SMITH, Circuit Judge.
Chavonya Watson appeals the district court's
Heartland provides laboratory services, including blood work, to facilities that provide long-term healthcare. Watson, an African-American woman, began working for Heartland as a route phlebotomist on June 18, 2012. As a route phlebotomist, Watson's workday included traveling to several facilities, drawing blood and collecting urine or stool samples from those facilities' patients, and returning to the Heartland lab for a few hours to process the samples that had been collected that day. As a new employee, Watson was subject to a 90-day probationary period.
Watson's route included Plaza Manor Nursing and Rehabilitation Center ("Plaza Manor"). According to her testimony, Watson spent "[a] couple hours" at this facility each day. Watson worked on both the second and the third floors at Plaza Manor. Watson was assigned to draw blood from Charles Ramsey, a third-floor patient.
On September 10, 2012, Ramsey physically accosted Watson. While Watson was attempting to draw Ramsey's blood, he began touching Watson on the inside of her thigh and moved his hand upward. Watson told Ramsey to stop and brushed his hand away several times. When Ramsey touched her "crotch area," Watson took a different strategy and knelt down to draw Ramsey's blood. At this point, Ramsey "started putting his hand up the side of [Watson] because [her] crotch was no longer in his reach." After she stopped attempting to draw his blood because of the continued touching, Ramsey "grabbed the back of [Watson's] neck to try to kiss [her]." Watson left Ramsey's room and reported the incident to her employer.
Watson called her phlebotomist team lead, Michelle Gaunt. Gaunt testified that she relayed the information to the phlebotomy supervisor, Tina Akers. Watson testified that she was able to finish the rest of her workday. By 12:24 p.m. that same day, Gaunt entered an alert in Heartland's file on Ramsey stating "[s]end male only to draw." Watson conceded that "Heartland... took prompt action to make sure [she] never provided medical services for... Ramsey after [she] made the complaint." Further, the record reflects that Heartland's Sales Manager, David Clay, contacted Plaza Manor's Assistant Director of Nursing, Wayne Herring, to address the incident that same day, to which Herring communicated "that he would take care of the situation." Upon returning to the lab at the end of her workday, Watson testified that she asked Gaunt and another team lead, Trisha Davis, if she "could possibly... transfer [Plaza Manor] or trade [Plaza Manor]" so that it would no longer be a part of her daily route. Watson testified that both team leads responded affirmatively. Watson testified that when she requested a route change from Akers,
Watson no longer had to provide services to Ramsey and risk further physical contact while working at Plaza Manor; however, Ramsey still managed to verbally assault Watson on several occasions. On September 11, 2012, while Watson was walking past Ramsey in a hallway, Ramsey called her "just a bunch of b[* * * * *]s and n[* * * *]r b[* * * * *]s." According to Watson, this contact lasted only "[s]econds." Watson testified that she reported this incident to Gaunt when she returned to the lab later that day.
The second incident happened a few days later when Ramsey saw Watson leaving the elevator. Ramsey declared "that they were going to put him out." Watson also confirmed that this incident lasted "[j]ust a couple of seconds." Watson understood Ramsey's statement to mean that Plaza Manor was going to remove Ramsey from the facility, but she was never notified specifically when this would happen. The third incident was similar to the second. When Watson was leaving the elevator, Ramsey was again walking by and said to another patient that "[t]his b[* * *]h is getting me put out." Watson notified Akers of Ramsey's continued verbal abuses, to which Akers allegedly responded that "it comes with the territory."
The fourth incident happened sometime later when Ramsey was "hanging out of his door and he saw [Watson] and he came down to the nurses station and just stood there and stared at [Watson] the whole time [she] was there." Watson admitted that this incident was "offputting," but that Ramsey did not "harass [her] sexually" or "harass [her] racially in any way."
The fifth incident happened when Watson was walking past Ramsey's room and "he called [her] a b[* * *]h." A nurse standing nearby heard the comment and immediately confronted Ramsey.
