Filed: Apr. 10, 1998
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 97-3441 _ Vicki Cross, * * Plaintiff-Appellee, * Appeal from the United States * District Court for the Western v. * District of Missouri * Emanuel Cleaver II, et al. * * Defendants-Appellants. * _ Submitted: March 10, 1998 Filed: April 10, 1998 _ * Before MCMILLIAN and FAGG, Circuit Judges, and BENNETT, District Judge. _ * The HONORABLE MARK W. BENNETT, United States District Judge for the Northern District of Iowa, sitting by designat
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 97-3441 _ Vicki Cross, * * Plaintiff-Appellee, * Appeal from the United States * District Court for the Western v. * District of Missouri * Emanuel Cleaver II, et al. * * Defendants-Appellants. * _ Submitted: March 10, 1998 Filed: April 10, 1998 _ * Before MCMILLIAN and FAGG, Circuit Judges, and BENNETT, District Judge. _ * The HONORABLE MARK W. BENNETT, United States District Judge for the Northern District of Iowa, sitting by designati..
More
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
______________
No. 97-3441
______________
Vicki Cross, *
*
Plaintiff-Appellee, * Appeal from the United States
* District Court for the Western
v. * District of Missouri
*
Emanuel Cleaver II, et al. *
*
Defendants-Appellants. *
___________
Submitted: March 10, 1998
Filed: April 10, 1998
___________
*
Before MCMILLIAN and FAGG, Circuit Judges, and BENNETT, District Judge.
___________
*
The HONORABLE MARK W. BENNETT, United States District Judge for the
Northern District of Iowa, sitting by designation.
TABLE OF CONTENTS
I. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. Factual Background . . . . . . . . . . . . . . . . . . . . 4
B. Procedural Background . . . . . . . . . . . . . . . . . . . 7
II. ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
A. Applicable Standards . . . . . . . . . . . . . . . . . . . 11
1. Judgment as a matter of law . . . . . . . . . . . . 11
2. Improper jury instructions . . . . . . . . . . . . . 13
B. Preservation Of Errors . . . . . . . . . . . . . . . . . . 17
1. The objection to the liability standard . . . . . . 17
2. The objection to the combined instruction . . . . . 19
C. Employer Liability For Retaliation . . . . . . . . . . . . 20
1. Retaliation under Title VII . . . . . . . . . . . . 22
2. Standards for employer liability for harassment . . 23
3. The nature of retaliatory action and the standard
for employer liability . . . . . . . . . . . . . . . 26
D. Combined Retaliation Instruction . . . . . . . . . . . . . 29
1. Retaliation under Missouri law . . . . . . . . . . . 30
2. Cross’s state-law retaliation claim . . . . . . . . 33
III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 34
BENNETT, District Judge.
In this appeal, we are asked to consider the standard for employer
liability for retaliation in violation of Title VII, 42 U.S.C. § 2000e et
seq., a question this court has never directly addressed. Members of a
city police board of commissioners appeal the denial of their post-trial
motion for judgment as a matter of law on a female police
2
officer’s claim of retaliation by the chief of police and other members of
the police department after the police officer filed a charge of sexual
1
harassment. The board members assert that the trial judge erred in denying
their post-trial motion, which asserted that the jury’s verdict was against
the weight of the evidence, because there was no evidence adduced at trial
that the board either took part in retaliatory actions or that the board
“knew or should have known” of any retaliatory actions by members of the
police department. The board members argue that this “knew or should have
known” standard applies by drawing an analogy to the standard for employer
liability in hostile environment cases. The police officer counters that
the board members failed to preserve this error by timely objection, but
that, even if they did, the correct standard for employer liability on a
Title VII retaliation claim is imputed liability, as in quid pro quo
harassment cases. Case law demonstrates the currency of both standards
among the federal courts.
Additionally, the board members contend that the trial judge erred by
submitting the police officer’s separate retaliation claims under Title VII
and the Missouri Human Rights Act (MHRA) to the jury in the same
instruction. They argue that because of this error, once the trial judge
ruled that sovereign immunity barred the retaliation claim under the MHRA,
the court could not determine under which law—state or federal—the jury had
made its award of damages for retaliation. The police officer counters that
the board members also failed to preserve this error, but that, in any
event, the verdict in her favor should stand, because in this case, the
elements of her
1
The HONORABLE JOHN T. MAUGHMER, CHIEF UNITED STATES
MAGISTRATE JUDGE, who tried the case pursuant to 28 U.S.C. § 636.
3
state and federal retaliation claims are identical.
We affirm.
I. BACKGROUND
A. Factual Background
The facts pertinent to this appeal are the following. Plaintiff-
appellee Vicki Cross has been a police officer with the Kansas City,
Missouri, Police Department (KCMPD or the Department) since April of 1990.
The KCMPD does not exist as an entity that can be sued, and the parties
agree that Cross’s employer was and is in fact the Board of Police
Commissioners, the governing body of the KCMPD and the entity that has the
exclusive management and control of the Department. Individual past and
present members of the Board are the defendant-appellants here. Although
the Board is the governing body and Cross’s employer, the Chief of Police
of the KCMPD is responsible for the actions of the Department, attends Board
meetings, and is required to provide a disciplinary report to the Board.
At the times pertinent to Cross’s lawsuit, the Chief of Police was Steven
Bishop. Although Bishop was originally a defendant below, in his official
capacity, the current Chief of Police, Floyd O. Bartch, was substituted as
a defendant just prior to trial.
While working for the Department, Cross was assigned, at various times,
to three out of five of its patrol divisions and to the Vice Unit. At the
time of the events giving rise to her claims, she was assigned to the North
Patrol Division. In 1991 or 1992, she met and began dating another police
officer, Dan Garrett. Eventually, the relationship deteriorated to the
point that, in February of 1994, Cross asked a mutual friend, a police
sergeant, to tell Garrett to leave Cross alone. However, the sergeant told
Cross that he believed that Garrett’s conduct, as alleged by Cross,
constituted sexual harassment in
4
violation of departmental policy. The sergeant therefore told Cross to file
a written complaint with the Department and the sergeant also prepared a
companion memorandum. Cross’s complaint was filed on February 24, 1994.
As a result of Cross’s complaint and the memorandum from the sergeant,
the Department began a “miscellaneous” investigation, which included taking
statements from Cross, Garrett, and others. On March 23, 1994, a Deputy
Chief of the Department sent Garrett a letter instructing him to stay away
from Cross until the conclusion of the investigation. Two days later,
Garrett retired from the Department.
Garrett was a friend and long-time co-worker of then Chief of Police
Steven Bishop. Bishop testified that he learned of Cross’s complaint
against Garrett on February 25, 1994, the day after the complaint was filed.
Garrett and Bishop discussed the complaint on February 28, 1994, at which
time Garrett testified that Bishop said he would “get the bitch,” referring
to Cross. Bishop denies making that statement, but does not deny that he
discussed the sexual harassment complaint with Garrett on February 28, 1994.
Cross offered sufficient evidence from which a jury could find that
retaliation against her began almost immediately after her complaint of
sexual harassment was filed. That retaliation consisted of investigations,
suspensions, and transfers of Cross. More specifically, Cross presented
evidence that in February of 1994, Bishop encouraged the Gladstone Police
Department—another municipal police department with jurisdiction adjacent
to the North Patrol Division of the KCMPD—to start an investigation of
alleged sexual misconduct by Cross and a Gladstone Police Officer, Kenny
Buck, whom Cross had started dating. The Gladstone Police Department’s
investigation was eventually dismissed, because investigators found no merit
to the charges of sexual misconduct by Cross and Buck. Cross also presented
evidence that
5
in April of 1994 she was transferred from the North Patrol Division, an
assignment that was personally beneficial to her, to the East Patrol
Division, a less convenient assignment. Also in April of 1994, apparently
for the first time, complaints by Cross’s ex-husband about divorce-related
matters were “written up,” instead of disregarded as involving only personal
matters, not police work. All but three of Cross’s ex-husband’s complaints
were deemed inappropriate for any investigation, and Cross’s ex-husband
recanted one of those three.
