Tuggle v. Mangan, 02-3137.

• Decision Date: 06 November 2003
• Docket Number: No. 02-3137.,02-3137.
• Citation: 348 F.3d 714
• Parties: Jacqueline TUGGLE, Plaintiff-Appellee, v. Tom MANGAN, Defendant-Appellant, Missouri Highways and Transportation Commission, Defendant.
• Court: U.S. Court of Appeals — Eighth Circuit

348 F.3d 714

Jacqueline TUGGLE, Plaintiff-Appellee, v. Tom MANGAN, Defendant-Appellant, Missouri Highways and Transportation Commission, Defendant.

No. 02-3137.

United States Court of Appeals, Eighth Circuit.

Submitted: February 14, 2003.

Filed: November 6, 2003.

Robert J. Krehbiel, argued, St. Louis, MO, for appellant.

Counsel who presented argument on behalf of the appellee was Le Anne Wiseman of Columbia, MO.

Before LOKEN,¹ RILEY, and SMITH, Circuit Judges.

RILEY, Circuit Judge.

Jacqueline Tuggle (Tuggle) sued her employer, Missouri Highways and Transportation Commission (MHTC), for sexual harassment, disparate treatment sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, and the Equal Pay Act of 1963, 29 U.S.C. § 206(d). Tuggle also sued her supervisor, Tom Mangan (Mangan), in his individual capacity, under 42 U.S.C. § 1983(1) for sex discrimination and sexual harassment in violation of (a) Title VII, and (b) the Equal Protection Clauses of the Fifth and Fourteenth Amendments, and (2) for retaliation in violation of the First Amendment. The district court granted summary judgment to MHTC and Mangan on all claims except Tuggle's hostile work environment sexual harassment claims against MHTC for violating Title VII and against Mangan for violating the Fourteenth Amendment. After the district court denied Mangan qualified immunity on the hostile work environment claim, Mangan brought this interlocutory appeal. Because we conclude Mangan is entitled to qualified immunity, we reverse.

I. BACKGROUND

For purposes of a qualified immunity interlocutory appeal, we view the facts in the light most favorable to Tuggle, as the district court did. At the outset, we will provide Tuggle's summary of the conduct she contends amounted to a submissible hostile work environment claim: "(1) discriminatory work assignments, (2) deprivation of training in electrician duties, (3) demeaning gender-related comments and unwanted advances, (4) humiliating photograph and jokes about her rear-end, and (5) retaliatory acts that perpetuated the hostile environment such as causing Tuggle to become caked in oil immediately prior to meeting with management."

A. Factual Summary

On April 15, 1997, the Missouri Department of Transportation (MoDOT)² hired Tuggle as a seasonal employee and the first and only female to work in the District 5 signal shop. Tuggle's application indicated she was interested in repairing electronic equipment, data entry, computer programming, and traffic signals. Mangan was her immediate supervisor from her date of hire until December 1999. As a seasonal employee, Tuggle spent 80% of her time working on radios and 20% doing paperwork. Just after starting as a seasonal employee, Mangan asked Tuggle to view traffic signals and streetlights with him at night, a request he never made to male employees.

On August 1, 1997, Tuggle was hired as a full-time Assistant Signal and Lighting Electrician, which required Tuggle to assist signal and lighting electricians in performing duties "related to the maintenance and repair of traffic lights, traffic signals and/or mobile radio equipment." In her new position, Tuggle spent 33% of her time installing radios, 25% working on signals and lights, and 42% doing paperwork. Some of the office work Tuggle performed was consistent with her stated interests on her application. However, Tuggle felt she was not receiving as much experience on the road as the male employees. Tuggle maintains the office work precluded her from cross-training as a permit inspector. A new male employee was allowed to cross-train as a permit inspector, and Tuggle believes the stated reasons for denying her an opportunity to cross-train, i.e., (1) she had not learned her job well enough, and (2) the number of employees at the signal shop was inadequate to complete the work without her, were actually based on gender discrimination.

Tuggle recounts a number of comments Mangan made from the time she was hired as a seasonal employee, but does not provide specific dates when the comments occurred. Because we cannot discern exactly when Mangan allegedly made these comments over a two-year period, we will simply recite them here. Mangan told Tuggle "women are better secretaries" and he wished Tuggle could be his personal secretary. Mangan asked Tuggle why she did not do her hair, wear make-up, or wear a dress to work. Mangan also commented once about Tuggle's fake fingernails. During a performance review, Mangan told Tuggle she was "good at office work," she was a "good secretary," women were better at organizing things, and it was hard for him to let her go out on the road. Mangan once asked Tuggle if she was pregnant after she vomited and asked to go home. On one occasion, after Mangan told Tuggle she needed to respond to a call, and Tuggle replied someone would need to pick up her son, Mangan stated, "you have to choose between your job or your family."

