 764, by recogniz[ing] the employers affirmative obligation to
prevent violations and giv[ing] credit . . . to employers who make reasonable efforts
to discharge their duty. Faragher, 524 U.S. at 806; see Ellerth, 524 U.S. at 764
(Title VII is designed to encourage the creation of antiharassment policies and
effective grievance procedures.). Though the Departments distribution of a valid
antiharassment policy provides compelling proof that [it] exercised reasonable care
in preventing and promptly correcting sexual harassment, see Barrett v. Applied
Radiant Energy Corp., 240 F.3d 262, 266 (4th Cir. 2001), it is not dispositive.
We have found a sexual harassment policy insufficient because it did not
require supervisors, who are notified of an employee being sexually harassed, to
report that information to those in a position to take corrective action. See Varner v.
Natl Super Mkts., Inc., 94 F.3d 1209, 1213-14 (8th Cir.), cert. denied, 519 U.S. 1110
(1997). However, we have held that an employer exercised reasonable care to prevent
harassment where it distributed its antiharassment policy to all of its employees, and
the policys complaint procedure identifie[d] three company officials to whom
harassment [could be] reported. Gordon, 469 F.3d at 1195; see Williams, 407 F.3d
at 976-77 (finding that an employers antiharassment policy, with a nonretaliation
provision and a flexible reporting procedure, satisfies the employers duty under the
prevention prong).
Plaintiffs contend that the Department did not satisfy the prevention prong
because its antiharassment policy was ineffective in the following ways: (1) Plaintiffs
coworkers and supervisors did not report observed acts of Baldwins harassment of
Plaintiffs; (2) the Department did not offer training or counseling with regard to
sexual harassment; and (3) the Department made no attempt to monitor Baldwins
-13-
behavior. However, Plaintiffs have offered no authority from this court that these
failures render the Departments harassment prevention efforts unreasonable.
Moreover, the policy at issue is distinguishable from Varner and analogous to Gordon
and Williams because the Departments policy, which was provided to all employees,
identifies multiple officials to whom harassment may be reported and contains an
antiretaliation provision. Furthermore, Plaintiffs have not alleged that their delay in
invoking the Departments complaint procedure was, in any way, a result of the
policys deficiencies. On the contrary, Plaintiffs chose not to invoke the Departments
complaint procedure for at least a year due to their fears of retaliation and that they
would not receive a fair investigation, which goes to the second element of the Ellerth-
Faragher affirmative defense.
In sum, we find that the Department acted reasonably to prevent harassment as
a matter of law because it had a facially valid antiharassment policy that, when
invoked by Plaintiffs, brought an immediate end to Baldwins harassment. Thus, the
City of Ladue has satisfied the prevention prong of the first element of the Ellerth-
Faragher affirmative defense as a matter of law.
2.
Plaintiffs also contend that the Department has not satisfied the correction
prong as a matter of law because: (1) it had both actual and constructive notice of
Baldwins harassment via its employees observation of the harassment prior to
Murphys complaint; (2) its investigation of Plaintiffs complaint was flawed; and (3)
its remedial action was harsh and skewed in favor of Baldwin.
The correction prong requires the Department to demonstrate that it exercised
reasonable care . . . to correct promptly any sexually harassing behavior. Faragher,
524 U.S. at 807. Therefore, in applying the correction prong, the employers notice
of the harassment is of paramount importance . . . . Madray v. Publix Supermarkets,
-14-
Inc., 208 F.3d 1290, 1299 (11th Cir. 2000) (quoting Dees v. Johnson Controls World
Servs., 168 F.3d 417, 422 (11th Cir. 1999)); see Stuart v. General Motors Corp., 217
F.3d 621, 633 (8th Cir. 2000) (Factors the [c]ourt may consider when assessing the
reasonableness of [an employers] remedial measures include the amount of time
elapsed between the notice of harassment, which includes but is not limited to a
complaint of sexual harassment, and the remedial action . . . .); see also Swenson v.
Potter, 271 F.3d 1184, 1192 (9th Cir. 2001) (Notice of the sexually harassing conduct
triggers an employers duty to take prompt corrective action that is reasonably
calculated to end the harassment.) (internal quotation marks omitted). Therefore, we
must determine when the Department had notice of Baldwins harassing behavior in
order to evaluate the promptness of its response.
Plaintiffs assert that the Department had actual notice of Baldwins harassment
prior to November 5, 2002, because at least one supervisor, who was designated to
receive harassment complaints under the Departments policy, observed the
harassment. Plaintiffs further contend that, because the policy required employees
who observed harassment to report it, their coworkers observation of Baldwins
harassment also constituted actual notice to the Department prior to Murphys
complaint. However, where an employer has a complaint procedure delineating the
individuals to whom notice of harassment must be given, employee observations are
not relevant to the actual notice inquiry. See Watson v. Blue Circle, Inc., 324 F.3d
1252, 1259 (11th Cir. 2003) (When an employer has a clear and published policy that
outlines the procedures an employee must follow to report suspected harassment and
the complaining employee follows those procedures, actual notice is established.
Constructive notice, on the other hand, is established when the harassment was so
severe and pervasive that management reasonably should have known of it.) (citation
omitted); Minix v. Jeld-Wen, Inc., No. 06-16094, 2007 WL 1828259, at *2 (11th Cir.
June 27, 2007) (per curiam) (unpublished) (finding dispositive the fact that the
employee did not report harassment to an individual designated to receive such
6This assumes without deciding that the constructive knowledge doctrine is
relevant in evaluating the promptness of an employers correction efforts pursuant to
the first element of the Ellerth-Faragher affirmative defense. See Griffin v.
Pinkertons Inc., 173 F.3d 661, 665 (8th Cir. 1999) (acknowledging that an employer
may be charged with constructive knowledge of a racially hostile environment);
Smith v. St. Louis Univ., 109 F.3d 1261, 1265 n.3 (8th Cir. 1997) (noting that a victim
of harassment may be able to demonstrate that the [employer] had constructive notice
. . . before [the victims] initial complaint provided actual notice); see also Kunin v.
Sears Roebuck & Co., 175 F.3d 289, 294 (3d Cir. 1999) (recognizing that the potential
-15-
complaints by the employers antiharassment policy so that the employer did not have
actual notice of the harassment).
Rather, because the Department has a published policy that provides a
procedure for reporting suspected harassment, Plaintiffs must have invoked this
procedure in order to establish actual notice. See Watson, 324 F.3d at 1259; see also
Minix, 2007 WL 1828259, at *2 ([O]nce an [antiharassment] policy has been
effectively disseminated to an employers employees it is incumbent upon the
employees to utilize the procedural mechanisms established by the company
specifically to address the problems and grievances.) (quoting Madray, 208 F.3d at
1298-99). Prior to Murphys complaint to Lt. Baker on November 5, 2002, which
provided actual notice to the Department, Murphy admits that she failed to inform any
Department supervisor or any other individual designated by the policy that she was
being sexually harassed by Baldwin. Because the record is devoid of any indication
that Plaintiffs invoked the Departments harassment complaint procedure prior to
Murphys complaint, the Department did not have actual notice of Baldwins
harassment until November 5, 2002.
