Filed: Mar. 24, 1997
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 96-2519EM _ Victorija Smith, * * Appellant, * * v. * * On Appeal from the United * States District Court St. Louis University, a * for the Eastern District Missouri Benevolent Corporation * of Missouri. Operating as St. Louis * University Hospital and School * of Medicine, * * Appellee. * _ Submitted: January 13, 1997 Filed: March 24, 1997 _ Before RICHARD S. ARNOLD, Chief Judge, BEAM, Circuit Judge, and ALSOP,* District Judge. _ RICHAR
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 96-2519EM _ Victorija Smith, * * Appellant, * * v. * * On Appeal from the United * States District Court St. Louis University, a * for the Eastern District Missouri Benevolent Corporation * of Missouri. Operating as St. Louis * University Hospital and School * of Medicine, * * Appellee. * _ Submitted: January 13, 1997 Filed: March 24, 1997 _ Before RICHARD S. ARNOLD, Chief Judge, BEAM, Circuit Judge, and ALSOP,* District Judge. _ RICHARD..
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 96-2519EM
_____________
Victorija Smith, *
*
Appellant, *
*
v. *
* On Appeal from the United
* States District Court
St. Louis University, a * for the Eastern District
Missouri Benevolent Corporation * of Missouri.
Operating as St. Louis *
University Hospital and School *
of Medicine, *
*
Appellee. *
___________
Submitted: January 13, 1997
Filed: March 24, 1997
___________
Before RICHARD S. ARNOLD, Chief Judge, BEAM, Circuit Judge, and ALSOP,*
District Judge.
___________
RICHARD S. ARNOLD, Chief Judge.
Victorija Smith filed this action for employment discrimination
against St. Louis University under 42 U.S.C. §§ 2000e-1 to 2000e-17 and Mo.
Rev. Stat. § 213.010-.095. She alleged that the University had
discriminated against her on the
*
The Hon. Donald D. Alsop, United States District Judge for
the District of Minnesota, sitting by designation.
basis of sex by subjecting her to sexual harassment, and that it had
retaliated against her for complaining about the harassment. The District
Court granted summary judgment for the University on both claims. Smith
now appeals. Because the evidence she presented was sufficient to survive
summary judgment on both claims, we reverse and remand.
I.
Victorija Smith was an anesthesiology resident at St. Louis
University’s Hospital and Medical School from July 1991 to June 1994. She
presented evidence to the District Court, which we here view most favorably
to her, that the chairman of the Anesthesiology Department, John Schweiss,
repeatedly spoke derogatorily to her because of her gender. Smith contends
that the pervasiveness and severity of these comments created a hostile
work environment that altered the terms or conditions of her employment.
Smith, in her deposition, recounted numerous harassing or
discriminatory comments by Schweiss. For example, Schweiss regularly
referred to Smith and other female residents by their first name, or
without the title “Doctor,” while using “Doctor” and last names for male
residents. This began on the first day of orientation and continued in
front of her colleagues, patients, nurses, and guest lecturers. Smith took
this as a signal that Schweiss did not consider her deserving of
recognition as a fellow professional. She was told by other doctors that
Schweiss had told them that he had selected Smith in order to fill his
female quota, and thus to avoid charges of discrimination. These doctors
agreed, claiming that “you girls are here because it’s about time he hired
some good looking girls.” Schweiss and these doctors at various times told
Smith she was attractive, a “beautiful young lady,” and should consider
modeling. Smith also alleged that Schweiss
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referred on another occasion to her and another female resident as the
“anesthesia babes.”
Smith stated that Schweiss complained several times he was “stuck
with Vicki again” and “had to work with another female resident.” In the
operating room with Smith (as well as at lunch with her in the doctor’s
lounge), Schweiss asked her why she had gone into medicine rather than
nursing, or getting married. He also asked why she was so assertive, and
why she polished her nails. At another time, Schweiss opined to her that
women ought to be married and home nursing babies, and compared her
unfavorably to the wife of another doctor who stayed home to raise their
children. He further suggested, however, that Smith, because of her age
and medical training, would not be able to find a husband. Smith also
stated that Schweiss altered his rotation schedule so that he would be
around her, in order that he might subject her to additional ridicule, or,
as another doctor put it, “to get to” her.