However, investigations of Cross were instigated concerning allegations
that she had “participated in a plan or scheme to have a traffic ticket
fixed” and that she had seen cocaine in a house, but had done nothing about
it. Although Cross was suspended for twelve days as the result of the
ticket-fixing charge, the Grievance Committee found that Cross had not
participated in a scheme to “fix” the ticket, but had exhibited poor judgment
in passing along money and the ticket without definitely knowing their
purpose. Although the committee recommended that other allegations be
stricken from her record as unsubstantiated, Chief Bishop refused to correct
Cross’s records. At about the same time, Cross was disciplined for missing
a court appearance, even though, according to Cross, the desk sergeant
admitted he should have filed a continuance.
The most substantial of the allegedly retaliatory actions, however, was
Cross’s suspension without pay for four months during 1995 pending
investigation of charges by her ex-husband that she had committed a
“burglary” when Cross and the ex-husband’s former girlfriend entered his
residence and removed a tape player. The Department instituted a criminal
investigation, but when the city and county prosecutors both declined to
prosecute the incident as either a “burglary” or a “trespass,” the
investigation concluded. Despite the fact that the internal criminal
investigation
6
apparently lasted only days, Cross was not returned to work for some months
more. Instead, she remained on indefinite suspension pending investigation
of other charges, including an allegation that she was working as a stripper,
a charge dropped as unfounded and untrue after investigation.
Cross took many more days of sick leave during 1994 and 1995 than she
had at any other time during her career with the KCMPD. She attributed the
additional leave to stress. In early 1995, Cross expressed doubt that she
was mentally or physically fit to do her job. A Department psychologist
eventually reviewed her records and certified her fit for duty.
Cross was reinstated with pay and allowances on July 18, 1995. Prior
to her reinstatement, however, Cross filed the present lawsuit on June 14,
1995. After this suit was filed, no disciplinary actions were taken against
Cross and, about a month-and-a-half prior to trial, Cross was transferred
back to the North Patrol Division.
B. Procedural Background
As mentioned just above, Cross filed the present lawsuit on June 14,
1995. She named as defendants the Department, Chief Bishop, in his official
capacity, and persons who were or had been members of the Board, also in
their official capacities. Some of the members of the Board were dismissed
from the action, because they were not members of the Board at the time suit
was filed, and the Department was dismissed on the basis that it was not an
entity that could sue or be sued. Cross’s complaint, as later amended on
November 7, 1995, alleged sexual harassment in violation of Title VII in
Count I; retaliation in violation of Title VII and the MHRA in Count II; and
violation of civil rights pursuant to 42 U.S.C. § 1983 in Count III. Cross
dismissed Count I prior to trial. Also prior to trial, the court substituted
certain parties, among them Floyd O.
7
Bartch, as Chief of Police, in his official capacity, for former Chief
Bishop.
Jury trial began on November 4, 1996, and concluded on November 7,
1996. At the close of Cross’s case, the Board Members moved for judgment as
a matter of law on Cross’s retaliation claims in Count II on the ground,
inter alia, that Cross had failed to show a submissible case on the element
“[t]hat these Defendants knew or should have known of the harassment and
failed to take immediate and appropriate corrective action.” Defendant’s
Motion for Judgment As A Matter Of Law At The Close Of Plaintiff’s Evidence,
pp. 2-3. The defendants’ brief in support of that motion directed the court
to their trial brief for arguments in support of judgment on the retaliation
claim. Defendants’ Suggestions In Support Of Motion For Judgment As A Matter
Of Law, p. 2. The trial brief, however, offers no argument on the standard
for employer liability in a retaliation case. See Trial Brief of Defendants,
pp. 5-7. Furthermore, the extent of oral argument in support of this
standard was an assertion that “there’s been no evidence to establish the
third element [of Count II], that these defendants knew, or should have
known, of the harassment and failed to take immediate and appropriate
corrective action.” Transcript, p. 479-80. This first motion for judgment
as a matter of law was denied.
At the close of all evidence on November 7, 1996, the defendants again
moved for judgment as a matter of law. As one ground for judgment on Cross’s
retaliation claim, the defendants once again asserted that no evidence had
been submitted that the defendants knew or should have known of the
harassment. However, the proffered no oral argument whatsoever in support
of that contention. See Transcript, pp. 608-30. The court denied the second
motion for judgment as a matter of law, just as it had denied the first.
However, the court did dismiss Count III as to the Board Members, leaving
only Bartch, in his official capacity, as a defendant on that claim.
8
The jury found in favor of Cross on her retaliation claim under state
and federal law in Count II and awarded $70,000 in compensatory damages and
$20,000 in punitive damages against the Board Members. On Count III, the
civil rights claim, the jury awarded compensatory damages of $30,000 against
Bartch.
On November 15, 1996, the defendants renewed their motion for judgment
as a matter of law, or, in the alternative, moved for a new trial. This
time, in pertinent part, the defendants asserted that the verdict on the
2
retaliation claim was “against the weight of the evidence”; that it was
improper to submit the state and federal retaliation claims in a single
instruction; that the Board Members were entitled to sovereign immunity on
the state-law retaliation claim; and that punitive damages were permitted on
the retaliation claim only under the MHRA, not Title VII, and hence the
punitive damages award on the retaliation claim was also barred by sovereign
immunity. The defendants did not specifically reiterate their assertion that
there was no evidence that they knew or should have known of the retaliation,
but failed to take immediate and appropriate corrective action. Nor did the
defendants argue any basis in their supporting brief for the “knew or should
have known” standard for employer liability on a Title VII retaliation claim.
Similarly, they did not explain in their brief in what respect the elements
of a Title VII retaliation claim differed from a retaliation claim under the
MHRA. Instead, the Board Members’ brief in support of their post-trial
motion for judgment as a matter of law concentrated on the sovereign immunity
issues. Cross also filed a post-trial motion seeking equitable relief,
attorneys’ fees and costs, and further relief.
On July 31, 1997, the trial judge ruled on the parties’ post-trial
motions. The
2
The Board Members also asserted that the verdict on the retaliation claim was
excessive, but they do not press that point on appeal.
9
court found that submitting the retaliation claims under state and federal
law in one instruction was proper. First, the court found that the Board
Members did not object to the combined verdict director during trial as
required by FED. R. CIV. P. 51. Second, the court found the post-trial
objection groundless, because the requirements for finding a violation under
state and federal law were identical. The court also found that the jury’s
verdict was supported by the evidence, although the court did not
specifically address any contention that the verdict was rendered on the
wrong standard of employer liability.
The trial court did grant the Board Members some relief, however. The
court found that sovereign immunity barred the retaliation claim under the
MHRA. As a consequence, the court took away the jury’s award of punitive
damages on the retaliation claim, because that award was only pursuant to the
MHRA. The court also took away the jury’s award of damages on Count III, the
civil rights claim, on the ground that relief on an “official capacity” suit
pursuant to 42 U.S.C. § 1983 is limited to an injunction and no injunctive
relief was possible in this case, since Chief Bishop was no longer employed
by the Department. Thus, the court dismissed the civil rights count in its
entirety. The court also granted parts of Cross’s post-trial motion,
awarding her attorneys’ fees and costs, but denying her requests for other
equitable relief.
