500 F.3d 710 (8th Cir. 2007), 06-1970, Weger v. City of Ladue

Docket Nº:06-1970.
Citation:500 F.3d 710
Party Name:Julie WEGER; Mary Meghan Murphy, Plaintiffs-Appellants, v. CITY OF LADUE; William Baldwin; Donald Wickenhauser, Defendants-Appellees.
Case Date:September 13, 2007
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 710

500 F.3d 710 (8th Cir. 2007)

Julie WEGER; Mary Meghan Murphy, Plaintiffs-Appellants,

v.

CITY OF LADUE; William Baldwin; Donald Wickenhauser, Defendants-Appellees.

No. 06-1970.

United States Court of Appeals, Eighth Circuit.

Sept. 13, 2007

Submitted: Jan. 11, 2007.

Rehearing and Rehearing En Banc Denied Nov. 9, 2007. [*]

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Russell F. Watters, argued, St. Louis, Missouri (Irene J. Marusic and T. Michael Ward, on the brief), for appellant.

Gerald M. Richardson, argued, St. Louis, Missouri (Matthew B. Robinson, on the brief), for appellee.

Before LOKEN, Chief Judge, BYE, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Julie Weger and Mary Meghan Murphy (collectively Plaintiffs) appeal the district court's 1 grant of summary judgment to their employer, the City of Ladue, on their claims of sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e to 2000e-17, and the Missouri Human Rights Act ("MHRA"), Mo.Rev.Stat. §§ 213.010-213.137. 2 We affirm.

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I.

We present the facts in a light most favorable to the nonmoving parties, the Plaintiffs. See E.E.O.C. v. Wal-Mart Stores, Inc., 477 F.3d 561, 563 (8th Cir.2007).

Plaintiffs were hired by the City of Ladue Police Department ("Department") as communications officers in 1999 and have been continuously employed by the Department since that time. During Weger's application process, Captain William Baldwin, then a lieutenant, learned that Weger had undergone breast reduction surgery and informed Sergeant John Wagner, then a detective. Wagner communicated this fact to Lieutenant Chris Baker, then a detective. In addition, during Murphy's application process, Baldwin commented to Wagner and Baker something to the effect that, though Murphy was not attractive, she had large breasts. Following their hire, Wagner informed the Plaintiffs of Baldwin's remarks. Eventually, the fact of Weger's prior surgical procedure became well known throughout the Department, resulting in Weger being subjected to teasing by her coworkers.

Plaintiffs work in the communications department, which consists of six dispatchers and one civilian supervisor. In 2000, Baldwin became the uniformed supervisor for the communications department. Baldwin also served as the Department's internal affairs investigator and second in command to Chief of Police Donald Wickenhauser, Baldwin's longtime friend. While serving as Plaintiffs' supervisor, Baldwin worked weekdays from 7 a.m. to 4 p.m., and Plaintiffs worked rotating schedules such that they worked roughly the same hours as Baldwin only one month every six months. However, Plaintiffs often encountered Baldwin as they were coming on to their shifts and he was leaving and vice versa. From the commencement of Baldwin's assignment as Plaintiffs' supervisor, Baldwin sexually harassed the Plaintiffs, even though they continually expressed to Baldwin that they considered his conduct to be unwelcome and inappropriate. 3 As of the fall of 2001, Baldwin engaged in daily harassment of the Plaintiffs.

In the winter of 2001, Detective Norman witnessed an incident where Baldwin put his arm around Murphy's shoulder and leaned in close to her face, and Murphy stood up and stated, "I can't stand him." At an unspecified time, Officer Bonney saw Baldwin come up behind Murphy, who was standing in the communications area, and place his hands on her hips in an attempt to tickle her, Murphy became angry and told Baldwin to stop, Baldwin let go but followed Murphy with outstretched hands as if he was going to tickle her again, and Murphy told Baldwin to leave her alone. Also, at an unspecified time, Detective Lucas saw Baldwin moving his hands on Weger's shoulders and then saw Weger roll her eyes. Finally, in September 2002, Officer Bonney and Sgt. Wagner saw Murphy walking down the hallway with Baldwin behind her, he was rubbing her shoulders, she grimaced and turned away from Baldwin in an effort to break his grip on

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her shoulders, and, in response, Wagner shook his head and said "I can't believe that."