Smith explained that she was hospitalized twice, in December 1993 and
March 1994, as a result of stress from the harassment by Schweiss. She
also testified in her deposition that she had suffered emotional trauma and
frequent crying because of the harassment.
Smith’s second claim alleged that Schweiss had given negative reviews
of her to two prospective employers, in retaliation for her complaining to
the University about his harassing behavior. Schweiss gave these reviews
after Smith’s residency had ended. Schweiss’s conversations with these
employers led them to question Smith about the nature of her relationship
with Schweiss at their interviews of her. One of them asked whether Smith
was considering legal action, after noting that Schweiss had not had very
nice things to say about her. Smith was not hired by those employers.
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Although the harassment allegedly began before the start of her
residency, Smith waited until November of 1993, during the final year of
her residency, to complain to the Dean of Student Affairs. Her complaint
was prompted by a letter of recommendation written by Schweiss that
referred to Smith’s marital status. Schweiss’s secretary showed Smith the
letter because she thought that its reference to Smith’s being single was
immaterial to her qualifications. Smith claims that her delay stemmed in
part from a fear of being fired, which would be “disastrous” to her
career.1 The Dean of Student Affairs met with Smith in January 1994, and
then referred Smith to the Dean of the Medical School, to whom Smith
detailed her complaints in February. This Dean met with Schweiss in March
1994 to discuss Smith’s complaints about him. The Dean then reported back
to Smith in April, telling her that she had admonished Schweiss not to
retaliate against Smith, and that she had requested that Schweiss monitor
the Department for discriminatory comments and prevent their recurrence.
The District Court granted the University’s motion for summary
judgment on Smith’s hostile-environment claim because it thought the
conduct was not sufficiently severe or pervasive. The Court held that the
absence of sexually explicit comments lessened the severity of the
harassment, and that the comments were not sufficiently frequent to
establish pervasiveness. The Court further explained that the comments
were not threatening, but rather were merely offensive and often not
gender-based. The Court also held that the conduct did not interfere with
Smith’s work performance, any emotional harm notwithstanding. The District
Court also held that the remedial action taken by the University
1
Schweiss admitted that he had considered firing Smith, but
said he decided not to because it would be “inappropriate and
unfair,” as it would “compromise[]” her ability to get a job.
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was both prompt and adequate, and thus created a defense to liability.
Because the District Court held that Smith had failed to establish either
severity or insufficient response, it held that Smith’s claim of a hostile
work environment must fail as a matter of law.
The District Court also granted summary judgment on Smith’s
retaliation claim. The Court explained that six months went by from when
Schweiss was admonished by the Dean of the Medical School to the time he
made his negative comments about Smith. The Court held this period to be
too long for Smith to establish a causal connection between the protected
Title VII activity and the adverse employment action. It separately held
that to the extent Smith’s claim involved post-employment retaliation,
Title VII did not provide a cause of action. Smith then took this appeal.
We review the evidence Smith has presented de novo to determine
whether there are genuine issues of material fact that would make summary
judgment inappropriate. We have explained before “that summary judgment
should seldom be used in employment-discrimination cases.” Crawford v.
Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994). The evidence Smith has
presented creates triable issues of fact both on the severity and
pervasiveness of the harassment and on the adequacy of the response the
University took to Smith’s complaints. Likewise, the evidence on
retaliation that Smith has adduced should be presented to a jury. We
address the two claims separately.
II.
Title VII has been interpreted to provide a cause of action for
discrimination “[w]hen the workplace is permeated with ‘discriminatory
intimidation, ridicule, and insult’ that is
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‘sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.’” Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993).2 The parties do not dispute that Smith
has shown the first three elements she must prove to succeed on her claim:
that Smith is in a protected group, that Smith was subjected to unwelcome
harassment, and that the harassment was based on sex. E.g., Hall v. Gus
Constr. Co.,
842 F.2d 1010, 1013 (8th Cir. 1988). The parties contest the
remaining two elements of proof: whether the harassment affected a term,
condition, or privilege of Smith&s employment, and whether the University
knew or should have known of the harassment, and failed to take proper
remedial action.
Ibid.
A.
The facts that Smith adduced would allow a reasonable jury to
conclude that the conditions of Smith’s employment were altered by the
harassment. While offensive comments alone may not create a hostile work
environment, Smith need not show that they “cause[d] a tangible
psychological injury” to succeed on her claim.
