Gilooly v. Missouri Dept. of Health

• Decision Date: 31 August 2005
• Docket Number: No. 04-2460.,04-2460.
• Parties: Randy GILOOLY, Plaintiff-Appellant, v. MISSOURI DEPARTMENT OF HEALTH AND SENIOR SERVICES, Division of Senior Service; Missouri Department of Social Service, Division of Aging; Betty Bolden; Jennifer Sutton; Gladys Hood; Helen Edwards-Matthews; Bonnie Eulinberg; Karen Hollering; Linda Allen; Sandra Lewis, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

421 F.3d 734

Randy GILOOLY, Plaintiff-Appellant, v. MISSOURI DEPARTMENT OF HEALTH AND SENIOR SERVICES, Division of Senior Service; Missouri Department of Social Service, Division of Aging; Betty Bolden; Jennifer Sutton; Gladys Hood; Helen Edwards-Matthews; Bonnie Eulinberg; Karen Hollering; Linda Allen; Sandra Lewis, Defendants-Appellees.

No. 04-2460.

United States Court of Appeals, Eighth Circuit.

Submitted: January 13, 2005.

Filed: August 31, 2005.

COPYRIGHT MATERIAL OMITTED

Martin L. Perron, argued, St. Louis, MO (Maria V. Perron, St. Louis, on the brief), for appellant.

Denise L. Thomas, argued, Assistant Missouri Attorney General, St. Louis, MO, for appellee.

Before MELLOY, SMITH, and COLLOTON, Circuit Judges.

MELLOY, Circuit Judge.

Randy Gilooly filed an employment discrimination suit in federal court pursuant to Title VII and 42 U.S.C. § 1983, and under state law pursuant to the district court's supplemental jurisdiction, against the Defendant-Appellees (collectively, the "Appellees"). Gilooly appeals the district court decision granting summary judgment to the Appellees. We affirm in part and reverse and remand in part.

I.

Gilooly was employed by the Missouri Department of Health and Human Services, Section for Senior Services [Division of Aging] (hereafter "DoA").¹ At the DoA, defendant Gladys Hood supervised Gilooly and defendants Jennifer Sutton and Betty Bolden. Effective March 12, 2001, Gilooly was granted a transfer from his position under Hood in Mississippi County to a similar position in Cape Girardeau County. Defendant Helen Edwards-Matthews was Gilooly's supervisor at the new location. Defendant Bonnie Eulinberg was the regional manager for both counties in which Gilooly worked.

Before Gilooly's transfer, during his exit interview, Gilooly told Hood that Sutton and Bolden engaged in conduct that made it necessary for him to transfer. Specifically, Gilooly alleged that Sutton was frequently around his desk and that she had said she was attracted to him. He also complained that Bolden made unannounced visits to his home. Gilooly admitted that he had a relationship with Bolden previously. Gilooly stated that personal problems between Bolden and him were making it difficult for him to perform his job. Gilooly said that he needed a transfer because Bolden and Sutton had become "overly dependent on him." At the time of the exit interview, Gilooly did not file any sexual harassment complaint. During meetings with Hood, both Bolden and Sutton confessed to having relationships with Gilooly. Gilooly denied a current relationship with either woman.

On May 8, 2001, Gilooly and his girlfriend, Angie Decker, who was not an employee of the DoA, visited a client in a mental hospital. The visit was unauthorized because Gilooly had not obtained supervisor approval. During an inquiry about the visit, it was discovered that this was not Gilooly's first unauthorized visit with the client. Gilooly had also given the client a can of pepper spray even though she was a known self-mutilator. Edwards-Matthews and Eulinberg recommended discipline for Gilooly's misconduct.

On May 30, 2001, Gilooly wrote a reply to the disciplinary recommendation. In the reply, he alleged that the disciplinary recommendation was in retaliation for his report of sexual harassment during his exit interview, though he had never actually filed a sexual harassment complaint. On July 6, 2001, defendant Karen Hoellering, a DoA human resources manager, issued a suspension letter to Gilooly. He was suspended without pay for five days for his unauthorized visit, giving the pepper spray, and his uncooperative attitude after the disciplinary report was issued. Hoellering also learned, but did not base her decision upon the fact, that Gilooly had exchanged personal emails on state time and equipment with at least eight women.

