Breeding v. Arthur J. Gallagher and Co.

• Decision Date: 15 January 1999
• Docket Number: No. 98-1338,98-1338
• Citation: 164 F.3d 1151,1999 WL 13265
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 1322, 74 Empl. Prac. Dec. P 45,706 Sandra BREEDING, Appellant, v. ARTHUR J. GALLAGHER AND CO., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1151

164 F.3d 1151

78 Fair Empl.Prac.Cas. (BNA) 1322,

74 Empl. Prac. Dec. P 45,706

Sandra BREEDING, Appellant, v. ARTHUR J. GALLAGHER AND CO., Appellee.

No. 98-1338.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 25, 1998.

Decided Jan. 15, 1999.

Marc D. Spector, Clayton, MO, argued, (Samuel H. Liberman, on the brief), for Appellee.

Stefan Joseph Glynias, St. Louis, MO, argued (Lisa A. Green, on the brief), for Appellee.

Before RICHARD S. ARNOLD, BEAM, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

Sandra Breeding appeals the district court's grant of summary judgment in favor of Arthur J. Gallagher and Co. (Gallagher) in this employment discrimination case. We affirm in part and reverse in part.

I.

Viewing the evidence in the light most favorable to Ms. Breeding, as we must in this summary judgment context, the record includes the following: Gallagher hired Ms. Breeding as a Customer Service Representative (CSR) in 1986. She was 42 years old at that time. In 1990, the company purchased another firm and integrated a large number of managers from the newly acquired firm into Gallagher's existing business, including Don Chase and Sandy Gross who became Ms. Breeding's new supervisors. Other supervisors in the hierarchy above Ms. Breeding during the relevant time period were Joel Caveness, Lance Carlson, and James Agnew. Ms. Breeding contends that from that point on, the company developed a hostile atmosphere of discrimination in which she was often yelled at and unfairly criticized. On her 1990 performance evaluation, she wrote that she felt she was being singled out because she was the oldest CSR. (Appellant's App. at 145.) She complains that supervisors Caveness and Carlson failed to address this concern and even asked her to take back the statement.

Ms. Breeding contends that her supervisor, Don Chase, used offensive language, made sexually inappropriate comments, and fondled his genitals in front of her on a continuous basis. In her deposition testimony, she asserts that she "talked to Sandy [Gross] about it, and she said that is just the way he is." (Id. at 64.) Ms. Breeding complains that Chase treated young, attractive CSRs more favorably than he treated her. Ms. Breeding also asserts that Chase denied her a promotional opportunity by hiring a young male, John Bickel, instead of Ms. Breeding to fill the position of Ms. Debbie Ferger, a woman for whom Ms. Breeding had done some work in the past. Ms. Breeding was required to do work for Bickel from time to time, but she was unable to get along well with him. Ms. Breeding contends that Mr. Chase yelled at her for not getting along with Bickel. Once in 1992, he told her he thought the reason Ms. Breeding and Mr. Bickel did not get along was that Ms. Breeding was old enough to be Bickel's mother.

Ms. Breeding contends that she was denied raises from 1992 until her resignation in 1995. She states that she is unaware of any other CSR who did not receive yearly raises, but the record shows that she was not evaluated in 1993 and that 15 others were also denied raises in 1994. Ms. Breeding complains that she was held to a stricter performance level than other younger CSRs. She contends that she was treated severely for committing minor typographical and accounting errors, for her lack of knowledge about the insurance business, and for her trouble handling various computer programs. She complains that she was denied training and did not have a computer until her last six months on the job. She says her supervisors' conduct was not merely critical, but demeaning and threatening, and that the younger employees were given more training and more opportunities.

Ms. Breeding presents affidavits of other CSRs, who assert they were also subject to a discriminatory atmosphere and felt that the company was hostile toward women. One CSR asserted that Area President James Agnew met with the CSRs once a year to ask how the company could make things better at work, and while many complained about treatment by their managers and supervisors (including Don Chase), Agnew failed to investigate or seek to remedy their complaints. She also overheard Joel Caveness say that he had "hired one CSR because she had nice legs." (Appellant's App. at 102.)