Plaintiffs also assert that the Departments correction of Baldwins harassment
was not reasonably prompt because the Department had constructive notice of such
harassment prior to Murphys complaint via supervisor and coworker observation of
Baldwins inappropriate conduct.6 An employee can show an employers constructive
for constructive notice in the context of sexual harassment claims strike[s] the correct
balance between protecting the rights of the employee and the employer by faulting
the employer for turning a blind eye to overt signs of harassment but not requiring it
to attain a level of omniscience, in the absence of actual notice, about all misconduct
that may occur in the workplace). But see Farley v. Am. Cast Iron Pipe Co., 115
F.3d 1548, 1554 (11th Cir. 1997) ([A]n employer is insulated from liability under
Title VII for a hostile work environment sexual harassment claim premised on
constructive knowledge of the harassment when the employer has adopted an antidiscrimination
policy that is comprehensive, well-known to employees, vigorously
enforced, and provides alternate means of redress.); Minix v. Jeld-Wen, Inc., No. 06-
16094, 2007 WL 1828259, at *3-4 (11th Cir. June 27, 2007) (per curiam)
(unpublished) (applying the Farley rule).
-16-
knowledge of sexual harassment by demonstrating that the harassment was so severe
and pervasive that management reasonably should have known of it. Watson, 324
F.3d at 1259; see Smith v. St. Louis Univ., 109 F.3d 1261, 1265 n.3 (8th Cir. 1997)
(recognizing that constructive notice of harassment exists where the harassment was
obvious to everyone); see also Taylor v. Jones, 653 F.2d 1193, 1199 (8th Cir. 1981)
(affirming the district courts finding that the atmosphere of racial discrimination and
of prejudice was so pervasive and so long continuing . . . that the employer must have
become conscious of it).
The district court considered the following six instances in determining whether
constructive notice, prior to Murphys complaint, should be imputed to the
Department: (1) Baldwins comment to Sgt. Wagner with regard to Wegers breast
reduction surgery in February 1999; (2) Baldwins remark to Sgt. Wagner and Lt.
Baker with regard to Murphys appearance in October 1999; (3) the incident
witnessed by Det. Norman in the winter of 2001, which ended with Murphy stating
that she could not stand Baldwin; (4) Officer Bonneys observation of Baldwin
touching Murphy and attempting to tickle her after she told him to stop where Murphy
eventually told Baldwin to leave her alone; (5) Det. Lucass observation of Baldwin
touching Wegers shoulders and Weger rolling her eyes; and (6) the September 2002
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incident where Officer Bonney and Sgt. Wagner saw Baldwin rubbing Murphys
shoulders and Murphy grimaced and turned away from Baldwin.
The district court found, as a matter of law, that these instances did not impute
constructive notice to the Department that Baldwin was sexually harassing the
Plaintiffs because they occurred over a substantial period of time and no single officer
observed more than three incidents. Though the behavior attributed to Baldwin is
reprehensible, the six instances observed by Department employees lack the requisite
pervasiveness to support a finding that it was obvious to everyone. See Smith, 109
F.3d at 1265 n.3. Therefore, as a matter of law, constructive knowledge that Baldwin
was sexually harassing the Plaintiffs cannot be imputed to the Department before it
received actual notice via Murphys complaint on November 5, 2002. Accordingly,
the district court properly evaluated the promptness of the Departments efforts to
correct Baldwins harassment from that date. See Robinson v. Valmont Indus., 238
F.3d 1045, 1047 (8th Cir. 2001) (When assessing the reasonableness of an
employers remedial actions, the court may consider the amount of time that elapsed
between the notice of the harassment and the remedial measures taken . . . .).
Because the harassment ended that day, the Department satisfied its duty under the
correction prong of the first element of the Ellerth-Faragher affirmative defense. See
Whitmore v. OConnor Mgmt., Inc., 156 F.3d 796, 800 (8th Cir. 1998) (affirming
grant of summary judgment to an employer on hostile work environment sexual
harassment claim where an explicit communication to . . . management of
[employees] complaints brought a prompt and appropriate remedial response).
Finally, Plaintiffs contend, despite the fact that Baldwins harassment ended the
day of Murphys complaint, that the Department failed to satisfy the correction prong
because its investigation of Murphys complaint was flawed and its remedial action
was harsh and skewed in favor of Baldwin. Generally, where the employer responds
to a sexual harassment complaint in such a way as to promptly stop the sexual
harassment, there is no basis for finding employers postcomplaint actions not
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sufficiently corrective. See Walton v. Johnson & Johnson Servs., Inc., 347 F.3d 1272,
1288 (11th Cir. 2003) ([W]here the substantive measures taken by the employer are
sufficient to address the harassing behavior, complaints about the process under which
those measures are adopted ring hollow.); Farley v. Am. Cast Iron Pipe Co., 115 F.3d
1548, 1555 (11th Cir. 1997) (Although [an employee] remains unsatisfied with [her
employers] resolution of her complaint, we have never stated . . . that a complainant
in a discrimination action has a right to the remedy of her choice.).
Plaintiffs point to a number of defects in Wickenhausers investigation, which
were addressed by the district court, to establish the unreasonableness of the
Departments corrective actions. As the district court stated, Wickenhauser found
against the weight of the evidence, that Baldwin did not harass Murphy and Weger.
In addition, he dealt harshly with witnesses who buttressed Plaintiffs[] claims,
advising them that Baldwin could sue them for slander. Furthermore, Wickenhauser
compromised the confidential nature of the investigation by relaying the content of the
interviewees statements to Baldwin. While the district court correctly characterized
these flaws as significant, they do not show that the Department failed to fulfill
its duty under the correction prong, which seeks to ensure that once employers are
alerted to harassment they act promptly to bring it to an end, because Baldwins
harassment undisputedly stopped the day that Murphy reported it. Thus, the flaws in
the Chiefs investigation do not create a genuine issue of fact with regard to the
correction prong. Furthermore, Plaintiffs attempt to analogize this case to Mota v.
Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512 (5th Cir. 2001) is not persuasive.
There, the Fifth Circuit held that there was a genuine issue of fact as to whether the
employer exercised reasonable care to promptly correct harassment because the
employer had left it to the victim and the harasser to work out a mutually agreeable
accommodation and failed to issue a reprimand or warning as it had in similar past
situations. Id. at 525. Thus, the Departments postcomplaint response sufficiently
distinguishes this case from Mota.
