Stewart v. Rise, Inc.

• Decision Date: 30 June 2015
• Docket Number: No. 13–3579.,13–3579.
• Citation: 791 F.3d 849
• Parties: Bernadine STEWART, Plaintiff–Appellant v. RISE, INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

791 F.3d 849

Bernadine STEWART, Plaintiff–Appellant

v.RISE, INC., Defendant–Appellee.

No. 13–3579.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 12, 2014.

Filed: June 30, 2015.

Rehearing and Rehearing En Banc Denied Aug. 5, 2015.

Stephen Charles Fiebiger, Burnsville, MN, for Plaintiff–Appellant.

Michael Dennis O'Neill, argued, Pamela M. Harris, on the brief, St. Paul, MN, for Defendant–Appellee.

Before MURPHY, MELLOY, and BENTON, Circuit Judges.

Opinion

MELLOY, Circuit Judge.

Bernadine Stewart sued her employer, Rise, Inc., alleging a hostile work environment and discriminatory termination based on a combination of race, sex, and national-origin discrimination. She also alleged retaliatory termination under federal and state law. Stewart, an American-born African–American woman, alleges specifically that a group of her subordinates, consisting largely of male, Somali-born immigrants, created the hostile work environment. She also alleges her own supervisors ignored her complaints for assistance, denied her the authority to terminate the offending employees, allowed the hostile environment to persist, and eventually terminated her employment as an act of discrimination and retaliation. The district court granted summary judgment for Rise. We reverse and remand as to the hostile work environment claim but affirm in all other respects.

In doing so, we note the unusual nature of this case involving allegations of prohibited-animus hostility from subordinates towards an immediate supervisor with that hostility possibly tolerated by higher-level supervisors. There is no dispute that the workplace at issue involved people engaging in outrageous behavior. Rather, the dispute exists as to what Stewart reported up the chain of command and whether the reported conduct rose to the level of actionable hostility.

I. Background

A. General Background

From January 2007 through March 2012, Stewart served as supervisor of a branch office for Rise, a welfare-services non-profit entity in the Twin Cities. Rise helped people enter the workforce by providing assistance such as help with paperwork and funding to secure childcare and transportation. Rise obtained funding from a Minnesota welfare program named the Minnesota Family Investment Program (also referred to as “Pathways”). Stewart's duties included the supervision of counselors who directly assisted clients.

Stewart's own performance was measured in part by the relative workforce participation rate for her office's clients compared to clients of other Pathways organizations. Throughout Stewart's employment, other offices closed, a state-government shut-down occurred, and workloads from different offices were consolidated. These events resulted in increased work for her office without a commensurate increase in staffing. When Stewart began working at Rise, the workforce participation rate among clients was at a generally acceptable level.¹ By the time she was terminated, her office was second or third to last out of more than twenty similar offices in the Twin Cities.

Stewart's predecessor and successor in the supervisor position for her branch office both were American-born African–American women. Stewart's own supervisor, Truc Pham, worked out of a different Rise office and visited Stewart's branch for weekly staff meetings. Mary Stransky served as Rise's human resources director and, like Pham, did not work primarily in Stewart's branch office.

Stewart claims several male, Somali-born subordinates created a hostile work environment through sexist, racist, and nationalist comments and through physical violence and intimidation, all due to the fact that Stewart was an American-born African–American woman. The employees Stewart identifies as creating the hostile work environment include Abdi Haid, Youssouf Robleh, Abdisalon Abdirahman, Yasin Jama, and Stephanie Ableiter (a caucasian woman)² . In support of her claims, Stewart relies on her own statements as presented in her affidavit, deposition testimony, and answers to interrogatories. She also relies on the deposition testimony, exit interview, and EEOC charge of Assata Damani, an American-born African–American woman. Damani worked at Stewart's Rise branch and resigned in March 2011, about a year before Stewart's termination. Damani alleged harassment by her male co-workers at a level that made her fear for her personal safety. We address in detail below the alleged instances of harassment.