Harris, 510 U.S. at 22.
Even conduct that “does not seriously affect employees’ psychological well-
being, can and often will detract from employees’ job performance,
discourage employees from remaining on the job, or keep them from advancing
their careers.”
Ibid. Smith has introduced evidence that Schweiss
frequently and regularly made derogatory comments toward Smith and at least
one other female resident. Moreover, his comments commenced when Smith
began her residency and continued virtually throughout her time at
2
Because the standards governing Title VII actions guide
actions under the Missouri Human Rights Statute, Mo. Rev. Stat.
§ 213.010-.095, our consideration of Smith’s state-law claims is
subsumed under our consideration of Smith’s federal claims. See
Tart v. Hill Behan Lumber Co., 31 F.3d 668, 671 (8th Cir. 1994).
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the hospital. While Smith was not at all times working with Schweiss (her
rotation schedule caused her to work with other doctors as well), Smith
need not be exposed continually to the harassment to succeed on her claim;
Schweiss was, moreover, the head of the Department, and therefore more
omnipresent than a coworker might be. Furthermore, Smith presented
evidence that others in the Department relayed some of Schweiss’s comments
to her. Finally, Smith showed she had been hospitalized twice, the cause
of which remains in dispute, and had suffered depression because of the
alleged harassment. We think that, if Smith were given the opportunity,
a jury could reasonably find that Schweiss’s harassment was sufficiently
severe or pervasive to meet the Harris standard.
The District Court discounted the severity of the harassment because
it was not sexually explicit. This, however, does not accord with our
holding in Kopp v. Samaritan Health Sys., 13 F.3d 264 (8th Cir. 1993). In
Kopp, a doctor was abusive and threatening to many of the staff, but rarely
was the abuse couched in terms of sex or gender, and never was it sexually
explicit. The plaintiff, however, presented evidence that women were more
frequently the objects of the doctor&s derision. There we explained that
“[t]he predicate acts which support a hostile-environment sexual-harassment
claim need not be explicitly sexual in nature . . .. Rather, the key issue
is whether members of one sex are exposed to disadvantageous terms or
conditions of employment to which members of the other sex are not
exposed.”
Id. at 269 (citations and internal quotations omitted); see also
Hall, supra, 842 F.2d at 1014 (“Intimidation and hostility to women because
they are women can obviously result from conduct other than explicit sexual
advances.”). Here, many of Schweiss’s comments included gender-conscious
terms, and therefore could reasonably be believed to have been directed at
Smith because of her sex. The question that
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remains is whether the abuse rose to the level required by Harris to be
actionable under Title VII, a question that a jury should resolve.
B.
The District Court held that the University’s response to Smith’s
complaint was proper and adequate as a matter of law. Smith argues that
the University failed to take “prompt remedial action reasonably calculated
to end the harassment,” Callanan v. Runyun, 75 F.3d 1293, 1296 (8th Cir.
1996) (citations and internal quotations omitted), and therefore did not
respond properly. We conclude that a genuine issue of fact exists as to
whether the University failed to take proper remedial action.
The University’s response took four months from the time Smith
initially complained to when the Dean of the Medical School met with
Schweiss, and seven weeks from the time she detailed her complaints to the
Dean to the Dean-Schweiss meeting. The response was by no means immediate,
and Smith should have the opportunity to argue to a jury that the response
was not prompt enough (given all the circumstances), and thus made it not
“proper” for some reason (such as, as she notes, because Smith’s residency
ended in June).3 The University may offer a justification for the time it
took to conclude its response to Smith’s charges (such as the need to
interview many witnesses, or that the pertinent investigators were
3
Moreover, Smith may be able to demonstrate that the Medical
School had constructive notice (whether because Schweiss occupied
the top position within the Department, because the harassment
was obvious to everyone, or because of some other reason) before
Smith’s initial complaint provided actual notice. The District
Court should look to general “agency principles” in resolving
this question of fact. See Meritor Sav. Bank v. Vinson, 477 U.S.
57, 72 (1986).
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on vacation). These are questions of fact that should be addressed to a
jury.