The Board Members now appeal the portions of the July 31, 1997, ruling
relating to the submission of the two retaliation claims in a single
instruction and the trial judge’s conclusion that there was evidence to
support the jury’s verdict on the retaliation claims, over the Board members’
objections that there was no evidence that they participated in the
retaliation or that they knew or should have known of the retaliation. Cross
does not appeal any part of the trial court’s ruling on either her own or the
defendants’ post-trial motion.
10
II. ANALYSIS
A. Applicable Standards
1. Judgment as a matter of law
This court reviews de novo the denial of a motion for judgment as a
matter of law (JAML) pursuant to FED. R. CIV. P. 50, applying the same
standard as the trial court. See Stockmen’s Livestock Mkt., Inc. v. Norwest
Bank of Sioux City, N.A., 135 F.3d 1236, 1240 (8th Cir. 1998); Equal
Employment Opportunity Comm’n v. HBE Corp.,
135 F.3d 543, 554 (8th Cir.
1998); Meisner v. United States,
133 F.3d 654, 656 (8th Cir. 1998); Deneen
v. Northwest Airlines, Inc.,
132 F.3d 431, 435 (8th Cir. 1998); Lamb Eng’g
& Constr. Co. v. Nebraska Pub. Power Dist.,
103 F.3d 1422, 1430 (8th Cir.
1997). When the motion seeks judgment on the ground of insufficiency of the
evidence, the question is a legal one. Hathaway v. Runyon,
132 F.3d 1214,
1220 (8th Cir. 1997); Jarvis v. Sauer Sundstrand Co.,
116 F.3d 321, 324 (8th
Cir. 1997). A jury verdict must be affirmed “‘unless, viewing the evidence
in the light most favorable to the prevailing party, we conclude that a
reasonable jury could have not found for that party.’” Stockmen’s Livestock
Mkt.,
Inc., 135 F.3d at 1240-41 (quoting Chicago Title Ins. Co. v. Resolution
Trust Corp.,
53 F.3d 899, 904 (8th Cir. 1995)); HBE
Corp., 135 F.3d at 554
(“Judgment as a matter of law is appropriate only if no reasonable jury could
find for the non-moving party when viewing the evidence in its favor with the
benefit of all reasonable inferences,” citing FED. R. CIV. P. 50(a), and
Ryther v. KARE 11,
108 F.3d 832, 844 (8th Cir. 1997) (en banc), cert. denied,
___ U.S. ___,
117 S. Ct. 2510 (1997)). Thus, the court must ask if
sufficient evidence was produced to support a reasonable finding on each of
the elements of the plaintiff’s claim or claims. HBE
Corp., 135 F.3d at 554;
Deneen, 132 F.3d at 435. This means that the court must assume as proven all
facts that the nonmoving party’s evidence tended to show, give
11
the nonmovant the benefit of all reasonable inferences, and assume that all
conflicts in the evidence were resolved in the nonmovant’s favor. Hathaway,
132 F.3d at 1220. To put it another way, JAML “‘is in order only where the
evidence points all one way and is susceptible of no reasonable inferences
sustaining the position of the nonmoving party.’”
Meisner, 133 F.3d at 656
(quoting Giordano v. Lee,
434 F.2d 1227, 1231 (8th Cir. 1970), cert. denied,
403 U.S. 931 (1971));
Hathaway, 132 F.3d at 1220 (JAML is proper “‘[o]nly
when there is a complete absence of probative facts to support the conclusion
reached’ so that no reasonable jury could have found for the nonmoving
3
party,” quoting Ryther, 108 F.3d at 845).
Furthermore, where a party fails to make a timely and adequate
objection before the trial court to a matter subsequently raised on appeal,
this court will review the matter only for “plain error.” Rush v. Smith, 56
F.3d 918, 922 (8th Cir. 1995) (en banc) (where a party failed to lodge a
timely objection to the trial judge’s comments,
3
The Board Members moved, in the alternative, for a new trial. As this court
recently explained,
We review the district court’s denial of [a] motion for a new
trial for an abuse of discretion. Keenan v. Computer Assoc.
Int’l, Inc., 13 F.3d 1266, 1269 (8th Cir. 1994). Where, as
here, “the basis of the motion for a new trial is that the
jury’s verdict is against the weight of the evidence, the
district court’s denial of the motion ‘is virtually unassailable
on appeal.’” Id. (quoting Peterson v. General Motors
Corp., 904 F.2d 436, 439-40 (8th Cir. 1990)). “The key
question is whether a new trial should have been granted to
avoid a miscarriage of justice.” Id.
Keeper v. King,
130 F.3d 1309, 1314 (8th Cir. 1997); accord Schultz v. McDonnell
Douglas Corp.,
105 F.3d 1258, 1259 (8th Cir. 1997) (“We review the denial of a
motion for a new trial under an abuse of discretion standard,” citing McKnight v.
Johnson Controls, Inc.,
36 F.3d 1396, 1400 (8th Cir. 1994)), cert. denied, ___ U.S.
___,
118 S. Ct. 56 (1997).
12
this court reviewed only for “plain error”), cert. denied, ___ U.S. ___, 116
S. Ct. 409 (1995); accord Dupre v. Fru-Con Eng’g,
Inc., 112 F.3d at 329, 336
(8th Cir. 1997) (observing that “[o]ne of the most fundamental principles in
the law of evidence is that in order to challenge a trial court’s exclusion
of evidence, an attorney must preserve the issue for appeal by making an
offer of proof,” and where the offer is unrecorded, review of the exclusion
of evidence is for “plain error”); Yannacopoulos v. General Dynamics Corp.,
75 F.3d 1298, 1304 (8th Cir. 1996) (“When a party waits until the end of a
case to complain of juror misconduct, . . . the objection is waived, . . .
and we will reverse the District Court only if it has committed plain error”;
citations omitted); McKeel v. City of Pine Bluff,
73 F.3d 207, 211 (8th Cir.
1996) (in order to preserve the error of exclusion of evidence, pursuant to
FED. R. EVID. 103, the party objecting must lodge an objection at trial, and
failure to object limits the appellate court to “plain error” review).
“Under plain error review, an error not identified by a contemporaneous
objection is grounds for reversal only if the error prejudices the
substantial rights of a party and would result in a miscarriage of justice
if left uncorrected.”
Rush, 56 F.3d at 922 (citing Fleming v. Harris,
39
F.3d 905, 908 (8th Cir. 1994)); accord
Dupre, 112 F.3d at 337;
Yannacopoulos,
75 F.3d at 1304 (“Plain error is error which has a serious effect on the
fairness of the proceedings.”).
