Moylan v. Maries County

Decision Date09 June 1986
Docket NumberNo. 84-2052,84-2052
Citation792 F.2d 746
Parties40 Fair Empl.Prac.Cas. 1788, 40 Empl. Prac. Dec. P 36,228 Charlotte P. MOYLAN, Appellant, v. MARIES COUNTY; Milfred French, Sheriff, individually and as Sheriff of Maries County, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Jeanne Knowles Townsend, St. Louis, Mo., for appellant.

Albert Crump, Vienna, Mo., for appellees.

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

McMILLIAN, Circuit Judge.

Charlotte Moylan appeals from a final judgment entered in the District Court for the Eastern District of Missouri in favor of Maries County and Sheriff Milfred French in an action brought under 42 U.S.C. Sec. 2000e et seq. (1982) (Title VII) and 42 U.S.C. Sec. 1983 (1982). The jury returned a verdict in favor of Maries County and Sheriff French on appellant's Sec. 1983 claim. The district court held that appellant failed to establish a Title VII sexual harassment claim because she failed to prove "any requirement of participation in the alleged sexual activities as a condition of her employment." Moylan v. Maries County, No. 82-0417C(3), slip op. at 6 (E.D.Mo. June 26, 1984). For reversal, appellant argues that the district court erred (1) in failing to consider her Title VII claim based on a sexually hostile work environment, (2) in failing to declare a mistrial on the Sec. 1983 claim because of improper and prejudicial opening statements by defense counsel, and (3) in failing to hold Maries County liable under Title VII and Sec. 1983 for the actions of Sheriff French. For the reasons discussed below, we affirm the judgment of the district court on the Sec. 1983 claim and reverse the judgment of the district court on the Title VII claim and remand the Title VII claim for further proceedings consistent with this opinion.

Prior to August 1980 the Maries-Osage Ambulance District entered into a contract under the Comprehensive Employment and Training Assistance Act (CETA), which contract authorized the employment of persons by the ambulance district to work as dispatchers. The ambulance district subsequently entered into an agreement with Sheriff French, the elected sheriff of Maries County, Missouri. According to this agreement, three dispatchers were placed in the sheriff's office in the Maries County courthouse where they operated the dispatching equipment. Persons employed in these positions had to meet certain income guidelines. The ambulance district paid the dispatchers and was reimbursed for those wages through the CETA program.

In August 1980 appellant applied for employment as a dispatcher. Based on the information in her application, the Division of Employment Security determined that appellant was eligible for the CETA program and authorized her employment in the position of dispatcher. Appellant commenced work on September 5, 1980.

Appellant testified that during her employment in the sheriff's office Sheriff French made numerous sexual advances, which were neither solicited by her nor welcomed by her. On October 15, 1980, appellant and Sheriff French engaged in sexual intercourse at the Maries County courthouse. Appellant asserts that she was raped. Appellant testified that she accompanied Sheriff French to a prisoner's cell to provide the prisoner with medication. On the way back to the sheriff's office, Sheriff French "trapped" her on the couch in the office forcing himself on top of her and partially removing her clothes. Appellant testified that she did not scream because there was no one to provide assistance. She begged Sheriff French not to force himself on her. She also asked him to allow her to remove her boots, which she testified was a ploy to give herself time to think. After appellant had removed one boot, Sheriff French again placed himself on top of her and completed the act of intercourse.

Appellant did not immediately report the incident. Sometime subsequent to the incident, appellant did consult a Catholic priest. The priest did not recall the date that appellant consulted him; appellant testified that it was the following day. The priest testified that appellant told him about the alleged rape and asked for his advice.

On October 26, 1980, approximately ten days after the alleged rape, appellant was working the midnight to noon shift. When Sheriff French entered the office mid-morning, appellant became upset; she subsequently refused to respond to his radio messages after he left the office. She finally did accept a radio call from Sheriff French. In response to Sheriff French's question during this call, she stated that she did not wish to talk with him and would like to leave. She then left the office.