Smith also contends that the University’s response was inadequate
because it was not “reasonably calculated to end the harassment.” Kopp,
supra, 13 F.3d at 269. The Dean told Schweiss to monitor himself and the
Department and report back on progress just before Smith ended her
residency. Smith’s allegations were that Schweiss himself was the
principal malefactor in the Department. Placing the alleged harasser in
charge of stopping the harassment may well have been inadequate, especially
if, as Smith alleges, the harassment did not stop and Schweiss subsequently
provided negative references to Smith’s potential employers. This, like
promptness, is a factual dispute to be resolved by a jury.
III.
The District Court granted summary judgment against Smith on her
second claim, that she was retaliated against for having complained about
sexual harassment. To succeed, Smith must show that she complained of
discrimination, that the University took adverse action against her, and
that this adverse action was causally related to her complaint. E.g.,
Marzec v. Marsh, 990 F.2d 393, 396 (8th Cir. 1993). There is no question
that Smith complained of discrimination, and a material issue of fact
exists as to whether the Hospital took action against her, if, as she
alleges, Schweiss commented negatively about her to prospective employers.
We think a factual issue also exists as to whether there is a causal
connection between the two events. Although the District Court held, and
the University argues, that Title VII does not provide a cause of action
for retaliation that took place after employment has concluded, the Supreme
Court has now held that Title VII’s protections from retaliation extend to
former employees,
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Robinson v. Shell Oil Co., 117 S. Ct. 843 (1997), and Smith may therefore
recover for retaliation taken after her residency ended.
The District Court held that too much time elapsed between Smith’s
complaint and the alleged retaliation to demonstrate the requisite causal
connection. Smith complained in November of 1993. The University spoke
with Schweiss in March 1994 to tell him to stop his harassment. Smith
presented evidence that Schweiss commented negatively about her in
September and October 1994 to her prospective employers, and thereby caused
them not to hire her.
Schweiss’s motivation for commenting negatively upon Smith is not
clear from the evidence. He could have done it because she complained of
his harassment, because she was female, or because he believed she had
only the qualifications he stated. Summary judgment here is particularly
inappropriate, given that Smith’s case will likely rely on inferences,
rather than direct evidence, of Schweiss&s motivation. See Crawford,
supra, 37 F.3d at 1341. The passage of time may simply reflect that
Schweiss no longer had an opportunity to retaliate against Smith at the
Hospital because she had concluded her residency. We think a jury should
decide whether Schweiss commented as he did about Smith because she had
reported his harassment to the Medical School.
The University argues that we have before doubted that a six-month
period between a protected action and the alleged retaliation could
establish a prima facie case of retaliation. See Rath v. Selection
Research, Inc., 978 F.2d 1087, 1090 (8th Cir. 1992). In Rath, however, the
plaintiff presented only the evidence of coincidental timing between his
complaint about a proposed pension-plan change and his discharge, and the
employer countered with evidence that the discharged plaintiff had
performed his job unsatisfactorily. This case comes to us under different
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circumstances, as the University has not adduced evidence that Schweiss’s
comments characterized accurately Smith’s performance as a resident. The
passage of time between events does not by itself foreclose a claim of
retaliation; rather, it weakens the inference of retaliation that arises
when a retaliatory act occurs shortly after a complaint. Her evidence is
thus more substantial than a plaintiff who shows only coincidental timing
rebutted by legitimate justification, and Smith therefore should be allowed
to present her evidence to a jury.
The University also argues that negative references are not adverse
job actions. We think that actions short of termination may constitute
adverse actions within the meaning of the statute. See, e.g., Charlton v.
Paramus Bd. of Educ., 25 F.3d 194, 200 (3d Cir.) (“[P]ost-employment
blacklisting is sometimes more damaging than on-the-job discrimination .
. ..”), cert. denied,
115 S. Ct. 590 (1994). If Schweiss provided negative
references to Smith’s potential employers, as she contends, and she
demonstrates that he did so because she had complained about his
harassment, then a jury could reasonably conclude that the University was
liable under Title VII for retaliation.
IV.
Smith presented sufficient evidence in the District Court to create
a triable issue of whether St. Louis University subjected her to a hostile
work environment. She has also demonstrated that genuine issues of
material fact exist that are appropriately to be decided by a jury as to
whether the University retaliated against her for complaining.
Furthermore, Smith may make a claim for retaliation for events that
occurred after she ceased to be employed by the University. The judgment
of the District Court is
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reversed, and the cause remanded for further proceedings consistent with
this opinion.