2. Improper jury instructions
As the second ground for appeal of denial of their motion for JAML, or
in the alternative, motion for new trial, the Board Members object to the
instructions given by the trial court on the retaliation claims. The trial
court has “broad discretion” in instructing the jury. Ryther v. KARE 11, 108
F.3d 832, 846 (8th Cir. 1997) (en banc) (citing Hastings v. Boston Mut. Life
Ins. Co.,
975 F.2d 506, 510 (8th Cir. 1992)), cert. denied, ___ U.S. ___,
117
S. Ct. 2510 (1997). Instructions do not need to be
13
technically perfect or even a model of clarity. Id. Rather, “[i]n reviewing
jury instructions, this court must ‘determine whether the instruction[s]
fairly and adequately state[] the applicable law when reading the
instructions as a whole.’” Stockmen’s Livestock Mkt.,
Inc., 135 F.3d at
1245-46 (quoting First Dakota Nat’l Bank v. St. Paul Fire & Marine Ins. Co.,
2 F.3d 801, 813 (8th Cir. 1993)); Dupre v. Fru-Con Eng’g, Inc.,
112 F.3d 329,
335 (8th Cir. 1997) (“‘[W]hen reviewing a claim of instructional error, we
consider the instructions in their entirety and determine whether, when read
as a whole, the charge fairly and adequately submits the issues to the
jury,’” quoting Laubach v. Otis Elevator Co.,
37 F.3d 427, 429 (8th Cir.
1994)); Slathar v. Sather Trucking Corp.,
78 F.3d 415, 418 (8th Cir.)
(stating this standard of review), cert. denied, ___ U.S. ___,
117 S. Ct.
179 (1996). Furthermore, before an appellant is entitled to any relief on
the ground that the trial court erred in giving or not giving an instruction,
the error must be prejudicial. Id.;
Dupre, 112 F.3d at 336; Walker v. AT&T
Techs.,
995 F.2d 846, 849 (8th Cir. 1993).
Rule 51 of the Federal Rules of Civil Procedure specifically provides
that “[n]o party may assign as error the giving or failure to give an
instruction unless that party objects thereto before the jury retires to
consider its verdict, stating distinctly the matter objected to and the
grounds of the objection.” FED. R. CIV. P. 51. As this court has explained,
“[T]he purpose of Rule 51 is to compel litigants to
afford the trial court an opportunity to cure [a]
defective instruction and to prevent the litigants
from ensuring a new trial in the event of an adverse
verdict by covertly relying on the error.” Missouri
Pac. R.R. v. Star City Gravel Co., 592 F.2d 455, 459
(8th Cir. 1979), quoted in Barton v. Columbia Mut.
Cas. Ins. Co., 930 F.2d 1337, 1341 (8th Cir. 1991).
Rule 51 requires a litigant to state distinctly the
specific
14
objections to a jury instruction before the jury
retires; otherwise, a litigant waives the right on
appeal to object to a jury instruction on those
grounds, see Commercial Property Invs. Inc. v. Quality
Inns Int’l, Inc., 61 F.3d 639, 643 (8th Cir. 1995),
and “we will reverse only if the instruction amounts
to plain error,” see Rolscreen Co. v. Pella Prods., 64
F.3d 1202, 1211 (8th Cir. 1995).
Dupre, 112 F.3d at 333; accord Westcott v. Crinklaw,
133 F.3d 658, ___ (8th
Cir. 1998) (“[Rule 51] requires specific objections before the jury retires
so that the district court may correct errors and avoid the need for a new
trial.”);
Ryther, 108 F.3d at 845 (“‘In order to preserve an objection [to
jury instructions] for appeal, ‘[t]he grounds of the objection must be
specifically stated, and the error claimed on appeal must be based on the
same grounds stated in the objection,’” quoting Starks v. Rent-A-Center,
58
F.3d 358, 361 (8th Cir. 1995)); Doyne v. Union Elec. Co.,
953 F.2d 447, 450
(8th Cir. 1992) (also observing that Rule 51 is intended to require litigants
to afford the trial court the first opportunity to cure defective
instructions and to prevent parties from preparing a covert ground for
appeal).
Not only is an objection required, but a “general objection [is]
insufficient to preserve the specific objections to the instruction” that the
appellant may subsequently seek to raise on appeal. Id. (citing Denniston
v. Burlington N., Inc.,
726 F.2d 391, 393 (8th Cir. 1984)). Rather,
“‘[o]bjections must “bring into focus the precise nature of the alleged
error.”’” Westcott, 133 F.3d at ___ (quoting Jones Truck Lines, Inc. v. Full
Serv. Leasing Corp.,
83 F.3d 253, 256-57 (8th Cir. 1996), in turn quoting
Palmer v. Hoffman,
318 U.S. 109, 119 (1943)). “Our law on this subject is
crystal clear: to preserve an argument concerning a jury instruction for
appellate review, a party must state distinctly the matter objected to and
the grounds for the objection on the record.”
Dupre, 112 F.3d at 334 (citing
cases). In this circuit, making objections “on the
15
record” “entails not only stating the objection, but also stating the
specific grounds for that objection.” Id. It is therefore insufficient for
counsel merely to rest on indefinite objections to jury instructions without
stating on the record the specific grounds therefor and failure to take the
opportunity to make a proper record waives arguments that might subsequently
be raised on appeal.
Id.
Where an appellant has failed to make an adequate objection below to
preserve the purported error in instructions—as with failure to object to
other purported errors by the trial court—this court reviews only for “plain
error.” Westcott, 133 F.3d at ___;
Dupre, 112 F.3d at 334;
Ryther, 108 F.3d
at 847 (objections to instructions that have been waived by lack of timely
assertion are reviewed only for “plain error”). Again, under plain error
review we reverse “‘only if the error prejudices the substantial rights of
a party and would result in a miscarriage of justice if left uncorrected.’”
Id. (quoting Rush v. Smith,
56 F.3d 918, 922 (8th Cir.) (en banc), cert.
denied, ___ U.S. ___,
116 S. Ct. 409 (1995));
Dupre, 112 F.3d at 334 (also
citing Rush);
Ryther, 108 F.3d at 847 (“plain error” review “is ‘narrow and
confined to the exceptional case where error has seriously affected the
fairness, integrity, or public reputation of the judicial proceedings,’”
quoting Des Moines Bd. of Water Works Trustees v. Alvord,
706 F.2d 820, 824
(8th Cir. 1983)); Christopherson v. Deere & Co.,
941 F.2d 692, 694 (8th Cir.
1991) (“‘[A]ny plain error exception to compliance with Rule 51 “is confined
to the exceptional case where error has seriously affected the fairness,
integrity or public reputation of judicial proceedings,”’” quoting Smith v.
Honeywell, Inc.,
735 F.2d 1067, 1069 (8th Cir.), cert. denied,
469 U.S. 1077
(1984), in turn quoting Rowe Int’l v. J-B Enterprises,
647 F.2d 830, 835 (8th
Cir. 1981), and also stating that the error must have “‘contribute[d] to a
miscarriage of justice,’” quoting United States v. Young,
470 U.S. 1, 16
(1985)).
16
B. Preservation Of Errors
The Board Members appeal on two grounds. First, they contend that the
the trial court improperly denied them JAML on Cross’s Title VII retaliation
claim, and the jury’s verdict on that claim was unsupported by the evidence,
because there was no evidence that these defendants either took retaliatory
action against Cross or knew or should have known of retaliatory actions
against Cross. Second, they contend that the trial court erred in
instructing the jury on Cross’s state and federal retaliation claims in a
single instruction, instead of setting forth each claim in a separate
instruction. Cross contends, in the first instance, that the Board Members
failed to preserve either of their grounds for appeal with timely and
adequate objections before the trial court. We will consider in turn whether
the Board Members have preserved each of their issues for appeal.
1. The objection to the liability standard
The Board Members assert that they raised the issue of the “knew or
should have known” standard in their motion for JAML at the close of
plaintiff’s evidence, and again in their motion for JAML at the close of all
evidence. Additionally, they claim that they specifically argued for this
standard in oral arguments on each of these motions. Furthermore, they
contend that their arguments to the trial court that the agency instruction
on the retaliation claim was overbroad, because it would tend to cause the
jury to believe that the defendants would be responsible for rumors, was
“essentially an argument that the ‘knew or should have known’ standard should
4
apply.” Reply Brief of Appellants, p. 5. The Board Members thus contend
that they presented
4
The court finds this last argument unconvincing at best, because it would require
an incredible stretch of language and conception to make an argument that an
instruction is “overbroad,” because it would tend to cause the jury to believe that the
defendants would be responsible for rumors, into an argument that the standard
applicable to employer liability for retaliation in violation of Title VII was that the
employer “knew or should have known” of the retaliation. Nonetheless, there are more
fundamental flaws to the Board Members’ arguments upon which this court’s
conclusions are based.