The sixth incident happened when Watson was assigned to draw the blood of Ramsey's roommate. When Watson got the assignment and went to the patient's room, she did not realize that the patient was Ramsey's new roommate. Upon arriving at Ramsey's room, Ramsey promptly asked her "what the f[* *]k are you doing over here[?]" Watson confirmed that this incident only "lasted a couple of seconds." Watson called Gaunt, who told Watson that she would have another person draw Ramsey's roommate's blood. Watson testified that when she returned to the lab later that day, however, Gaunt told her that she should have drawn the roommate's blood and that Gaunt said she was going to write Watson up for failing to do so. Watson never saw this write-up, nor was she asked to sign the write-up. Heartland's policy for disciplinary procedures requires employees to sign write-ups.
The seventh and last incident happened on Friday, September 21, 2013. Watson was waiting for an elevator when Ramsey walked past her and said "[t]hey're putting me out, bitch. I'm going to get you." Watson confirmed that this incident "lasted less than a minute" because Ramsey "kept walking as he was saying it."
The next Monday, September 24, 2012, Watson sent a text message to someone at Heartland saying that she had a flat tire. Watson did not come into work that day or the succeeding two days. Coincidentally, September 24 was the same day that Ramsey was removed from Plaza Manor. Watson testified that "there was nobody else [at Plaza Manor] I had a problem with but just [Ramsey]." Watson even confirmed that "if [she] had gone to work that day, [her] problem would have been alleviated[.]"
During her short employment at Heartland, Watson received several disciplinary write-ups. She received a write-up on August 14 and a verbal warning on August 16, 2012, both of which she considered legitimate. Contemporaneous with Ramsey's offensive conduct, Watson also received two disciplinary warnings. On September 13, 2012, she received a verbal warning for an incident unrelated to Ramsey. Watson agreed that the verbal warning was legitimate and that the document recording the incident accurately described what actually happened. On September 18, 2012, Watson received another warning for an incident that happened while she was working away from Plaza Manor. Watson contests the legitimacy of this warning, which was for her alleged failure to draw blood from a patient who refused to permit it. Based on these warnings, Watson suffered no adverse consequences, was not "docked," was never "told not to report to work," and her "job assignments [were not] changed in any manner."
Also on September 18, 2012, Watson was notified that Heartland was extending her 90-day probationary period. Watson confirmed that Heartland "believe[d] that [her] missing so much work interfered with [her] consistency" and that she "needed to have 30 days without an absence" because she "hadn't gone 30 days without an absence up to [that] point." Further, Watson admitted that she "didn't have a problem with extending the period" because she "needed more time ... to be consistent and things like that."
Watson filed the instant lawsuit alleging violations of the MHRA. Watson alleged that Ramsey's actions constituted sexual and racial harassment that created a hostile work environment, that Heartland constructively discharged her, and that Heartland retaliated against her when she reported Ramsey's harassment. The district court granted Heartland summary judgment on all of Watson's claims. First, the district court found that Ramsey's actions were not enough to affect a term, condition, or privilege of Watson's employment to constitute a hostile work environment. Further, the court found that Heartland's prompt action effectively addressed the instances of harassment that it knew about. Second, the district court found that Watson was not constructively discharged because her working conditions were not so intolerable that she was forced to quit. Third, the court found that Heartland did not retaliate against Watson because Watson was not constructively discharged and the disciplinary write-ups and extension of her probation period were not adverse employment actions.
On appeal, Watson argues the district court erred granting Heartland summary judgment for several reasons. First, she argues that there are genuine disputes of material fact for her hostile work-environment claim to survive summary judgment.