In a meeting on July 14, 1995, Ms. Breeding says Sandy Gross and Joel Caveness confronted her with and berated her for her typing errors and for not getting along with certain people. She asserts that at one point, Caveness asked, " 'How much longer do you want to work? ... [W]e know you are old and you are not going to be here that much longer.' " (Appellant's App. at 71.) She left the meeting in tears and returned the following Monday with her resignation letter. In the letter, she stated that she was resigning due to "constant badgering" about typographical errors, bookkeeping errors, and personality conflicts; and because she was not properly trained, did not have an up-to-date computer terminal, and did not get a raise. Additionally, her resignation letter complained of Don Chase's statement that she was old enough to be Bickel's mother. Ms. Breeding's resignation letter concluded with the following statement: "I have had enough harrassment [sic] and discrimnation [sic] that my health can take [sic]." (Id. at 163.) After presenting this letter, she was escorted to her car by Sandy Gross, who said that "[s]he was told to do these things to [Ms. Breeding]." (Id. at 83.)

Ms. Breeding brought suit against Gallagher, alleging employment discrimination on the basis of her sex and age, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e)-2(a) (1994); the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a) (1994); and the Missouri Human Rights Act (MHRA), Mo. Ann. Stat. § 213.055 (West 1996). Specifically, she alleged discriminatory treatment, a hostile work environment, and constructive discharge due to intolerable working conditions. Gallagher moved for summary judgment, and the district court granted the motion, concluding that Ms. Breeding had not presented sufficient evidence to reasonably support her claims. Ms. Breeding appeals.

II.

We review de novo a grant of summary judgment, using the same standards as the district court applied. Lynn v. Deaconess Med. Ctr.-West Campus, 160 F.3d 484, 486 (8th Cir.1998). "Summary judgment is proper if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Id.; Fed.R.Civ.P. 56(c). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment seldom should be granted in discrimination cases where inferences are often the basis of the claim, and "summary judgment should not be granted unless the evidence could not support any reasonable inference" of discrimination. Lynn, 160 F.3d at 486-87.

Title VII makes it unlawful for an employer to discriminate against an employee on the basis of, among other things, the individual's sex. 42 U.S.C. § 2000e-2(a)(1). See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S.Ct. 998, 1001, 140 L.Ed.2d 201 (1998). The ADEA makes it unlawful for employers to discriminate on the basis of an individual's age if that individual is over 40 years old. 29 U.S.C. §§ 623(a)(1), 631(a). See also Denesha v. Farmers Ins. Exch., 161 F.3d 491, 497 (8th Cir.1998). "Our analysis is the same for both the state and federal claims because decisions under the various federal employment discrimination statutes are applicable and authoritative under the Missouri Human Rights Act as well as federal law." Finley v. Empiregas, Inc. of Potosi, 975 F.2d 467, 473 (8th Cir.1992) (internal quotations and citation omitted).

Ms. Breeding first contends that she has made out a submissible case of sex and age discrimination under either the direct evidence framework of Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), or the indirect evidence, burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). "When a plaintiff puts forth direct evidence that an illegal criterion, such as age [or sex], was used in the employer's decision to terminate the plaintiff," we apply the standards enunciated in Price Waterhouse v. Hopkins, as modified by § 107 of the Civil Rights Act of 1991, 42 U.S.C. § 2000e-2(m). Fast v. Southern Union Co., 149 F.3d 885, 889 (8th Cir.1998). Under this modified Price Waterhouse standard, a defendant is liable for discrimination upon proof by direct evidence that an employer acted on the basis of a discriminatory motive, and proof that the employer would have made the same decision absent the discriminatory motive is only relevant to determining the appropriate remedy. See id.

When a plaintiff is unable to put forth direct evidence of age or sex discrimination, we apply the burden-shifting analysis of McDonnell Douglas, which first requires the plaintiff to demonstrate a prima facie case of discrimination. Id. at 890, 93 S.Ct. 1817; see also Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1332 n. 5 (8th Cir.1996) (explaining that we apply this framework in both Title VII cases and in the ADEA context). The elements of a prima facie case are not inflexible and vary slightly with the specific facts of each case. Hindman v. Transkrit Corp., 145 F.3d 986, 990-91 (8th Cir.1998). Ms. Breeding must demonstrate (1) that she is within the protected class; (2) that she was qualified to perform her job; (3) that she suffered an adverse employment action; and (4) that nonmembers of her class (persons under 40 in the ADEA context or of the opposite gender in the Title VII sex discrimination context) were not treated the same. See Kneibert v. Thomson Newspapers, Michigan Inc., 129 F.3d 444,...