17
to the trial court the issue of the appropriate standard for employer
liability on a Title VII retaliation claim, but their contentions were
overruled.
Although the Board Members mentioned as a ground for JAML at the close
of Cross’s case and again at the close of all of the evidence that Cross had
failed to present a submissible case on the element “[t]hat these Defendants
knew or should have known of the harassment and failed to take immediate and
appropriate corrective action,” they plainly failed to reiterate this ground
for JAML in their renewed post-trial motion. Rule 50(b) provides for the
renewal of a motion for JAML after trial when such a motion has been made at
5
the end of all of the evidence. FED. R. CIV. P. 50(b); BE & K Constr. Co.
v. United Bhd. of Carpenters & Joiners of Am, AFL-CIO, 90 F.3d 1318, 1325
(8th Cir. 1996). The Board Members missed this procedural step. Where an
appellant fails to renew its motion for JAML after the verdict, this court
“‘cannot
5
Rule 50(b) provides, in pertinent part, as follows:
If, for any reason, the court does not grant a motion for
judgment as a matter of law made at the close of all
evidence, the court is considered to have submitted the
action to the jury subject to the court’s later deciding the
legal questions raised by the motion. The movant may
renew its request for judgment as a matter of law by filing a
motion no later than 10 days after entry of judgment—and
may alternatively request a new trial or join a motion for a
new trial under Rule 59.
18
test the sufficiency of the evidence to support the jury’s verdict beyond
application of the “plain error” doctrine in order to prevent a manifest
miscarriage of justice.’” James E. Brady & Co., Inc. v. Eno, 992 F.2d 864,
868 (8th Cir. 1993) (quoting Karjala v. Johns-Manville Prods. Corp.,
523 F.2d
155, 157 (8th Cir. 1975)); accord
Dupre, 112 F.3d at 336 (errors at trial not
properly preserved are reviewed only for plain error);
Yannacopoulos, 75 F.3d
at 1304 (same);
McKeel, 73 F.3d at 211 (same);
Rush, 56 F.3d at 922 (same).
This court will therefore conduct only a “plain error” review of the standard
for employer liability on Title VII retaliation claims.
2. The objection to the combined instruction
The Board Members’ procedural default on their objection to the
combined instruction on state and federal retaliation claims is different.
Instead of failing to renew post-trial an objection raised in a prior motion
for JAML or prior objection to jury instructions, the record contains no
indication that the Board Members ever raised an objection to the combined
retaliation instruction before their post-trial “renewal” of their motion for
JAML or new trial. The Board Members were required to raise an objection to
the combined instruction “before the jury retire[d] to consider its verdict,”
and their objection to the combined instruction had to state distinctly the
specific objections to the combined instruction and the grounds therefor.
FED. R. CIV. P. 51; Westcott, 133 F.3d at ___; Dupre, 112 F.3d at 334;
Ryther,
108 F.3d at 845;
Starks, 58 F.3d at 361;
Doyne, 953 F.2d at 450. The Board
Members have pointed to nothing in the record that would lead this court to
believe that they ever proffered any objection to the combined instruction
before it was submitted to the jury or that, if they raised some objection,
that it was sufficiently “distinct” or “specific,” or adequately stated the
grounds therefor to preserve the error. Even if they proffered separate
instructions on the state and federal retaliation claims, this would not
suffice to preserve the error of
19
the combined instruction, because “[e]ven tendering an alternative
instruction without objecting to some specific error in the trial court’s
charge or explaining why the proffered instruction more accurately states the
law does not preserve the error for appeal.” Westcott, 133 F.3d at ___;
Jones Truck Lines, Inc. v. Full Serv. Leasing Corp., 83 F.3d at 256-57.
Consequently, this purported error in the jury instructions will also be
reviewed only for “plain error.” See Westcott, 133 F.3d at ___;
Dupre, 112
F.3d at 334;
Ryther, 108 F.3d at 847.
Having established the standard of review for the questions presented
on this appeal, we turn now to the merits of the Board Members’ assertions
of error.
C. Employer Liability For Retaliation
The Board Members assert, first, that the trial court erred in denying
their renewed motion for JAML or new trial, because no evidence was adduced
at trial that the Board Members knew or should have known about the alleged
retaliation against Cross. They state that they can find no decision of this
court applying a respondeat superior or vicarious liability standard to a
retaliation claim, and that Cross’s claims clearly do not involve claims of
quid pro quo harassment. Rather, they argue that the “knew or should have
known” test is applicable to a retaliation claim by analogy to the holdings
of this court in hostile environment sexual harassment cases under Title VII,
such as Davis v. City of Sioux City, 115 F.3d 1365 (8th Cir. 1997), and Smith
v. St. Louis Univ.,
109 F.3d 1261 (8th Cir. 1997).
However, Cross points out that in Davis and other cases in which this
court has discussed retaliation claims, this court has never held that proof
that the employer knew or should have known of the retaliation was an element
of the claim. Cross likens retaliatory conduct by a supervisory employee,
such as the Chief of Police here, to quid
20
pro quo harassment, because it is the Chief’s power as an agent of the
employer that allowed him to retaliate. She argues further that application
of the “knew or should have known” standard to retaliation claims would
effectively emasculate Title VII, because there would be no entity liable for
retaliation where a governmental board or entity delegates daily operations
to members of a command staff, and application of such a standard would also
make meaningless the distinction between suing Board Members in their
official capacities and suing them in their individual capacities.
Courts are split on, or at least uncertain about, the standard for
liability of an employer for retaliation that violates Title VII. See, e.g.,
Jansen v. Packaging Corp. of Am., 123 F.3d 490, 494-95 (7th Cir. 1997) (en
banc) (per curiam) (in a “welter” of opinions addressing different aspects
of employer liability, making clear that a majority of the court agreed on
a “negligence” standard for hostile-environment claims and “strict” liability
for quid pro quo harassment, but not clearly placing retaliation in either
category), petition for cert. granted in part, Burlington Industries, Inc.
v. Ellerth, ___ U.S. ___,
118 S. Ct. 876 (Jan 23, 1998) (No. 97-569); Reed
v. A. W. Lawrence & Co., Inc.,
95 F.3d 1170, 1180 (2d Cir. 1996) (panel
decision discussing the application of “agency” principles for employer
liability for co-worker practices, including retaliation, applying a “knew
but did nothing” standard); and compare Davis v. Palmer Dodge West, Inc.,
977
F. Supp. 917, 925 (S.D. Ind. 1997) (relying on a concurring opinion in
Jansen, supra, for the proposition that it was “clear” in the Seventh Circuit
that “courts must hold an employer to a strict liability standard for quid
pro quo harassment, and a heightened negligence standard for hostile
environment and retaliatory harassment by a supervisor”); with Gary v.
Washington Area Transit Auth.,
886 F. Supp. 78, 88 (D.D.C. 1995) (holding
that, “[i]n a retaliation case, as in a the quid pro quo case, the employer
should be held strictly liable).” Although it is clear in this circuit that
21
different standards apply to employer liability for hostile environment and
quid pro quo cases, see, e.g., Davis v. City of Sioux City, 115 F.3d 1365
(8th Cir. 1997), it isn’t clear into which category retaliation generally,
and retaliation by a supervisor specifically, falls.