Watson first argues that there are genuine disputes of material fact sufficient to survive summary judgment on her claim that Heartland created a hostile work environment by failing to adequately mitigate Ramsey's sexual and racial harassment. We review the district court's grant of summary judgment de novo. LeGrand v. Area Res. for Cmty. & Human Servs., 394 F.3d 1098, 1101 (8th Cir.2005). "Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Hesse v. Avis Rent A Car Sys., Inc., 394 F.3d 624, 629 (8th Cir.2005) (citing Fed.R.Civ.P. 56(c); Matsushita Electric Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
"In deciding a case under the MHRA, appellate courts are guided by both Missouri law and federal employment discrimination caselaw that is consistent with Missouri law." Daugherty v. City of Md. Heights, 231 S.W.3d 814, 818 (Mo.2007) (en banc) (citation omitted). The MHRA prohibits employers from "discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, national origin, sex, ancestry, age or disability[.]" Mo.Rev.Stat. § 213.055.1(1)(a). In order to survive summary judgment and take her case to a jury, Watson must show that "(1) she ... is a member of a protected group; (2) she was subjected to unwelcome sexual harassment; (3) her gender was a contributing factor in the harassment; ... (4) a term, condition or privilege of her employment was affected by the harassment"; and (5) "the employer knew or should have known of the harassment and failed to take prompt and effective remedial action." Hill v. Ford Motor Co., 277 S.W.3d 659, 666, 666 n. 6 (Mo. 2009) (en banc) (citation omitted). We assume for the sake of analysis that an employer can be liable under the MHRA for harassment by a third party who is not an employee if these elements are satisfied. See Freeman v. Dal-Tile Corp., 750 F.3d 413, 422-23 & n. 4 (4th Cir.2014). The district court found that Watson could not prove the fourth element — that the alleged harassment affected a term, condition, or privilege of her employment.
The standard for proving the fourth element is demanding. "`Sexual harassment creates a hostile work environment when sexual conduct either creates an intimidating, hostile, or offensive work environment or has the purpose or effect of unreasonably interfering with an individual's work performance.'" Lynn v. TNT Logistics N. Am. Inc., 275 S.W.3d 304, 308 (Mo.Ct.App.2008) (quoting Barekman v. City of Republic, 232 S.W.3d 675, 679 (Mo. Ct.App.2007)). This requires the harassment alleged to be "`so intimidating, offensive, or hostile that it poisoned the work environment,'" LeGrand, 394 F.3d at 1101 (quoting Tuggle v. Mangan, 348 F.3d 714, 720 (8th Cir.2003)), and that the "workplace was `permeated with discriminatory intimidation, ridicule, and insult.'" Id. at 1101-02 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)).
Further, Watson must prove this demanding standard "both as it was subjectively viewed by [her] and as it would be
The question before this court, thus, is whether Ramsey's conduct over the period of ten working days
The frequency of Ramsey's conduct was moderate but its duration was brief. Watson testified to a total of eight instances of physical and nonphysical conduct by Ramsey over a period of ten working days. Offensive comments, under Missouri law, have been found sufficient to show a hostile work environment. See Lynn, 275 S.W.3d at 307-08. Watson's case, however, differs. Watson only worked at Plaza Manor for a couple of hours a day. Thus, she was not subject to Ramsey's conduct throughout her workday as in other Missouri and federal cases finding a hostile working environment existed. See, e.g., Ross v. Douglas Cnty., Neb., 234 F.3d 391, 393 (8th Cir.2000); Lynn, 275 S.W.3d at 307 (Mo.Ct.App.2008). Watson also acknowledges that her interactions with Ramsey lasted mere seconds. Given the short duration of Ramsey's actions, we conclude that an objective person would not find that Ramsey's conduct was sufficiently pervasive to poison Watson's work environment or permeate it with intimidation, ridicule, and insult. Ramsey's physical touching of Watson was highly offensive, but applying controlling precedent, his act does not establish a hostile work environment attributable to Heartland. See, LeGrand, 394 F.3d at 1100, 1102.