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Plaintiffs also contend that the Departments postcomplaint actions do not
satisfy the correction prong because they were harsh and skewed in Baldwins favor.
However, [i]f an employer has . . . notice of harassment but takes immediate and
appropriate corrective action, the employer is not liable for the harassment. Watson,
324 F.3d at 1261. Here, as our previous analysis established, the Department had
notice of Baldwins harassment on November 5, 2002. When Chief Wickenhauser
became aware of Murphys complaint the following day, he took immediate action to
discuss the claims with Murphy, investigate them, and distance Baldwin from
Plaintiffs by temporarily relieving him of his supervisory duties for the
communications officers and instructing him not to enter the communications area
unless in the company of another supervisor and for a work-related purpose. See
Cerros, 398 F.3d at 954 (recognizing that prompt investigation of the alleged
misconduct [is] a hallmark of reasonable corrective action). Moreover, at the
conclusion of investigation, Wickenhauser permanently reassigned Baldwin so that
he was no longer Plaintiffs uniformed supervisor. See McCurdy v. Ark. State Police,
375 F.3d 762, 771 (8th Cir.), cert. denied, 543 U.S. 1121 (2005) (finding that
employer took proper remedial action where it immediately . . . insulate[d] [the
alleged victim] from further offensive conduct). Most significant, Baldwins
harassment ended the day the Department received notice of it. See Walton, 347 F.3d
at 1288 (Remedial measures should be designed to stop the harassment . . . and
ensure that the harassment does not recur.); McKenzie v. Ill. Dept of Transp., 92
F.3d 473, 481 (7th Cir. 1996) (finding no genuine issue of fact as to the correction
prong where the prompt and remedial action taken by the employer was completely
effective).
Therefore, there is no genuine issue of fact with regard to the timeliness and
adequacy of the Departments corrective actions. Thus, the district court correctly
found that the City of Ladue acted reasonably to prevent and promptly correct
sexually harassing behavior such that it has satisfied the first element of the Ellerth-
Faragher affirmative defense as a matter of law.
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B.
Plaintiffs also contend that the district court erred in finding that, as a matter of
law, the Plaintiffs unreasonably delayed reporting Baldwins harassment. In order to
satisfy the second element of the Ellerth-Faragher affirmative defense, the Department
must show that the [Plaintiffs] unreasonably failed to take advantage of any
preventative or corrective opportunities provided by the [Department] or to avoid
harm otherwise. Williams, 407 F.3d at 976 (quoting Faragher, 524 U.S. at 807).
Though proof that an employee failed to fulfill the corresponding obligation of
reasonable care to avoid harm is not limited to showing any unreasonable failure to
use any complaint procedure provided by the employer, a demonstration of such
failure will normally suffice to satisfy the employers burden under the second
element of the defense. Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807-08.
Though [t]here is no bright-line rule as to when a failure to file a complaint becomes
unreasonable, Reed v. MBNA Mktg. Sys., Inc., 333 F.3d 27, 35 (1st Cir. 2003), this
court has previously found four months delay in invoking an employers grievance
procedure unreasonable. See Williams, 407 F.3d at 976-77; see also Walton, 347 F.3d
at 1289-91 (finding two and one half months delay in invoking employers
antiharassment policy unreasonable).
Plaintiffs admit that they knew the Departments antiharassment policy was in
effect at the inception of Baldwins harassment and that they were to invoke the
Departments complaint procedure the first time they were harassed. However,
Murphy did not report the harassment for over a year, and Weger only did so when
directly questioned about Baldwins conduct toward her during Chief Wickenhausers
investigation. Therefore, absent some credible basis for Plaintiffs admitted year long
delay in reporting Baldwins harassment, the City of Ladue has established the second
element of the affirmative defense.
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Plaintiffs contend that their delay was not unreasonable in light of their credible
fears of retaliation and their belief that they would not receive a fair investigation due
to Baldwins and Wickenhausers close relationship. We recognize the enormous
difficulties involved in lodging complaints about discrimination in the workplace,
including sexual harassment, see Coates v. Sundor Brands, Inc., 164 F.3d 1361, 1366
(11th Cir. 1999) (per curiam), specifically,the great psychological burden it places
on one who is already the victim of harassment to require that person to complicate
further his or her life with the ramifications, both legal and otherwise, of making a
complaint. Id. We further acknowledge that this burden is even greater where, as
here, the victims of harassment perceive a bias in favor of their harasser on the part
of the individual that will investigate their harassment complaint. However, as the
First Circuit observed:
Reporting sexually offensive conduct by a supervisor would for many or
most employees be uncomfortable, scary or both. But because this will
often or ordinarily be true, as the Supreme Court certainly knew, its
regime necessarily requires the employee in normal circumstances to
make this painful effort if the employee wants to impose vicarious
liability on the employer and collect damages under Title VII. In short,
for policy reasons representing a compromise, more than ordinary fear
or embarrassment is needed.
Reed, 333 F.3d at 35 (citing Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261,
270 (4th Cir. 2001)). Thus, an employees subjective fears of confrontation,
unpleasantness or retaliation do not alleviate the employees duty . . . to alert the
employer to the allegedly hostile environment. Williams, 407 F.3d at 977 (quoting
Shaw, 180 F.3d at 813). The complaint mechanism, after all, can be used to address
threats of retaliation as well as harassment . . . . Reed, 333 F.3d at 36.
Accordingly, Plaintiffs must demonstrate a truly credible threat of retaliation,
see id., in order to render their delay reasonable. See Walton, 347 F.3d at 1290-91
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([A]bsent a credible threat of retaliation, [an employees] subjective fears of reprisal
do not excuse her failure to report [a supervisors] alleged harassment.); Matvia, 259
F.3d at 270 (holding that a nebulous fear of retaliation is not an adequate basis for
not reporting); Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 295 (2d Cir.
1999) (requiring a credible fear of retaliation to excuse employees delay in reporting
workplace harassment). For example, general statements by a supervisor that a
complaint will be futile or will get the employee in trouble cannot be an automatic
excuse for failing to use the complaint mechanism. See Reed, 333 F.3d at 36; see
also Walton, 347 F.3d at 1291 (finding that, where the allegedly harassing supervisor
never told [employee] that her job was in jeopardy, nor did he threaten her with
physical harm, the employee did not reasonably avail herself of the protections
afforded by [her employers antiharassment] policies).
In this case, because the record is devoid of any threat by any Department
employee, Plaintiffs fear of retaliation is not credible and, thus, does not excuse their
year long delay in reporting Baldwins harassment. Furthermore, the reasonableness
of Plaintiffs fears of retaliation is further called into question because the
Departments antiharassment policy contained an antiretaliation provision.