On March 24, 1999, Mangan twice handed Tuggle a shovel and said she needed the exercise more than he. On March 25, 1999, Tuggle saw one photograph of herself in jeans leaning into a truck, and another photograph of herself in the truck facing the camera. The photograph of Tuggle from behind, which showed her clothed rear end, may have been posted on a bulletin board in the shop. Mangan's position required him to photograph employees working. Mangan had taken photographs of male employees bending over as well.

In May 1999, Tuggle told Mangan during a performance review she wanted to go out on the road more. To get that opportunity, Mangan told Tuggle she would have to take some initiative and clean the shop and a male employee's truck, stating "the guys didn't need to come into a dirty shop every day." Tuggle claims she wrote notes on the performance review form about what was said, but Mangan took the form and replaced it with a new form before returning the performance review to her. On the typewritten evaluation dated June 3, 1999, Mangan wrote Tuggle "meets expectations," which qualified her for a raise or promotion.

On June 15, 1999, Tuggle complained to Trent Brooks (Brooks), Mangan's supervisor, about some of Mangan's comments, the photograph, and that she was spending too much time in the office. Tuggle also complained to Wally Campbell (Campbell), Brooks's supervisor. After her complaint, Tuggle, Mangan, and Brooks met monthly to discuss ways to allow Tuggle to get on the road and out of the office. Tuggle believed she was being punished by havingto attend these meetings. After Tuggle complained, Mangan required Tuggle and another employee to change the oil in a truck, which resulted in Tuggle being covered in oil. Even though electricians were required to change oil in the trucks, Tuggle alleges Mangan's forcing her to change the oil was retaliation, as was his failure to inform her she could wear coveralls when changing oil.

On June 21, 1999, Brooks and Campbell told Mangan his comments were inappropriate, and he should use better judgment when photographing workers. On June 24, 1999, a meeting with signal shop employees was held to discuss the photograph and MoDOT's sexual harassment policy. Tuggle left the meeting early and believes her co-workers treated her differently after that, but does not know if Mangan said anything derogatory about her during the meeting. On July 20, 1999, Campbell discussed the Zero Tolerance Policy on sexual harassment with the signal shop employees.

On August 12, 1999, Tuggle complained to Human Resources Manager, Tom Neubauer (Neubauer), who began an investigation. However, on August 24, 1999, Tuggle filed an internal grievance with MoDOT's Director of Employee Relations, which procedurally forced Neubauer to end his investigation. After filing her grievance, Tuggle stopped doing office work completely. By November 1999, Tuggle was on the road all the time. After August 1999, Mangan made no comments regarding Tuggle's appearance or that women were better secretaries, never asked her to clean the shop, and took no more photographs of her. Apparently, the only comments Mangan made to her were for her to show another employee how to clean the bathroom, and he asked if she bought furniture on the state credit card. After Tuggle filed her grievance, Mangan sent Tuggle and another employee to perform maintenance on a signal, which had already been done. Tuggle claims this was retaliation. Mangan also told Tuggle to change a mercury relay, but Tuggle said she had not been trained to do that, so Mangan told her just to perform maintenance on it. Tuggle was not in the office the next morning when Mangan sent two employees to change the mercury relay, and Tuggle claims this was retaliation as well.

On November 8, 1999, Employee Relations informed Tuggle that Mangan was disciplined for questionable comments and behavior, but she had not been subjected to discrimination based on sex, unwelcome sexual harassment or retaliation. On November 17, 1999, Tuggle filed discrimination charges with the Equal Employment Opportunity Commission and state counterpart. On November 18, 1999, Tuggle applied for a Senior Signal and Lighting Electrician position, stating she met the required education and experience qualifications. In December 1999, two Signal and Lighting Electricians were promoted to Senior positions. In June 2000, Tuggle was promoted from Assistant Signal and Lighting Electrician to Signal and Lighting Electrician. On October 11, 2000, Tuggle filed her federal lawsuit against MHTC and Mangan.

B. Procedural Summary

The district court granted summary judgment to Mangan on Tuggle's Title VII and Fifth Amendment equal protection claims, because the claims do not apply in this section 1983 case. The district court also granted summary judgment to Mangan and MHTC on the disparate treatment claims. To support Tuggle's disparate treatment theory,...