1. Retaliation under Title VII
Title VII prohibits an employer from retaliating against an employee
because he or she “has opposed any practice made an unlawful employment
practice by this subchapter,” or “has made a charge” of harassment, or has
“participated in any manner in an investigation, proceeding, or hearing under
this subchapter.” 42 U.S.C. § 2000e-3(a). The elements of a claim of
retaliation in violation of Title VII are the following: (1) the plaintiff
filed a charge of harassment or engaged in other protected activity; (2) the
plaintiff’s employer subsequently took adverse employment action against the
plaintiff; and (3) the adverse action was causally linked to the plaintiff’s
protected activity. Manning v. Metropolitan Life Ins. Co., Inc., 127 F.3d
686, 692 (8th Cir. 1997) (citing Cram v. Lamson & Sessions, Co.,
49 F.3d 466,
474 (8th Cir. 1995)); Kim v. Nash Finch Co.,
123 F.3d 1046, 1060 (8th Cir.
1997) (“The elements of a retaliation claim under § 1981 and Title VII are
(1) protected activity, (2) subsequent adverse employment action, and (3) a
causal relationship between the two. See Barge v. Anheuser-Busch, Inc.,
87
F.3d 256, 259 (8th Cir. 1996) (§ 1981 retaliation claim); Kobrin [v.
University of Minnesota], 34 F.3d [698,] 704 [(8th Cir. 1994)] (Title VII
retaliation claim).”); Harris v. Secretary, U.S. Dep’t of the Army,
119 F.3d
1313, 1318 (8th Cir. 1997) (“To establish a prima facie case of retaliation,
[the employee] needed to show: 1) she complained of discrimination; 2) the
[employer] took adverse employment action against her; and 3) the adverse
action was causally related to her complaint.”); Montandon v. Farmland
Indus., Inc.,
116 F.3d 355, 359 (8th Cir. 1997)
22
(also describing these elements of a prima facie showing of retaliation);
Davis v. City of Sioux City, 115 F.3d 1365, 1369 (8th Cir. 1997) (“To prove
unlawful retaliation, [the employee] must show that she complained of
discrimination, the [employer] took adverse action against her, and the
adverse action was causally related to her complaint,” citing Marzec v.
Marsh,
990 F.2d 393, 396 (8th Cir. 1993)); Smith v. St. Louis Univ.,
109 F.3d
1261, 1266 (8th Cir. 1997) (also describing these elements as establishing
a prima facie case of retaliation). Once this prima facie showing is made,
the burden shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its actions, and, if the employer meets that
burden, the presumption of retaliation disappears.
Manning, 127 F.3d at 692
(citing Jackson v. Delta Special Sch. Dist. No. 2,
86 F.3d 1489, 1494 (8th
Cir. 1996));
Harris, 119 F.3d at 1318 (also citing Jackson); Moschetti v.
Chicago, Central & Pacific R. Co.,
119 F.3d 707, 709 (8th Cir. 1997)
(explaining this burden-shifting analysis, citing Rothmeier v. Investment
Advisers, Inc.,
85 F.3d 1328, 1332 (8th Cir. 1996));
Montandon, 116 F.3d at
359. The factfinder is then “left to determine if [the employee] presented
evidence capable of proving that the [employer’s] proffered reasons for
termination were a pretext for illegal retaliation.”
Harris, 119 F.3d at
1318; accord
Moschetti, 119 F.3d at 709;
Montandon, 116 F.3d at 359.
2. Standards for employer liability for harassment
Cross is correct that the cases cited just above do not appear to
require proof that the employer knew or should have known of the retaliation
as an element of a retaliation claim. Yet, as this court pointed out in
Davis, this court has consistently required proof that the employer knew or
should have known of harassment, yet failed to take proper remedial
action—even when the harassment was by a supervisory employee—in order to
hold the employer liable for a sexually hostile environment.
23
Davis, 115 F.3d at 1368 (citing Smith v. St. Louis Univ.,
109 F.3d 1261, 1264
(8th Cir. 1997); accord Todd v. Ortho Biotech, Inc., ___, F.3d ___, ___,
1998
WL 92207, *2-3 (8th Cir. Mar. 5, 1998) (reiterating the “knew or should have
known” standard for hostile environment sexual harassment by a supervisor,
and rejecting a standard imputing liability where the supervisor uses his
actual or apparent authority to further the harassment where the supervisor
had no direct authority over the victim); Kinman v. Omaha Pub. Sch. Dist.,
94 F.3d 463, 469 (8th Cir. 1996); Callanan v. Runyun,
75 F.3d 1293, 1296 (8th
Cir. 1996); and Burns v. McGregor Elec. Indus., Inc.,
955 F.3d 559, 564 (8th
Cir. 1992)). In Davis, this court held that the district court had abused
its discretion in not instructing the jury on the “knew or should have known”
employer liability standard on the plaintiff’s hostile environment claim.
See
id. at 1369.
Even so, in Davis, this court did not then apply the “knew or should
have known” standard to the plaintiff’s retaliation claim.
Id. Instead, the
court considered whether the employer took adverse action against the
plaintiff.
Id. This court’s decision in Smith, a decision cited in Davis
as applying the “knew or should have known” standard to a hostile environment
claim, is perhaps still more instructive, because in that case not only was
the plaintiff’s supervisor the alleged harasser on the plaintiff’s hostile
environment claim, but he was also the person whose conduct was alleged to
be the basis for the plaintiff’s retaliation claim. See
Smith, 109 F.3d at
1265-66. Although this court required proof that the employer knew or should
have known of the hostile environment harassment by the supervisor to hold
the employer liable on the hostile environment claim, this court did not
require proof that the employer knew or should have known of a supervisor’s
retaliation, but did nothing, for the plaintiff to prevail on her retaliation
claim.
Smith, 109 F.3d at 1265-66. Instead, the court apparently imputed
the retaliatory conduct of the supervisor—which in that case
24
involved negative comments about the plaintiff to prospective
employers—directly to the employer. Id.
In Davis, this court noted that the “knew or should have known”
standard for employer liability in hostile environment cases was in contrast
to the standard applicable in quid pro quo cases:
In the situation of quid pro quo sexual harassment by
a supervisor, where the harassment results in a
tangible detriment to the subordinate employee,
liability is imputed to the employer. Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 76,
106 S. Ct. 2399,
2410, 91 L. Ed. 2d 49 (1986) (Marshall, J., concurring
in judgment).
Davis, 115 F.3d at 1367; accord Todd, ___ F.3d at ___,
1998 WL 92207 at *2
(also noting this distinction, relying on Davis). A number of courts have
explained why this should be so. In Reinhold v. Commonwealth of Virginia,
135 F.3d 920 (4th Cir. 1998), the Fourth Circuit Court of Appeals observed
that whether the employer knew or should have known of the harassment was
always an element of a sexual harassment claim, but that this requirement “is
automatically satisfied” where the sexual harassment was of the quid pro quo
variety and “is committed by one of the employer’s supervisors,” because the
retaliator was acting as the employer.