Additionally, Plaintiffs concerns that they would not receive a fair investigation of
their complaint due to Chief Wickenhausers relationship with Baldwin are
insufficient to excuse their delay. See Gordon, 469 F.3d at 1195 (finding insufficient
to defeat summary judgment employees belief that reporting harassment, in
accordance with employers antidiscrimination policy, would have been
ineffective); Reed, 333 F.3d at 36 ([C]oncerns as to whether the complaint
mechanism will fail can be tested by trying it out if failure is the only cost.); Caridad,
191 F.3d at 295 ([T]here are many reasons why a victimized employee may be
reluctant to report acts of workplace harassment, but for that reluctance to preclude
the employers affirmative defense, it must be based on . . . [a] credible fear that her
complaint would not be taken seriously.).
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We, therefore, find Plaintiffs unreasonably delayed reporting Baldwins
harassment, satisfying the second element of the affirmative defense as a matter of
law. Because the preceding analysis established that the Department satisfied both the
prevention and correction prongs of the first element, we affirm the judgment of the
district court that the City of Ladue is entitled to the Ellerth-Faragher affirmative
defense as a matter of law.
III.
Plaintiffs contend the district court erred in finding that they had failed to make
out a prima facie case of retaliation, specifically, that they did not establish an adverse
employment action in light of an intervening Supreme Court case, Burlington
Northern & Santa Fe Railway Co. v. White, 548 U.S. ___, 126 S. Ct. 2405 (2006).
Though we recognize that the Supreme Court broaden[ed] . . . the retaliation prima
facie case in Burlington Northern, for the reasons explained below, Plaintiffs
allegations remain inadequate. See Higgins v. Gonzales, 481 F.3d 578, 589 (8th Cir.
2007) (citing Burlington N., 126 S. Ct. at 2405).
In addition to proscribing sexual harassment in the workplace, Title VII
prohibits retaliation against employees who allege, or participate in an investigation
or proceeding alleging, a violation of Title VII by his or her employer. See 42 U.S.C.
2000e-3(a); Burlington N., 126 S. Ct. at 2415. To make out a prima facie case of
retaliation, Plaintiffs must show: (1) they engaged in protected conduct; (2)
reasonable employees would have found the challenged retaliatory action materially
adverse; and (3) the materially adverse action was causally linked to the protected
conduct. See Burlington N., 126 S. Ct. at 2415; Higgins, 481 F.3d at 589 (citing
Singletary v. Mo. Dept. of Corrs., 423 F.3d 886, 892 (8th Cir. 2005) (providing prior
standard, which required an employee to show an adverse employment action to
satisfy the second prong)). The materially adverse action prong is objective,
requiring us to consider whether a reasonable employee in the plaintiffs position
-24-
might have been dissuaded from making a discrimination claim because of the
employers retaliatory actions. Carrington, 481 F.3d at 1050 (quoting Higgins, 481
F.3d at 589). Therefore, we must separate significant from trivial harms in order
to determine whether Plaintiffs have satisfied this prong. See Burlington N., 126 S.
Ct. at 2415.
Plaintiffs challenge a number of the Departments postcomplaint activities as
materially adverse actions, including: (1) isolating them from their coworkers through
Chief Wickenhausers directives; (2) supervisor Allison papering their personnel
files; (3) conducting performance evaluations of Plaintiffs for the first time; (4)
ostracizing Plaintiffs; (5) failing to provide Murphy compensatory time equal to other
communication officers; (6) failing to provide equitable overtime to Weger; and (7)
removing Weger from her position as a training officer. We address each action in
turn.
First, Chief Wickenhausers directives were not materially adverse because they
were issued to the Department as a whole, resulted in only minor changes in
workplace procedure, and impacted the Plaintiffs in the same way as all other
communications officers. Though the Plaintiffs contend that the directives were
designed to isolate them from their coworkers, the directives did not, in any way,
single out the Plaintiffs. It simply does not follow that an employers announcement
of a new policy that affects all or substantially all of its employees in the same manner
would so adversely affect the Plaintiffs lives that it would have dissuaded them from
reporting Baldwins harassment. See Higgins, 481 F.3d at 591. Moreover, Plaintiffs
attempt to analogize the isolation they felt as a result of the directives with the
actionable retaliation in Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073
(6th Cir. 1999) is not persuasive. In Moore, following the plaintiffs discrimination
complaint, his employer intentionally isolated him from his coworkers by
instructing the other employees not to talk to him, go into his area or otherwise
interact with him. Id. at 1080. On the contrary, to the extent that the directives in
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this case resulted in Plaintiffs feeling isolated, they could feel no more isolated than
any other communication officer because they were all affected in the same way by
the directives.
Second, supervisor Allisons increased notetaking with regard to Plaintiffs
work activities does not satisfy Burlington Northerns materially adverse standard
where the notes were largely positive or neutral and Plaintiffs have failed to raise any
allegation as to how the inclusion of Allisons notes in their personnel files had any
negative impact on their lives. See 126 S. Ct. at 2415. Absent such an allegation, we
are unable to characterize this as an adverse action, let alone a materially adverse
one. See Higgins, 481 F.3d at 590. Moreover, Plaintiffs reliance on Kim v. Nash
Finch Co., 123 F.3d 1046 (8th Cir. 1997) is misplaced. There, this court used the term
papering to refer to the employers practice of filling the plaintiff-employees
personnel file with negative reports, some of which involved petty and insignificant
incidents, as well as two written reprimands. Id. at 1061. However, Allisons
increased notetaking activities do not approach the kind of retaliatory activity in Kim
because the Plaintiffs do not allege that the papering of their files included even a
single reprimand and, in fact, it largely consisted of positive or neutral reports.
Third, the requirement that Plaintiffs receive performance evaluations, for the
first time, following their harassment complaint is not materially adverse under
Burlington Northern because, again, this policy applied to, and affected all,
communications officers equally. Furthermore, the evaluations were not adverse
where the Plaintiffs received primarily superior or above standard ratings, and
neither asserted any negative impact from these evaluations. We also note that the
first performance evaluation of either plaintiff took place on March 5, 2003, four
months after Murphys complaint. Though not dispositive, we have previously held
that an interval as brief as two months did not show causation for purposes of
establishing a retaliation claim, . . . and that a two-week interval was sufficient, but
-26-
barely so . . . . See Lewis v. St. Cloud State Univ., 467 F.3d 1133, 1138 (8th Cir.
2006) (internal quotation and citation omitted).