It is so ordered.
ALSOP, District Judge, dissenting in part and concurring in part.
Because I believe the District Court correctly granted summary
judgment to the University on Smith’s sexual harassment claim by finding
that the University took adequate remedial measures after Dr. Smith
reported Dr. Schweiss’s alleged harassment, I respectfully dissent. I
concur, however, with the majority’s decision to reverse and remand on
Smith’s retaliation claim.
“Once an employer becomes aware of sexual harassment, it must
promptly take remedial action which is reasonably calculated to end the
harassment.” Kopp v. Samaritan Health Sys., Inc., 13 F.3d 264, 269 (8th
Cir. 1993). Appropriate remedial action may mean different things under
different circumstances. “Just as in conventional tort law a potential
injurer is required to take more care, other things being equal, to prevent
catastrophic accidents than to prevent minor ones, so an employer is
required to take more care, other things being equal, to protect its female
employees from serious sexual harassment than to protect them from trivial
harassment.” Baskerville v. Culligan Int’l Co.,
50 F.3d 428, 432 (7th Cir.
1995).
The District Court concluded that the University’s response to Dr.
Smith’s complaint was appropriate under the circumstances of this case.
I agree. The facts regarding the University’s response are
straightforward, and are not, as suggested by the majority, disputed by the
parties. The evidence shows Dr. Smith first reported Dr. Schweiss’s
behavior on or about December 1, 1993 to
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the Dean of Student Affairs, Dr. Mootz. Dr. Mootz met with Dr. Smith in
January of 1994, and then referred Dr. Smith to Dean Monteleone, the Acting
Dean of the Medical School. Dean Monteleone met with Dr. Smith on February
3, 1994. On March 22, Dean Monteleone met with Dr. Schweiss to discuss Dr.
Smith’s allegations. Dean Monteleone also investigated the complaint by
meeting with other members of the anesthesiology department. On April 21,
Dean Monteleone met with Dr. Smith again. During this final meeting, Dr.
Smith declined Dean Monteleone’s offer to file a more formal complaint and
appeared pleased by the actions taken by Dean Monteleone on her behalf.
In response to Dr. Smith’s complaint, Dean Monteleone took steps to revise
the procedure for handling sexual harassment procedures, told Dr. Schweiss
he was not to retaliate against Dr. Smith, and instituted training
regarding inappropriate language in letters of reference written on behalf
of residents. Each of these steps were proper and were calculated to end
the harassment alleged to have been experienced by Dr. Smith. The record
shows that St. Louis University did more than simply place “the harasser
in charge of stopping the harassment” as suggested by the majority.
Summary judgment in employment discrimination cases, as in all cases,
is appropriate when an examination of the evidence in a light most
favorable to the non-moving part reveals no genuine issues of material fact
and the moving party is entitled to judgment as a matter of law. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24,
106 S. Ct. 2548, 2552-53,
91 L. Ed. 2d 265 (1986), Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247,
106 S. Ct. 2505, 2511,
91 L. Ed. 2d 202 (1986). As the Supreme Court
explained in Anderson, “summary judgment should be granted where the
evidence is such that it would require a directed verdict for the moving
party.” 477 U.S. at 251 (citations omitted). To say that summary judgment
should seldom be used in employment discrimination cases
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does not further a district court’s analysis of whether granting summary
judgment is suitable in a particular case. Given the volume of employment
discrimination cases filed, the myriad causes of action alleged in each,
and the fact that virtually each such case generates a motion for summary
judgment, it is essential that courts employ Rule 56, when appropriate, to
dismiss claims that are unsupported by law or fact.
Finally, the facts of this case do not parallel the egregious facts
of the Kopp decision referred to by the majority. Dr. Smith continued with
her residency program without any further abuse, even though her
interaction with Dr. Schweiss did not cease. There was also no evidence
in this case that the University knew of prior instances of alleged
harassment by Dr. Schweiss. Dean Monteleone treated Dr. Smith’s complaint
seriously and treated Dr. Smith respectfully. The steps taken by the
University were prompt and adequate responses to Dr. Smith’s claim.
Accordingly, I believe the University is entitled to summary judgment on
Dr. Smith’s sexual harassment claim, and I respectfully dissent.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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