Reinhold, 135 F.3d at 931-32. The
Eleventh Circuit Court of Appeals has explained that “‘[w]hen a supervisor
requires sexual favors as a quid pro quo for job benefits, the supervisor,
by definition, acts as the company.’” Farley v. American Cast Iron Pipe Co.,
115 F.3d 1548, 1552 (11th Cir. 1997) (quoting Steele v. Offshore
Shipbuilding, Inc.,
867 F.2d 1311, 1316 (11th Cir. 1989)). The Second
Circuit Court of Appeals, too, has explained that, “[b]ecause the quid pro
quo harasser, by definition, wields the employer’s authority to alter the
terms and conditions of employment—either actually or
25
apparently—the law imposes strict liability on the employer for quid pro quo
harassment.” Karibian v. Columbia Univ., 14 F.3d 773, 777 (2d Cir.), cert.
denied,
512 U.S. 1213 (1994).
3. The nature of retaliatory action and the standard for employer
liability
A review of decisions of this court reveals that employment actions
that are sufficiently adverse to sustain a retaliation claim are also often
actions in which the retaliator wields the employer’s authority—either
actually or apparently—to effect the retaliation, which must take the form
of a material employment disadvantage. See, e.g., Manning, 127 F.3d at 692
(employment actions that were sufficiently adverse to sustain a retaliation
claim include “tangible change in duties or working conditions that
constituted a material employment disadvantage,” or an “ultimate employment
decision,” such as termination, demotion, reassignment, but not merely
hostility, disrespect, or ostracism);
Kim, 123 F.3d at 1060 (sufficiently
adverse actions include discharge, reduction of duties, actions that
disadvantage or interfere with the employee’s ability to do his or her job,
and “papering” of an employee’s file with negative reports and reprimands);
Montandon, 116 F.3d at 359 (sufficiently adverse actions include termination,
demotion, transfers involving changes in pay or working conditions, and
negative evaluations used as the basis for other employment actions);
Davis,
115 F.3d at 1369 (retaliation took the form of transfer to a less desirable
position, because that position offered little opportunity for salary
increases or advancement);
Smith, 109 F.3d at 1265-66 (retaliation took the
form of negative references to prospective employers). It would follow that
employer liability would also be imputed for such retaliatory acts, because
in such circumstances, the retaliator is, by definition, acting as the
employer.
26
This court’s recent decision in Todd is not to the contrary. See Todd,
___ F.3d at ___, 1998 WL 92207 at *2-3. In Todd this court found it was
reversible error for the district court to instruct a jury that the employer
could be held liable for sexual harassment committed by a supervisor if the
supervisor used his actual or apparent authority to further the harassment,
or if he was otherwise aided in accomplishing the harassment by the existence
of his supervisory powers.
Id. The court found it to be contrary to the
statute and principles of agency law to impose liability upon an employer for
the wrongful act of a supervisor acting well beyond the scope of his duty,
particularly when the harassment complained of was a one-time act committed
outside the workplace that the employer could not have anticipated.
Id. at
*4. The court therefore reiterated the applicability of the “knew or should
have known” standard.
Id. However, the case before the court in Todd was
one of hostile environment sexual harassment, not retaliation, and the court
held the “knew or should have known” standard was appropriate where the
“supervisor” had no direct authority over the victim.
Id. Here, Chief
Bishop had direct authority over the Cross and the record supports the
conclusion that he used his actual or apparent authority, and acted within
the scope of his duty, to effect retaliation, rather than simply to harass
Cross.
Consequently, in this case, where the retaliation took the form of
investigations, transfers, and suspensions by Chief Bishop, the retaliation
was effected by using the Chief’s authority—actual or apparent—to act as the
employer, that is, by using his delegated authority from the Board to manage
the Department. In such a situation, it was not plain error for the trial
court not to require proof that the Board Members, Cross’s actual employer,
knew or should have known of the retaliation. Imposing liability in the
absence of proof that the employer knew or should have known of retaliation
did not result in any miscarriage of justice. Rush, 56 F.3d at 922.
27
It is also possible that the retaliator could be so high in the
employer’s hierarchy that, employing common-law agency principles as directed
by the Supreme Court, see Meritor, 477 U.S. at 72, the retaliatory conduct
would necessarily be imputed to the employer. Cf. Torres v.
Pisano, 116 F.3d
at 625, 633-34 (2d Cir. 1997) (holding that an employer will be liable for
sexual harassment by one of its supervisors if the supervisor was at a
sufficiently high level in the company, citing the Restatement of Agency, and
its prior decision in Kotcher v. Rosa & Sullivan Appliance Ctr., Inc.,
957
F.2d 59, 63-64 (2d Cir. 1992)). Here, where the retaliator was the Chief of
Police, the person to whom the Board had delegated responsibility for the
actions of the Department, the retaliatory conduct of the Chief would
necessarily be imputed to the Board. Thus, on this ground also, it was not
plain error for the trial court not to require proof that the Board Members
knew or should have known of the retaliatory conduct in order to hold the
Board Members liable for the retaliation, as no miscarriage of justice
resulted.
Rush, 56 F.3d at 922.
We can envision the circumstance, however, in which a supervisory
employee who engages in retaliation is neither so high in the hierarchy that
his or her conduct is necessarily imputed to the employer, nor does the
retaliatory conduct in which the supervisor engages necessarily involve
wielding the actual or apparent authority of the employer. Thus, the
standard of employer liability applicable to a retaliation claim may well
depend upon both the status of the retaliator and the nature of the
retaliatory conduct.
In the circumstances of this case, however, we hold that, where a
supervisory employee with the power to hire, fire, demote, transfer, suspend,
or investigate an employee is shown to have used that authority to retaliate
for the filing of a charge of sexual harassment, the plaintiff need not also
prove that the employer participated in
28
or knew or should have known of the retaliatory conduct to hold the employer
liable. Indeed, in the circumstances where the employer is a board, and that
board delegates authority to an individual to run day-to-day operations of
a department, application of the “knew or should have known” standard to the
members of the board would have the effect of insulating the employer from
Title VII liability.
Thus, it was not plain error for the trial court to deny the Board
Members’ motion for JAML on the ground that no evidence had been adduced that
the Board Members knew or should have known of the retaliation against Cross,
because no such proof was required in this case. Furthermore, we find that
the evidence presented at trial was sufficient to support a reasonable
finding on each of the required elements of Cross’s retaliation claim.
Stockmen’s Livestock Mkt., Inc., 135 F.3d at 1243; HBE Corp.,
135 F.3d 554;
Meisner, 133 F.3d at 656;
Hathaway, 132 F.3d at 1220;
Ryther, 108 F.3d at
844. Consequently, there is no other ground for overruling the trial court’s
6
denial of the Board Members’ post-trial motion for JAML.
D. Combined Retaliation Instruction
The Board Members’ second ground for appeal is that the trial court
erred in submitting both Cross’s state and federal retaliation claims in a
combined instruction. As we held above, this issue can be reviewed only for
plain error, because the Board
6
Furthermore, in light of this court’s determination of the applicable standard for
employer liability and the nature of the record below, it was not an abuse of discretion
for the trial court to deny the Board Members’ alternative motion for a new trial on the
ground that the verdict was against the weight of the evidence, see Keeper, 130 F.3d
at 1314;
Schultz, 105 F.3d at 1259, where that alternative motion was also based on an
alleged failure to adduce any evidence meeting the “knew or should have known”
requirement.
29
Members failed to make adequate, timely objections to the joint verdict
director before the instructions were submitted to the jury.
On appeal, the Board Members assert that it was error to submit the
MHRA retaliation claim on the basis of the same elements as the Title VII
retaliation claim, because the MHRA contains much broader language than the
comparable provisions of Title VII, citing Williamson v. Arvin Indus., Inc.,
975 F. Supp. 1235 (E.D. Mo. 1997), and because the Missouri Supreme Court
held in Keeney v. Hereford Concrete Prods., Inc.,
911 S.W.2d 622 (Mo. 1995)
(en banc), that “the difference in the language employed by the two statutes
is sufficiently stark to render interpretations of the federal law inapposite
for purposes of assigning meaning to section 213.070 [of the MHRA].”