Fourth, the fact that Plaintiffs felt ostracized by Chief Wickenhauser and other
officers falls short of Burlington Northerns materially adverse standard because
Plaintiffs did not suffer significant harm. See 126 S. Ct. at 2415. The only specific
instances of ostracism alleged by the Plaintiffs is Murphys exclusion from several of
the male police officers happy hours, which she had been invited to prior to her
complaint; however, ostracism of this sort was specifically addressed and found
lacking by the Burlington Northern Court. There, the Court instructed that [a]
supervisors refusal to invite an employee to lunch is normally trivial, a nonactionable
petty slight. But to retaliate by excluding an employee from a weekly training lunch
that contributes significantly to the employees professional advancement might well
deter a reasonable employee from complaining about discrimination. See id. at 2415-
16. The petty slights and snubs Murphy experienced in being excluded from after
work social activities, without facts showing how this exclusion materially and
adversely affected [her] life such that a reasonable employee in her shoes would be
dissuaded from complaining, are akin to the sort of trivial harms that do not rise to
the level of retaliation. See Higgins, 481 F.3d at 591. Furthermore, we cannot allow
Plaintiffs subjective feelings about being ostracized to steer our analysis because to
do so would result in the uncertainties and unfair discrepancies the Supreme Court
expressly sought to avoid in Burlington Northern. See 126 S. Ct. at 2415.
Finally, with regard to Plaintiffs three remaining allegations, we need not
examine whether they are sufficiently adverse to satisfy Burlington Northern because
they all fail for lack of evidentiary support. See Fed. R. Civ. P. 56(e) (requiring
Plaintiffs to set forth specific facts showing there is a genuine issue for trial);
Robinette v. Jones, 476 F.3d 585, 591 (8th Cir. 2007) (Without . . . facts to
demonstrate that there is a genuine issue for trial, . . . mere allegations . . . cannot
defeat summary judgment.). The Departments alleged failure to provide Murphy
7Because the Plaintiffs claims under the MHRA are premised on the same
factual bases as their federal claims, they must also fail. See LeGrand, 394 F.3d at
1101.
-27-
with equitable compensatory time and Weger with equitable overtime as well as its
alleged removal of Weger from her position as a training officer amount to nothing
more than unsupported, conclusory allegations, which are insufficient to defeat a
motion for summary judgment. See id. In short, Plaintiffs have not demonstrated a
genuine issue of fact where they have not produced any evidence that the Department
actually engaged in these acts. Moreover, because Weger admitted that she was not
a training officer prior to her sexual harassment complaint, Plaintiffs allegation
connecting Wegers alleged removal from this position with the complaint is facially
invalid.
On this record, Plaintiffs have not produced evidence substantiating a prima
facie case of retaliation where the Departments allegedly materially adverse actions
were either: (1) so trivial that they are not the sort of actions that would dissuade a
reasonable employee from reporting discrimination or (2) entirely lacking evidentiary
support. Therefore, despite the intervening shift in analysis under Burlington
Northern, the district court properly dismissed Plaintiffs retaliation claim.
IV.
In sum, we conclude that the City of Ladue established the Ellerth-Faragher
affirmative defense as a matter of law and that Plaintiffs have failed to demonstrate
a prima facie case of retaliation. We, therefore, affirm the judgment of the district
court, dismissing Plaintiffs hostile work environment sexual harassment and
retaliation claims against the City.7
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LOKEN, Chief Judge, concurring.
Relying on cases such as Hall v. Gus Construction Co., 842 F.2d 1010 (8th Cir.
1988), that had nothing to do with applying the Ellerth-Faragher defense, Judge Bye
argues that the City failed to satisfy the correction prong of the defense because it
had actual or constructive notice of possible harassment before either plaintiff
complained. In my view, this issue is controlled by a portion of the Supreme Courts
explicit holding in Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998):
while proof that an employee failed to fulfill the corresponding
obligation of reasonable care to avoid harm is not limited to showing an
unreasonable failure to use any complaint procedure provided by the
employer, a demonstration of such failure will normally suffice to satisfy
the employers burden under the second element of the defense.
Thus, I find Judge Shepherds discussion of whether the City had constructive notice
to be unnecessary, although I agree with his conclusion. With this caveat, I join in
Judge Shepherds opinion.
BYE, Circuit Judge, concurring in part and dissenting in part.
I join the majoritys decision affirming the district courts summary dismissal
of plaintiffs retaliation claims and in concluding the City of Ladue (City) exercised
reasonable care to prevent sexually harassing behavior. See Burlington Indus., Inc.
v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775
(1998) (setting forth the Ellerth/Faragher affirmative defense). However, the
evidence, when viewed in the light most favorable to the plaintiffs, demonstrates the
City had actual and constructive notice of Captain William Baldwins harassing
behavior but failed to exercise reasonable care to promptly correct it. Accordingly,
the City may not avail itself of the protections afforded by the Ellerth/Faragher
affirmative defense. See Faragher, 524 U.S. at 807.
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For purposes of this appeal, there is no dispute the plaintiffs made a prima facie
showing of sexual harassment. Because Baldwin was the plaintiffs supervisor, the
City is liable for his wrongful conduct unless it establishes by a preponderance of the
evidence it 1) exercised reasonable care to prevent and promptly correct any sexually
harassing behavior, and 2) the plaintiffs unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the City or to avoid harm
otherwise. Id.; Williams v. Mo. Dept of Mental Health, 407 F.3d 972, 976 (8th Cir.
2005). The first element of the affirmative defense requires an employer to prove it
1) exercised reasonable care to prevent sexual harassment (the prevention prong),
and 2) promptly corrected any sexual harassment that did occur (the correction
prong). Faragher, 524 U.S. at 807. Plaintiffs contend the City failed to meet its
burden under the correction prong because it had actual and constructive notice of
Baldwins harassing behavior and failed to take prompt and appropriate corrective
action. I agree.
I.
As evidence of actual notice, the plaintiffs offer the Citys antiharassment
policy and the observations of supervisors Sergeant John Wagner and Lieutenant
William Baker.
The Citys antiharassment policy requires all supervisors to 1) monitor the
police departments work environment for any signs of harassment on a daily basis,
2) advise employees about the types of behavior prohibited and complaint procedures,
3) stop all observed acts of harassment regardless of whether the employees involved
are under his or her supervision, and 4) take immediate action to limit the work
contact between employees involved in a complaint of harassment pending
investigation. Additionally, all employees are mandated to report harassment and
subject to disciplinary action if they fail to report observed acts of harassment.
8Wagner testified he did not remember if Baldwin used the term breasts or an
offensive term.
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Wagner has been employed with the Ladue Police Department throughout the
plaintiffs tenure. He was a detective when Weger and Murphy were hired and was
later promoted to sergeant. As a sergeant, Wagner is a supervisor and subject to the
duties imposed by the Citys antiharassment policy upon supervisors. In accordance
with the policy, Wagner was trained to report sexual harassment. Appellants App.
at A1556. Despite his training, Wagner conceded if the harassment involved a
superior officer: I guess technically I would I should go over that lieutenans you
know. I should go above his head, but the reality of it is thats not what you would
do. Id. at A1557. Wagner testified he believed reporting a superior officer would
place his employment at risk. Id. at A1559.