On October 28, 1980, before appellant was due to work again, she received a call at home from Sheriff French informing her that she had been terminated from the CETA program because she had failed to report all her income on her application. The Division of Employment Security had informed Sheriff French that appellant did not meet the eligibility criteria for the CETA program because she had failed to report income. On March 11, 1981, appellant pled guilty to a misdemeanor charge of making false statements to obtain benefits under the CETA program. Appellant does not dispute that her discharge was for a proper nondiscriminatory reason.

In January 1981 appellant complained to the prosecuting attorney of Maries County, Missouri, that Sheriff French had raped her in October 1980. As a result of the complaint, a special prosecutor was appointed. The special prosecutor later determined that no criminal action should be filed.

In March 1981 appellant filed a complaint with the Missouri Commission On Human Rights (Commission) alleging sexual discrimination and constructive discharge. The Commission made a finding of no probable cause because it was undisputed that appellant had falsified her employment application and was ineligible for the CETA position. The Equal Employment Opportunity Commission (EEOC), relying on the Commission's finding, issued a right-to-sue letter on January 19, 1982. On March 10, 1982, appellant filed the present sex discrimination action in forma pauperis in the District Court for the Western District of Missouri. The cause was later transferred to the Eastern District. On December 23, 1982, appellant filed an amended complaint and for the first time named Maries County as a defendant in the lawsuit.

Appellant's Sec. 1983 claim was presented to a jury on December 1, 1983. The jury returned a verdict in favor of Sheriff French and Maries County. Thereafter, the district court rendered a judgment in favor of Sheriff French and Maries County on the Title VII claim. This appeal followed.

Appellant initially argues that the district court erred in failing to consider and rule on her claim of a Title VII violation based on the existence of a sexually hostile work environment. Appellant argues that the district court erroneously considered only her claim that she had been terminated because of her complaint of sexual harassment. On this latter claim, the district court found that appellant did not establish that submission to sexual harassment was a condition of her employment. Moylan v. Maries County, slip op at 6. The district court further found that appellant did not establish that the reason given for her termination--falsification of income on the employment application--was pretextual. Id. at 7.

Appellees argue that appellant raises for the first time on appeal the claim based on a sexually hostile work environment. Appellees argue that appellant's petition, evidence at trial, and verdict-directing instruction concern a discriminatory or retaliatory discharge and do not concern a sexually hostile environment.

After a careful review of the record in this case, we hold that appellant's claim of a sexually hostile work environment was before the district court. Appellant's complaint alleged that "Sheriff Milfred French repeatedly came into the dispatcher's office during plaintiff's hours and sexually harassed the plaintiff by attempting to kiss her, put his arms around her, fondle her." Appellant testified to the same during the trial.

This court has not previously considered whether an allegation of a sexually hostile work environment states a claim under Title VII. Other courts, however, have so held. In Bundy v. Jackson, 641 F.2d 934, 943-45 (D.C.Cir.1981), the court held that a discriminatory work environment was a violation of Title VII because it constituted sex discrimination with respect to the "terms, conditions or privileges of employment." The court stated that unless Title VII was extended to such actions, an "employer could sexually harass a female employee with impunity by carefully stopping short of firing the employee or taking any other tangible action against her in response to her resistance." Id. at 945; see Katz v. Dole, 709 F.2d 251 (4th Cir.1983); Henson v. City of Dundee, 682 F.2d 897, 902-05 (11th Cir.1982); Robson v. Eva's Super Market, Inc., 538 F.Supp. 857, 860-63 (N.D.Ohio 1982).

Those courts which have considered a sexually hostile work environment to be in violation of Title VII have relied heavily on the "Final Guidelines On Sexual Harassment In The Work Place" (Guidelines) issued by the Equal Employment Opportunity Commission. 29 C.F.R. Sec. 1604.11(a), (f) (1981). The Guidelines state: "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when ... such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." 29 C.F.R. Sec. 1604.11(a) (1981); see Bundy v. Jackson, 641 F.2d at 946. The Eleventh Circuit in Henson v. City of Dundee, 682 F.2d at 903-05, identified five...

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