In January 2012, Rise received an EEOC complaint from Damani. Around this time, Stewart was out of the office when Pham held a meeting with Stewart's staff. According to Pham and Stransky, the staff complained about Stewart's management style and Pham and Stransky believed there had been a complete breakdown in management and morale at the office. Pham asserts that he was concerned about the office's poor workforce participation rate and the possible loss of funding. Pham, Stransky, and Pham's supervisor, Donald Lavin, assert that they made the decision to terminate Stewart's employment. Pham and Stransky claim to have prepared a termination memo on January 23 or 24 that cited a steadily declining workforce participation rate as the reason for termination. The memo, which is part of the record in this appeal, lists January 27 as the termination date.

Before they delivered the memo to Stewart, however, Stewart's mother died and Stewart requested FMLA leave. In response, Pham and Stransky withheld the memo and granted the leave. Stewart worked on an intermittent basis for a few weeks and returned to mostly full-time work in late February 2012. While on FMLA leave, Stewart filed an EEOC complaint alleging a hostile work environment. Rise received the EEOC complaint prior to firing Stewart but after Pham and Stransky created the January 2012 memo.

According to Pham and Stransky, after Stewart had been back in the job and appeared to no longer require FMLA leave, they terminated her employment on March 12, 2012. A termination memo they provided to Stewart was essentially the same as the January 2012 memo but with additional details regarding the branch office's relative workforce participation rate.

Stewart eventually sued, asserting claims of hostile work environment, discriminatory termination, and retaliatory termination. She did not assert an FMLA-related claim. In describing the workplace environment, Stewart states that she reported instances of harassment to Pham and Stransky verbally. Pham largely denies that Stewart made such reports, whereas Stranksy admits Stewart made reports. Some reported conduct on its face shows an animus based on race, sex or national origin; other reported conduct does not. Stewart admits she did not expressly label or identify all reported conduct as discriminatory.

The instances of harassment Stewart claims to have reported verbally to Pham or Stransky (or which Stewart claims they knew of through other sources) include³ :

1. Haid, Robleh, and Jama openly called Stewart a bitch. Jama regularly called Stewart a bitch.

2. Robleh and Haid called Damani a bitch, screamed at Damani, and slammed doors in her face.

3. Haid said, “African American women are bitches and that's why nobody likes you.”

4. Haid and Robleh said African–American women have no value.

5. Haid yelled at Stewart, “F* *k you, everyone around here does not like you.”

6. Robleh stood in the doorway to Damani's office with his pants unzipped. When Damani and another woman asked Haid to say something to Robleh, Robleh and Haid spoke in Somali and smiled, but Robleh did not correct the problem.

7. Haid threw a case file at Stewart with enough force to push a phone book across her desk while screaming he would not take directions from her. Damani reported the incident to Pham, describing the incident as Haid throwing a book at Stewart's head. Damani also stated that Haid admitted the incident occurred and that Haid said he would do it again. Stewart reported the incident to Stransky, who told Stewart she was “making a mountain out of a molehill.” Stewart asked for Haid to be fired after the incident. Pham failed to fire Haid, and Stewart felt unable to have a subordinate discharged.

8. When Stewart would wear black clothing, Jama commented on her clothes asking if she was “looking for a husband or a man?” Robleh told Stewart and Damani, “women who wear black need a man” and also stated, “are you looking for a husband? Those are colors that you wear when you look for a man.”

9. An audit of Robleh's files revealed forged client signatures and resulted in a requirement that Stewart sign Robleh's files. In response, Robleh stated of the female auditor that if he could get his “hands around her neck he would have choked her to death.” And Haid described the female auditor, stating, “She's just a white woman; she doesn't know what she's doing.”

10. Robleh's applications for clients' childcare became so poor that a county worker who reviewed the applications refused to take them without Stewart's review. Robleh then stated repeatedly in the office that he wanted to beat the county worker to death. He also stated his applications would not go through because Stewart and Damani were having an affair with the county worker, “a white man.” Damani complained about the threats to Pham, but Pham denied she made such complaints. Later, at a staff meeting, someone raised Robleh's threats, and Pham called them “inappropriate.” Stransky admitted learning of Robleh's complaints, but Stransky characterized them as “just part of the job.”

11. Abdirahman entered Stewart's office and stood over her in an intimidating manner. Pham instructed Abdirahman not to meet in Stewart's office.

12. Robleh, Haid and Jama refused to answer phones, describing the task as “women's work.”

13. After a cut in funding, janitorial service was reduced. Stewart developed a rotating schedule for workers to clean the bathroom, but the male counselors refused, calling it “women's work.” When Stewart

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