It is against this backdrop of what Wagner heard or observed which included
several instances of conduct perpetrated by Baldwin and were offered by the plaintiffs
as sufficient to have afforded the City actual notice of sexual harassment.
The first instance occurred when Wagner was asked by Baldwin to assist in
conducting interviews of Wegers neighbors as part of her background check. While
canvassing Wegers neighbors, Wagner inquired about Wegers qualifications.
Baldwin responded by stating Weger used to have big breasts but had breast
reduction surgery. Id. at A1562-63. Wagner testified the comments took him by
surprise and Baldwin was giggling and told him not to tell anyone. Id.
Wagner had a strikingly similar conversation with Baldwin when Murphy was
hired. On this occasion, Wagner, Baldwin, and Lieutenant William Baker (then a
detective) were in the detective bureau discussing Murphys impending hire.
Baldwin, in what Wagner characterized as a giggly and childish display, stated
Murphy was not much to look at but she had large breasts.8 Id. at A1568-69. Despite
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finding Baldwin's comments strange and inappropriate, Wagner testified he never
considered reporting the incident as required by the City's antiharassment policy, id.
at A1570, because it would be uncomfortable, id. at A1572.
On another occasion, Wagner and Officer Richard Bonney were standing in a
hallway at the police department and observed Baldwin walking behind Murphy
rubbing her shoulders. Id. at A1573. As Murphy walked down the hallway, Baldwin
followed behind her rubbing her shoulders telling her: It'll be okay. Id. In response,
Murphy grimaced, id. at A1734, and pulled away from Baldwins grasp, id. at A1573.
Officer Bonney testified that upon observing Baldwin's behavior, Wagner looked at
me and shook his head and said I cant believe this or cant believe that. Id. at
A1736.
The plaintiffs further allege Baldwin on occasion crawled under their desks and
massaged their legs. Wagner testified he observed Baldwin crawl under the desks of
female employees while they were working. Id. at A1576-77. Wagner initially
testified he understood Baldwin was under the desks trying to repair something, id.
at A1577, but later stated he did not really know what Baldwin was doing, id. at
A1578. Still later, Wagner testified he heard from others in the department Baldwin
crawled under female employees desks to rub or feel their ankles. Id.
Finally, Wagner testified he was aware employees in the department referred
to Baldwin as Tickle Me Elmo and Captain Tickles, and the nicknames derived
from Baldwins known propensity for tickling and touching female employees. Id.
at A1580-81, A1583.
Lieutenant William Baker has also been employed with the Ladue Police
Department throughout the plaintiffs tenure. Like Wagner, Baker was promoted to
a supervisory position within the department after the plaintiffs were hired. During
such time, Baker became aware Baldwin was engaging in offensive and puerile
-32-
conduct directed towards female employees. Baker knew of Baldwins comments
regarding Wegers breasts and breast reduction surgery because Wagner conveyed
them to him in a conversation. Id. at A1353. Baker was also present when Baldwin
commented on Murphy's breasts and general appearance. Baker testified Baldwin
stated: She's not much to look at, but she has big tits. Id. at A1350. Baker also
observed Baldwin on two occasions tickling a female communications supervisor, and
on a third occasion saw Baldwin kneeling next to the same supervisor with his arm
around her and his face within an inch of hers. Id. at A1362. Baker testified he
believed the comments and contact were childish and improper. Id. at A1351, A1362.
He did not, however, report the incidents.
There is no serious dispute over whether these incidents occurred or whether
Wagner and Baker found them offensive. Moreover, there is no dispute they were
required, as supervisors, to report their observations under the Citys antiharassment
policy. Nonetheless, the majority concludes the City cannot be charged with actual
notice of sexual harassment observed first hand by supervisors charged with the
responsibility of reporting such behavior unless, in addition to actually observing
the harassment, the targeted employee tells the supervisors that what they observed
and understood to be harassment, was harassment. I cannot sign on to such a crabbed
construction of actual notice.
An employer has actual notice of harassment when sufficient information either
comes to the attention of someone who has the power to terminate the harassment, or
it comes to someone who can reasonably be expected to report or refer a complaint to
someone who can put an end to it. Young v. Bayer Corp., 123 F.3d 672, 674 (7th Cir.
1999) (citations omitted). [A]ctual notice is such notice as is positively proved to
have been given to a party directly and personally, or such as he is presumed to have
received personally because the evidence within his knowledge was sufficient to put
him upon inquiry. Black's Law Dictionary 1061-62 (6th ed. 1990) (emphasis added).
In the context of sexual harassment claims, [a]ctual notice is established by proof that
9There may be instances where notice is not conferred by the observation of a
single isolated act of harassment or where the objectionable nature of the conduct may
not be objectively apparent. Neither of these situations is present here. Wagner and
Baker observed several instances of Baldwins boorish behavior and knew it was
harassment.
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management knew of the harassment. Watson v. Blue Circle, Inc., 324 F.3d 1252,
1259 (11th Cir. 2003) (emphasis added). Whereas, constructive notice is established
when the harassment was so severe and pervasive that management reasonably should
have known of it. Id. (emphasis added); see also Martin v. Wal-Mart Stores, Inc.,
183 F.3d 770, 772 (8th Cir. 1999) (noting an employer is deemed to have actual notice
of a dangerous condition if an employee created or was aware of the hazard).
Given Wagners and Bakers first hand observations of Baldwins behavior, it
simply cannot be argued they did not know the harassment was occurring.9 Moreover,
as supervisors, Wagner and Baker were charged under the Citys antiharassment
policy with the duty to report and stop any observed sexual harassment. Thus, notice
of harassment to either of them constituted notice to the City. See Williamson v.
Houston, 148 F.3d 462, 467 (5th Cir. 1998) (If the employer has structured its
organization such that a given individual has the authority to accept notice of a
harassment problem, then notice to that individual is sufficient to hold the employer
liable.). Despite this evidence, the majority concludes neither Wagner, Baker, or the
City can be charged with actual notice of harassment unless a formal complaint was
tendered by the victim. In support of this unduly narrow view of actual notice, the
majority cites Watson v. Blue Circle, Inc., 324 F.3d 1252, 1259 (11th Cir. 2003), and
Minix v. Jeld-wen, Inc., No. 06-16094, 2007 WL 182259, at *2 (11th Cir. June 27,
2007). Neither of these cases supports the majoritys conclusion that under Title VII,
a supervisor, charged with the responsibility of reporting harassment, is free to ignore
it unless a complaint is filed.