Keeney,
911 S.W.2d at 624. Cross counters that the MHRA is “broader” in respects
that do not matter here and that the elements of the two retaliation claims,
in this case, were indeed identical.
1. Retaliation under Missouri law
The portion of the MHRA prohibiting retaliation, codified at MO. REV.
STAT . § 213.070(2), makes it “an unlawful discriminatory practice” “[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.” The Missouri Supreme Court recently discussed this statute in
Keeney, 911 S.W.2d at 622.
In Keeney, the Missouri Supreme Court was asked, first, to consider
whether a former employee is a “person” under § 213.070(2). Keeney, 911
S.W.2d at 622. The employer argued that the Missouri statute must be read
in a manner consistent with federal law, and hence could only protect a
person who is an employee of the company
30
charged with retaliation. Id. at 624. Comparing the language of the anti-
7
retaliation provision of Title VII, 42 U.S.C. § 2000e-3(a), with the
language of the MHRA, the Missouri Supreme Court wrote,
It is immediately obvious that the language employed
by Congress in 42 U.S.C. § 2000e-3(a) is considerably
more limited than the exceedingly broad “in any manner
against any other person” language adopted by the
Missouri legislature in section 213.070. Indeed, the
difference in the language employed by the two
statutes is sufficiently stark to render judicial
interpretations of the federal law inapposite for
purposes of assigning meaning to section 213.070.
The language of section 213.070(2) is clear and
unambiguous. The statute renders retaliation “in any
manner against any other person” an unlawful
discriminatory practice.
Keeney, 911 S.W.2d at 624. Consequently, the Missouri court held that the
trial court’s conclusion that the plaintiff could not prevail on his MHRA
retaliation claim, because no employer-employee relationship existed between
the plaintiff and the defendant, was erroneous.
Id. at 625.
More to the point here, however, is the Missouri Supreme Court’s
comparison of the elements of a retaliation claim under the MHRA with those
of such a claim under
7
The federal provision states,
It shall be an unlawful employment practice for an employer
to discriminate against any of his employees . . . because he
has opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a
charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under this
subchapter.
42 U.S.C. § 2000e-3(a).
31
Title VII. The Missouri court held that the trial court had “erroneously
impose[d] federal interpretations of 42 U.S.C. § 2000e-3(a) on section
213.070,” because the trial court had ruled that the plaintiff’s evidence
“d[id] not demonstrate that the alleged retaliatory action had any impact on
Plaintiff’s future employment or employability.” Keeney, 911 S.W.2d at 625.
The Missouri Supreme Court rejected the intimation in Sweeney v. City of
Ladue,
25 F.3d 702, 703 (8th Cir. 1994), that 42 U.S.C. § 2000e-3(a) and
§ 213.070 are identical in scope and purpose.
Keeney, 911 S.W.2d at 625 n.1.
Instead, the Missouri court compared the elements of a retaliation claim
under the two statutes as follows:
Federal judicial interpretations of 42 U.S.C.
§ 2000e-3(a) require (1) that the employee engaged in
an activity protected by the statute, (2) that adverse
employment action occurred, and (3) that a causal
connection existed between the two. Sweeney v. City
of Ladue, 25 F.3d 702, 703 (8th Cir. 1994). An
adverse employment action occurs where a former
employee suing for retaliation, demonstrates that the
retaliatory action adversely affects his/her future
employment or employability. Bailey v. USX Corp., 850
F.2d 1506, 1508 (11th Cir. 1988); Pantchenko v. C. B.
Dolge Co., Inc., 581 F.2d 1052, 1053 (2d Cir. 1978).
Under section 213.070, retaliation must be given
broader meaning; this is because section 213.070 does
not limit itself to the employer-employee
relationship. Thus, retaliation exists under section
213.070 when (1) a person files a complaint,
testifies, assists or participates in an
investigation, proceeding or hearing conducted
pursuant to chapter 213 and (2) as a direct result, he
or she suffers any damages due to an act of reprisal.
This Court cannot judicially impose a requirement
outside of the plain language in section 213.070.
Here, the trial court applied the wrong legal standard
for determining if retaliation occurred under that
section.
32
Keeney, 911 S.W.2d at 625-26.
2. Cross’s state-law retaliation claim
However, in this case, there is no dispute that Cross was an employee
of the Board at the time she alleges she was retaliated against, not a former
employee, so the broader scope of the MHRA anti-retaliation provision, as
compared to the Title VII provision, is not called into play. See Keeney,
911 S.W.2d at 625-26. Of the pertinent elements, we can perceive no
effective difference in this case between proof that “the employee engaged
in an activity protected by the statute,” the first element of a Title VII
retaliation claim, and proof that a current employee “file[d] a complaint,
testifie[d], assist[ed] or participate[d] in an investigation, proceeding or
hearing conducted pursuant to chapter 213,” the first element of a
retaliation claim under the MHRA. Nor can we see any effective difference
between proof that there was a causal connection between the employee’s
protected activity and adverse employment action, the remaining elements of
a Title VII retaliation claim, and proof that “as a direct result [of
protected activity], [the employee] suffer[ed] any damages due to an act of
reprisal,” the second element of a retaliation claim under the MHRA. In this
case, we cannot find that the trial court committed any plain error in
instructing on the two retaliation claims in a combined instruction stating
elements drawn from Title VII cases. Westcott, 133 F.3d at ___;
Dupre, 112
F.3d at 334;
Ryther, 108 F.3d at 847.
Furthermore, to the extent the Missouri statute would provide for
relief in a broader set of circumstances, because the jury verdict here was
rendered on the narrower statement of elements of a Title VII retaliation
claim, there can be no doubt that the verdict was rendered on the Title VII
claim, the claim permitted by the trial court here. The Board Members’
argument that there is confusion over the claim upon which the verdict was
rendered, the state or federal one, could only have merit if the
33
verdict had been rendered on the broader elements, and the court had then
stricken the broader claim, leaving in doubt whether the proof was adequate
to sustain the narrower claim. Thus, there was no plain error in the
combined instruction that seriously affected the fairness, integrity, or
public reputation of the judicial proceedings or that would result in a
miscarriage of justice if left uncorrected. Westcott, 133 F.3d at ___;
Dupre, 112 F.3d at 334;
Ryther, 108 F.3d at 847. Rather, the combined
instruction fairly and adequately stated the applicable law, when read as a
whole in the circumstances of this case, and the Board Members can
demonstrate no prejudice from the combined instruction. Stockmen’s Livestock
Mkt.,
Inc., 135 F.3d at 1245;
Dupre, 112 F.3d at 335.
III. CONCLUSION
We conclude that appellants failed to preserve either of the errors
they assert on appeal. Having reviewed the trial court’s rulings for “plain
error,” we hold, first, that where a supervisory employee with the power to
hire, fire, demote, transfer, suspend, or investigate an employee is shown
to have used that authority to retaliate for the filing of a charge of sexual
harassment, the plaintiff need not also prove that the employer participated
in or knew or should have known of the retaliatory conduct to hold the
employer liable, and the trial court properly denied a post-trial motion for
JAML or new trial based on the assertion that the “knew or should have known”
standard had not be satisfied. Second, we hold that the trial court did not
plainly err in giving a combined instruction on the plaintiff-appellee’s
retaliation claims under the MHRA and Title VII, because, in the
circumstances of this case, the elements of the two claims were essentially
identical. Finding no error, the judgment of the district court is affirmed.
34
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT
35