On July 12, 2001, Gilooly and his union representative met with Edwards-Matthew and Eulinberg regarding the suspension. On July 27, 2001, Gilooly filed a charge of discrimination with the Missouri Commission on Human Rights. On August 9, 2001, Gilooly filed a grievance review request alleging sexual harassment and unlawful retaliation in violation of Title VII. In his request, Gilooly alleged that Bolden and Sutton had engaged in a range of inappropriate conduct toward him. Specifically, he alleged that Sutton had hugged him in an inappropriate manner, distracted him from his work by visiting his desk, and made unwanted advances toward him. He also alleged that Bolden had made unannounced visits to his home and also distracted him from working. Defendant Sandra Lewis of the Office of Civil Rights of the Department of Social Services was charged with investigating Gilooly's claims. On September 17, 2001, the Office of Civil Rights issued its report and did not support Gilooly's allegations. On September 26, 2001, Gilooly's administrative appeal of his suspension was heard and denied. On October 25, 2001, Gilooly was fired, effective November 7, 2001.

The termination letter stated that "[t]he reason for [Gilooly's] dismissal [was] that [he] made false statements during the investigation and grievance hearing which followed [his] accusations against two former co-workers." The letter identified several areas where it was alleged that Gilooly had deceived investigators. First, it alleged that Gilooly had falsely denied "personal relationships beyond friendship" with several former co-workers. In the letter, "Jennifer," "Betty," and "ClaraE" are identified as three women who alleged having had relationships with Gilooly, but with whom Gilooly had either denied or refused to answer whether he was involved in a sexual manner. Second, the termination letter stated that Gilooly's allegation that "Jennifer" and "Betty" had prevented him from doing work by distracting him was false because they had told investigators that they had actually been doing Gilooly's work. Third, eyewitness accounts of particular events allegedly contradicted Gilooly's statements. For each of these allegations, the termination letter did not cite any documentation beyond the testimony of other employees and witnesses. The letter also recounted the events that led to Gilooly's suspension.

On November 26, 2001, Gilooly appealed his termination to the Personal Advisory Board, but it upheld the termination. On January 13, 2002, Gilooly filed a second complaint with the Missouri Commission on Human Rights. In the second complaint, Gilooly alleged that his firing was retaliatory. Again, the commission did not find Gilooly's allegations to be credible.

Gilooly then filed a sexual harassment lawsuit in federal court that is the basis for this appeal. The district court granted summary judgment for the defendant on all claims. On appeal, Gilooly argues that the district court erred in finding that he had failed to establish a prima facie case of: 1) hostile work environment; 2) disparate treatment; and 3) unlawful retaliation. We address each of Gilooly's arguments in turn.

II.

The standard of review for a grant of summary judgment is de novo. Allen v. City of Pocahontas, Ark., 340 F.3d 551, 554-55 (8th Cir.2003). To succeed against a motion for summary judgment in a case like this one, the plaintiff must present sufficient evidence to create a genuine issue of material fact. Jetton v. McDonnell Douglas Corp., 121 F.3d 423, 425 (8th Cir.1997). In reviewing the judgment of the district court, we must view all evidence "`in the light most favorable to the nonmoving party.'" Cherry v. Ritenour Sch. Dist., 361 F.3d 474, 478 (8th Cir.2004) (quoting Philip v. Ford Motor Co., 328 F.3d 1020, 1023 (8th Cir.2003)).

III.

Gilooly argues that the Appellees were not entitled to summary judgment as to his hostile work environment claim. To establish a claim of hostile work environment, a plaintiff must show that: (1) he or she was a member of a protected group; (2) he or she was subjected to unwelcome harassment in the workplace; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take prompt and effective remedial action. Alagna v. Smithville R-II, 324 F.3d 975, 979 (8th Cir.2003); Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 965 (8th Cir.1999).

Because we agree with the district court that Gilooly is unable to prove any material fact question as to the fourth element, we need not discuss the other elements. To establish the fourth element, a plaintiff must be prove that the harassment was "so severe or pervasive as to alter a term, condition, or privilege of employment." Scusa, 181 F.3d at 967. The conduct at issue must not be "merely rude or unpleasant." Alagna, 324 F.3d at 980. A plaintiff must establish harassment that is "so intimidating, offensive, or hostile that it `poisoned the work environment.'" Scusa, 181 F.3d at 967 (quoting Scott v. Sears, Roebuck & Co., 798 F.2d 210, 214 (7th Cir.1986)). A plaintiff must be able to show that "the workplace [was] permeated with discriminatory intimidation, ridicule, and insult." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (internal quotations omitted).

In the present matter, there is no evidence of conduct rising to the level of "severe or pervasive" harassment. At most, Gilooly has alleged that he was uncomfortable with Bolden and Sutton's advances toward him. He does not cite any instances of conduct by them that could rise to the level required by Title VII. Gilooly's claim that there were frequent desk visits, unannounced visits to his home, and that Bolden and Sutton were "overly dependent" on him do not constitute sexual harassment under existing law. While Gilooly may have had a belief that such conduct constituted sexual harassment, it is not sufficient as a matter of law. Accordingly, we affirm the judgment of the district court...