Regarding the verbal harassment, Watson relies on Ross v. Douglas County, Nebraska to support her contention that being called a highly offensive racial slur is enough to constitute a hostile work environment. 234 F.3d 391. In Ross, we found there was sufficient evidence to constitute
Watson also relies on the First Circuit case of Forrest v. Brinker International Payroll Co., LP to support her argument that being called sexually degrading slurs "has been consistently held to constitute harassment based upon sex." 511 F.3d 225, 229 (1st Cir.2007) (citations omitted). Forrest involved a coworker "barrag[ing]" the victim at work with "sexually degrading, gender-specific epithets, such as `slut,' `cunt,' `whore,' and `b[* * *]h.'" Id. Forrest is not controlling precedent, but even if it were, the instant facts are not comparable.
Viewing Watson's claims in light of precedent, the district court did not err by finding that Ramsey's behavior did not rise to the level of actionable hostile work environment sexual harassment. Thus, we agree with the district court that the evidence presented by Watson fails to show that Ramsey's conduct affected a term, condition, or privilege of her employment.
Next, Watson argues that the district court erred in granting summary judgment in favor of Heartland on her constructive-discharge claim. In order to succeed on a constructive-discharge claim under the MHRA, Watson must prove the following elements: "1) a reasonable person in the employee's situation would find the working conditions intolerable, and 2) the employer intended to force the employee to quit, or the employer could reasonably foresee that its actions would cause the employee to quit." DeWalt v. Davidson Serv./Air, Inc., 398 S.W.3d 491, 501 (Mo.Ct.App.2013) (citing Gamber v. Mo. Dep't of Health & Senior Servs., 225 S.W.3d 470, 477 (Mo.Ct.App.2007)). Missouri courts take the following standards into account when deciding if these elements are met:
Id.
We conclude that a reasonable person would not find Watson's work environment "intolerable." As noted above, Watson was subject to one unwanted instance of physical touching and several verbal assaults by Ramsey, a patient at Plaza Manor, a client of her employer. Ramsey's actions lasted for brief portions of some eight-hour workdays over the course
Finally, Watson argues that Heartland retaliated against her for reporting Ramsey's conduct. The MHRA makes it unlawful for an employer "[t]o retaliate or discriminate in any manner against any other person because such person has opposed any practice prohibited by this chapter or because such person has filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding or hearing conducted pursuant to this chapter." Mo. Ann. Stat. § 213.070(2). To succeed on a claim of retaliation under the MHRA, Watson must prove that "(1) [s]he complained of discrimination; (2) [Heartland] took adverse action against [her]; and (3) a causal relationship existed between the complaint and the adverse action." McCrainey v. Kan. City Mo. Sch. Dist., 337 S.W.3d 746, 753 (Mo.Ct.App.2011) (citing Cooper, 204 S.W.3d at 245). We have already concluded that Watson was not constructively discharged; thus, her argument that such discharge was an "adverse action" fails. We will consider whether the two verbal warnings and extension of her probationary period constitute retaliations under the MHRA.
In order to prove the second element of retaliation, the "adverse action" must "result[] in damage to the plaintiff." Keeney v. Hereford Concrete Prods., Inc., 911 S.W.2d 622, 625 (Mo.1995) (en banc). Heartland argues that this requirement of an adverse action defeats Watson's retaliation claim — which is based on the write-ups and extension of her probationary period — because she was not adversely affected at all by these actions. Heartland did not reduce Watson's pay, lower her work hours, and did not change her job duties. Watson's evidence does not establish even nominal damage based on Heartland's disciplinary actions
Watson finally argues that the actions and words of Akers and Gaunt showed "hostility, and retaliatory animus." See Jackson v. City of Hot Springs, 751 F.3d 855, 862 (8th Cir.2014) (considering an FMLA retaliation claim, stating that "[e]vidence that gives rise to an inference of a retaliatory motive on the part of the employer is sufficient to establish a causal link" (quotation and citations omitted)). We do not believe a reasonable jury could draw this inference from the facts presented. Watson's claim for retaliation fails as a matter of law.
For the reasons stated herein, we affirm.