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Watson, involved allegations by a female employee of a concrete company who
claimed she was sexually harassed on the job. 324 F.3d at 1255. The plaintiff offered
evidence of numerous incidents of verbal and physical harassment inflicted by male
co-workers and customers. Id. at 1255-56. In reversing the district courts grant of
summary judgment on behalf of the employer, the court of appeals concluded there
were genuine issues of material fact as to whether the employer had actual notice of
several of the alleged incidents. Id. at 1259. Among other evidence of actual notice,
the court noted the plaintiff presented evidence showing her supervisor had observed
her crying after one incident and had been told by other workers the plaintiff was
upset by the harassing conduct. Id. Nowhere in the opinion did the court suggest the
only means by which the employer could be deemed to have actual notice was if the
plaintiff filed a formal complaint of harassment. Indeed, because the Watson court
discussed evidence which might provide actual notice short of filing a complaint, it
actually contradicts the majoritys narrow view of actual notice. Id.
Next, the majority relies on Minix, an unpublished per curiam opinion from the
11th Circuit. 2007 WL 1828259. In Minix, the company had an antiharassment
policy which designated certain employees to whom harassment complaints could be
made. Id., at *2. A group of employees argued the company had actual notice of their
harassment because it had been reported to a co-employee who was not listed among
those designated to receive complaints. Id. The court of appeals affirmed the district
courts grant of summary judgment because the complaint of harassment had been
delivered to the wrong person, i.e., not someone authorized under the policy to receive
complaints. The court did not hold that the only way for an employer to receive actual
notice of sexual harassment is to be served a complaint.
Unlike Minix, a case from our court supports the plaintiffs position. See Hall
v. Gus Const. Co., 842 F.2d 1010 (8th Cir. 1988). In Hall, the plaintiffs were female
employees of a construction company who alleged they were routinely subjected to
sexual harassment by male co-employees. 842 F.2d at 1012. Following a bench trial,
10The majority notes the district court considered six examples of alleged sexual
harassment. We are limited by the record not by what the district court chose to
consider.
-35-
the court found in favor of the plaintiffs and the employer appealed, arguing, among
other things, it did not have notice of the harassment. This court concluded the
employer had actual notice knew of the harassment because the plaintiffs informed
their supervisor and the supervisor observed many of the incidents. Id. Contrary
to the majoritys assertion, Hall holds that when the agent of an employer observes
harassment first hand the employer may be charged with actual notice.
Construing the evidence in favor of the plaintiffs, it is apparent Wagner and
Baker knew Baldwin routinely subjected Weger, Murphy, and female employees
generally, to loutish behavior which could reasonably be construed as sexual
harassment. I am unable to uncover any cases to support the majoritys conclusion
that the supervisors first hand observations of Baldwins conduct were insufficient
to charge them and the City with actual notice of the harassment. Nor am I able to
divine any principled reason for holding that, in the context of Title VII claims, actual
notice should be defined to exclude knowledge gained by experiencing or observing
wrongful conduct first hand. Accordingly, I dissent from the majoritys contrary
conclusion.
II.
I also dissent from the majoritys holding as to Weger and Murphy failing to
present sufficient evidence to prove the City reasonably should have known of
Baldwins offensive conduct. In addition to the first hand observations of Wagner and
Baker detailed above, the record contains the following evidence in support of
plaintiffs claim the City should have known Baldwin was engaged in a pattern of
sexual harassment.10
-36-
Weger and Murphy: Murphy testified Wagner told her, within a few months
of her hire, that Baldwin had commented she wasn't much to look at, but . . . had big
tits. Appellants App. at A159. Similarly, Weger testified she told Baldwin during
her interview process she had undergone breast reduction surgery. Some months later,
Wagner told her Baldwin informed him of her surgery during the background
investigation. Id. at A276-79. Weger further testified she was uncomfortable when
she realized the information had become known throughout the department and
officers commented that it didn't even look like you had a procedure. Id.
The plaintiffs also testified they were present when Baldwin harassed other
female employees, and were subjectively aware of those incidents. For example,
Murphy was present when Baldwin crawled under Goins workstation and then
massaged her shoulders. Id. at A150-51. She was also privy to incidents involving
Allison, the communications supervisor. Id. at 51. Weger testified she witnessed
instances when Baldwin tickled Allison and hugged Murphy. Id. at A267.
Detective Chris Schmitz: Schmitz testified he heard Baldwin referred to by
other members of the police department as Captain Tickles and Tickle Me Elmo.
He stated the nicknames were in reference to Baldwins known propensity for tickling
female employees. Appellants App. at A1619-22. Schmitz also described an
incident involving Baldwin and a female employee, Kristin Goin. Schmitz stated he
stopped by the dispatch workstations to speak with Murphy. While there, he noticed
Baldwin lying on the floor underneath Goins workstation. After several minutes,
Baldwin stood up and began massaging Goins shoulders, telling her everything
would be alright and not to worry. Id. at A1626-27. Schmitz testified Baldwin only
stopped after Goin said: Sir, if you don't mind. Schmitz believed Baldwins actions
were inappropriate but did not report them out of fear for his employment. Id. at
A1627-28. Finally, Schmitz testified that when Baldwin conducted interviews of
prospective female employees, he would come down to the detective bureau after the
-37-
interviews and describe each applicants appearance to the officers present using terms
like: big tits, great ass, nice long legs or dick-sucking lips. Id. at A1646-47.
Detective Glen Norman: Norman testified on one occasion he entered the
communications area where Murphy worked and observed Baldwin with his arm
around her shoulder, leaning close to Murphys face. Id. at A1664-66. Norman
testified Murphy abruptly stood up and walked towards him. As she did, Murphy
whispered: I can't stand him. Id. Norman further testified he had heard from others
that Baldwin stated Weger would be difficult to fit for a bulletproof vest because she
had large breasts and Murphy was not much to look at, but somebody would be fing
that before long. Id. at A1666-67. Norman indicated he discussed those comments
with co-workers Schmitz and Bryan Lucas. Finally, Norman testified he was aware
Baldwin was known throughout the department as Captain Tickles and Tickle Me
Elmo because he frequently tickled female employees. Id. at A1680-81.
Detective Bryan Lucas: Lucas confirmed Baldwin was known throughout the
department as Captain Tickles and Tickle Me Elmo, and acquired the nicknames
because he was known to tickle female employees. Id. at A1701-02. Lucas testified
he observed Baldwin tickle dispatcher Pat Allison. Lucas stated: I heard her start to
laugh, and then I heard her say, Captain Baldwin, quit it, sir, youre so bad while she
was laughing. Id. at A1703-04. Lucas testified he found the incident odd and later
mentioned it to Chris Schmitz. Id. On another occasion, Lucas entered the dispatch
area and observed Baldwin standing by Weger rubbing her shoulders. As he walked
by, Lucas observed Weger roll her eyes [l]ike she was kind of putting up with it[.]