At the inception of Plaintiffs' employment with the Department, they received and reviewed a copy of its antiharassment policy. This policy specifically prohibits sexual harassment and outlines a complaint procedure for employees who believe they are being harassed or those that witness harassment of other employees. The policy requires supervisors to: (1) monitor the Department's work environment for any signs of harassment on a daily basis; (2) advise employees about the types of behavior prohibited and complaint procedures; (3) stop all observed acts of harassment regardless of whether the employees involved are under his or her supervision; and (4) take immediate action to limit the work contact between employees involved in a complaint of harassment pending investigation. Moreover, all Department employees are required to report observed acts of harassment to a supervisor and failure to do so is grounds for discipline. The policy also provides a comprehensive complaint procedure with multiple avenues to report harassment, including any supervisor, the Chief of Police, and the Mayor of Ladue. Upon receipt of a harassment complaint, the policy's procedure provides that the Department will immediately limit work contact between the alleged harasser and the complainant, and the Chief of Police is responsible for the investigation of the complaint. Finally, the policy prohibits retaliation against complainants and those participating in complaint investigations.

On November 5, 2002, Murphy encountered Baldwin in the kitchenette area adjacent to the communications area. Murphy had been out from work the day before because she had two teeth extracted, and she and Baldwin were discussing that procedure. Murphy described what happened next:

[A]s I was standing there conversing with him, [Baldwin] approached me with his hands very close ... attempting to cup my face and asked if ... it hurt. He actually brushed my face. I did [not] know if he was going to kiss me or hug me or what. It made me feel very uncomfortable. At that point in time, I had had it.

Murphy then went immediately upstairs to Lt. Baker's office and reported the incident as well as previous instances of Baldwin's harassment. This was the first time that Murphy informed any Department supervisor that she was being sexually harassed by Baldwin. Baldwin's harassment of the Plaintiffs ended that day.

Baker reported Murphy's complaint to Chief Wickenhauser the following day, November 6th. Wickenhauser interviewed Murphy that day, and, along with describing the incident that had given rise to her complaint, she discussed Baldwin's prior harassment. After the interview, Wickenhauser contacted Baldwin and instructed him not to enter the communications area or have contact with any communications personnel until further notice. Wickenhauser then began an investigation of Murphy's complaint.

Wickenhauser's investigation consisted of interviewing Baldwin, Wagner, and Baker as well as Lieutenant Richard Wooten, Detective Chris Schmitz, Det. Norman, and Officer Richard Bonney. Wickenhauser informed some of the interviewees that they should consider retaining an attorney because Baldwin could sue them for slander. Several of the interviewees reported having witnessed Baldwin acting inappropriately toward four female employees: Murphy, Weger, Kristin Goin, a communications officer, and Pat Allison, who had served as the civilian supervisor for the

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communications department since 2001. In addition, Wagner, Schmitz, and Norman reported hearing other unnamed employees refer to Baldwin as "Captain Tickles" and "Tickle Me Elmo," which they believed grew out of his propensity for tickling females employees. Wickenhauser, Baker, and Wooten stated that they were not aware of Baldwin's nicknames.

Wickenhauser also interviewed all communications personnel. Allison and Goin denied that Baldwin had harassed them; however, Weger substantiated Murphy's claims, informing Wickenhauser that Baldwin tried to hug her and had touched or rubbed her shoulders, neck, and arms on many occasions. Weger joined Murphy in her complaint. With regard to Baldwin's nicknames, Allison and Weger were not aware of them. However, Murphy had heard Department employees refer to Baldwin as "Captain Tickles" and "Tickle Me Elmo" intermittently.

About two weeks later, on November 19th, Wickenhauser completed his investigation, finding that Baldwin had not unlawfully sexually harassed Murphy or Weger. Rather, Wickenhauser determined that Baldwin touched the shoulders and arms of both male and female employees in a nonsexual manner when engaging in conversation with them, and that, though the touching was meant to be nonsexual, Murphy and Weger found it offensive. Although Wickenhauser refused to provide Plaintiffs with the results of his investigation, he shared this information with Baldwin, including the names and statements of the witnesses. Additionally, Wickenhauser issued a memorandum to Baldwin providing that: (1) though Baldwin had not engaged in unlawful harassment, the aforementioned touching offended some individuals; (2) the touching violated the Department's antiharassment policy; (3) Baldwin should, in the future, refrain from touching any Department employee; and (4) any future substantiated accounts of Baldwin's violation of the policy or retaliation against Plaintiffs or anyone involved in the investigation would result in his termination. Additionally, Baldwin was permanently removed as Plaintiffs' supervisor but remained their superior within...

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