Id. at A1705. Lucas also testified he was present when Baldwin discussed female
applicants or employees. He specifically recalled being in the detective bureau along
with Schmitz when Baldwin described one applicant has having large tits. Id. at
1706. Lucas further testified he had discussed Baldwins inappropriate conduct with
other members of the department, including Schmitz and Baker, who reported
observing similar conduct. Id. at A1709-11. Notwithstanding the Citys
-38-
antiharassment policy, Lucas stated: I wouldnt have been real thrilled about coming
forward and saying anything. Id. at A1713.
Officer Richard Bonney: Bonney testified he observed Baldwin come up behind
Murphy when she was facing the copier, grab her around the waist, and tickle her.
When Murphy told him to stop he let go of her but followed behind as she walked to
her desk with his hands out as if he was going to tickle her again, and she . . . told
him to leave [her] alone. Id. at A1733. On another occasion, Bonney witnessed
Baldwin rubbing Murphys shoulders as she walked down a hallway. Bonney stated:
[S]he grimaced and turned away from him like as if to break his grip off of her
shoulders. Id. at A1734.
Constructive notice . . . is established when the harassment was so severe and
pervasive that management reasonably should have known of it. Watson, 324 F.3d
at 1259. [A]n employer may be charged with constructive knowledge of previous
sexual harassment . . . if the harassment was so broad in scope, and so permeated the
workplace, that it must have come to the attention of someone authorized to do
something about it. Fall v. Ind. Univ. Bd. of Tr., 12 F. Supp. 2d 870, 882 (N.D. Ind.
1998) (emphasis added) (citations omitted).
[T]here can be constructive notice in two situations: where an employee
provides management level personnel with enough information to raise
a probability of sexual harassment in the mind of a reasonable employer,
or where the harassment is so pervasive and open that a reasonable
employer would have had to be aware of it.
. . .
[T]hese standards strike the correct balance between protecting the rights
of the employee and the employer by faulting the employer for turning
-39-
a blind eye to overt signs of harassment but not requiring it to attain a
level of omniscience, in the absence of actual notice . . . .
Kunin v. Sears Roebuck and Co., 175 F.3d 289, 294 (3d Cir. 1999).
Viewed in the light most favorable to the plaintiffs, the evidence establishes
conclusively that Baldwins harassing behavior came to the attention of Wagner and
Baker, and, as supervisors, they were authorized in fact mandated to do something
about it under the Citys antiharassment policy. Such evidence alone is sufficient to
prove actual notice I cannot fathom how it also fails the majoritys constructive
notice test.
Additionally, however, several other employees testified Baldwins antics were
common knowledge within the department. He was known throughout as Captain
Tickles and Tickle Me Elmo because of his affinity for tickling female employees.
Employees talked openly with one another about Baldwins behavior, describing it as
childish, odd, and offensive. Moreover, Baldwins offensive conduct was not
reserved for the plaintiffs. The evidence demonstrates he harassed other female
employees similarly. Considering all the evidence marshaled by the plaintiffs, a
reasonable employer should have been aware of Baldwins sexual harassment. The
harassment occurred frequently, continued over a period of years, was obvious to
those who observed it, and would have been easily discoverable by the Citys
representatives.
In its analysis of constructive notice, the majority considers only six incidents
of harassment, thereby discounting or ignoring most of the incidents detailed within
the record. For example, the majority does not mention incidents of harassment
involving other female employees. The majoritys failure to consider this evidence
is neither legally nor factually sound.
-40-
The plaintiffs did not offer evidence relevant to the Citys constructive notice
to prove their substantive sexual harassment claims. If plaintiffs were unaware of
these incidents, the evidence has no bearing on their subjective perceptions of the
workplace. Conversely, the evidence is highly probative of whether the City, had it
been paying as much attention as a reasonable employer, should have discovered
Baldwins sexual harassment. When judging the severity and pervasiveness of
workplace sexual harassment, our court has long held that harassment directed
towards other female employees is relevant and must be considered. See Hall, 842
F.2d at 1014-15 (We also reject appellants contention that the district court
erroneously considered all of the womens claims together in determining that the
harassment was sufficiently pervasive and severe . . . .).
In Williams v. Conagra Poultry Co., 378 F.3d 790, 793-94 (8th Cir. 2004), this
court discussed the distinction between evidence offered to prove the substance of a
plaintiffs hostile work environment claim versus evidence offered to prove the
severity and pervasiveness of harassment in the workplace. In Williams, the plaintiff
(Williams) offered the testimony of several co-workers detailing a host of racially
motivated harassment which occurred during his employment at Conagras plant. Id.
at 793. Conagra objected because Williams conceded he was unaware of the
incidents, and according to Conagra, the evidence could not be used to prove Williams
found the workplace subjectively hostile. Id. at 794. This court, recognizing the
evidence was irrelevant to Williamss subjective perceptions of his workplace,
nonetheless found the evidence highly relevant to prove, among other things, the type
of workplace environment Williams was subjected to. Id. Therefore, evidence not
relevant to prove a plaintiffs subjective perceptions may be relevant for other
purposes.
The same reasoning applies here. Assuming plaintiffs were unaware of the
incidents, they cannot be used to prove their substantive hostile work environment
claims. The evidence is, however, relevant to the issue of constructive notice. In
-41-
other words, taking into account the sum of Baldwins objectionable behavior, its
frequency, duration, and blatancy, should a reasonable employer have discovered it?
Assume a supervisor discloses to a second supervisor his intention to engage
in behavior towards female employees clearly constituting sexual harassment, or
admits to having previously engaged in sexual harassment towards female employees.
Such an admission would be compelling evidence of the employers actual and
constructive notice, i.e., did someone with authority know or should someone with
authority have known about the harassment. Under the majoritys reasoning, this
clear evidence of notice would be disregarded because no complaint was made.
Nothing in the cases I have uncovered suggests Title VII allows employers to turn a
blind eye to what is discovered or reasonably discoverable in the workplace. The
evidence offered by the plaintiffs which demonstrates the breadth of Baldwins
offensive behavior is clearly relevant to prove whether the City acted reasonably in
failing to discover what was occurring within the police department.
III.
The plaintiffs have presented sufficient evidence to show the City knew or
should have known of Baldwins harassing behavior and failed to act promptly to
correct the harassment. Therefore, the City has not proved the affirmative defense.
Accordingly, I would reverse the grant of summary judgment and remand for further
proceedings. I respectfully dissent.
______________________________
 

 
 
 

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