Cheshewalla v. Rand & Son Const. Co.

• Decision Date: 19 July 2005
• Docket Number: No. 04-3199.,04-3199.
• Citation: 415 F.3d 847
• Parties: Monika CHESHEWALLA, Aaron Paul Michaels, Robert J. Petkoff, Appellants, v. RAND & SON CONSTRUCTION COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

415 F.3d 847

Monika CHESHEWALLA, Aaron Paul Michaels, Robert J. Petkoff, Appellants, v. RAND & SON CONSTRUCTION COMPANY, Appellee.

No. 04-3199.

United States Court of Appeals, Eighth Circuit.

Submitted: April 15, 2005.

Filed: July 19, 2005.

COPYRIGHT MATERIAL OMITTED

R. Pete Smith, argued, Kansas City, MO, for appellant.

Elizabeth Drill Nay, argued, Kansas City, MO, for appellant.

Before WOLLMAN, HANSEN, and RILEY, Circuit Judges.

WOLLMAN, Circuit Judge.

Monika Cheshewalla, Aaron Michaels, and Robert Petkoff appeal from the district court's¹ grant of summary judgment on their Title VII employment-related claims. See 42 U.S.C. § 2000e et seq. Cheshewalla asserts sexual harassment and retaliation claims, while the latter two plaintiffs assert only retaliation claims. We affirm.

I.

Rand & Son Construction Company (Rand) provides construction services for various client companies, including Allied Honeywell (Honeywell), a defense contractor. Rand employees working at Honeywell were required to have a badge for security purposes. A red badge indicated that the individual was "uncleared," or lacked security clearance, and therefore had to be accompanied by a security guard. A yellow or blue badge indicated that the individual was cleared. The process of obtaining such clearance was complicated and could take up to eighteen months. In the event of a reduction in force, Honeywell preferred that Rand retain employees with blue or yellow badges over those with red badges. The plaintiffs, Rand employees, were assigned to Honeywell's maintenance project. Most Rand employees working at Honeywell were either carpenters or laborers. Michaels and Petkoff were hired in 2000, the former as a carpenter apprentice and the latter as a carpenter. Cheshewalla was hired as a laborer in the same year. All three plaintiffs were uncleared, having only red badges.

Since approximately 1995, Michael Gibbins served as foreman for the laborers at Honeywell, while Danny Franks served as the foreman for the carpenters. In these capacities, Franks indicated to Gibbins the work to be performed by the laborers. Dave Burke, the lead foreman stationed at the site, was above Franks and Gibbins in the chain of command. Ernest Patires, Rand's Vice President, served as the project manager for the Honeywell site, but was not stationed there.

On November 3, 2000, two female Honeywell employees reported to Linda Christian, Rand's EEO Officer, that one of Rand's employees was exposing himself to women. Christian's investigations led her to believe that Cheshewalla was being subjected to this behavior, and she contacted Cheshewalla and the three other female laborers working at Honeywell to obtain more information. Cheshewalla denied that anything had happened to her, but expressed her fear that she ran the risk of being fired by talking to Christian. Christian told Cheshewalla that she would not be fired for speaking to her. Christian did not learn who was exposing himself, and none of the women stated that they had been subjected to this display. Christian closed the file on this issue on November 16, 2000. Approximately three days later, a man, now known to be Petkoff, anonymously telephoned Christian and stated that Gibbins was harassing women. Petkoff did not specify which women or what Gibbins was doing to harass them. Gibbins was transferred to another job site the day of the telephone call. Petkoff and Michaels later complained about Gibbins's conduct to Burke, Franks, Christian, and Patires.

On approximately January 8, 2001, Gibbins was reassigned to the Honeywell site. On January 11, Christian heard rumors that Gibbins had been asking Cheshewalla for a date and that they were driving to work together. Hours later, Gibbins reported to Christian that he had heard rumors that he had sexually harassed Cheshewalla. The next day, Petkoff confronted Gibbins about Gibbins's treatment of Cheshewalla, and the labor union registered a sexual harassment complaint by Cheshewalla against Gibbins. The labor union's business agent, Les Williams, attempted to meet with the people involved, but Cheshewalla failed to attend. Gibbins was once again transferred from the Honeywell site, never to return. On January 16, Cheshewalla met with Christian and Patires, and told them that Gibbins had been harassing her.

It is undisputed that the need for layoffs in the maintenance project arose in January of 2001. Rand's business is cyclical. The workload is lowest at the beginning of each year when the funding for government contracts has yet to be received. Therefore, layoffs commonly arose each year at this time. Michaels and Petkoff were laid off on January 29. Cheshewalla missed work on the last two days of January and on seven days in early to mid February. On February 16, the last of these nine days of absence, Patires informed Cheshewalla by telephone that she had been laid off.

II.

We review de novo the district court's grant of summary judgment. Shanklin v. Fitzgerald, 397 F.3d 596, 602 (8th Cir.2005). We view the evidence in the light most favorable to the non-moving party and conclude that summary judgment was proper only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.; Fed.R.Civ.P. 56(c).

Cheshewalla claims that she was subjected to a hostile work environment on the basis of sexual harassment by Gibbins. To establish a hostile work environment claim, Cheshewalla "must show that she was subjected to unwelcome sex-based harassment that was sufficiently severe or pervasive to alter a term, condition, or privilege of her employment." Joens v. John Morrell & Co., 354 F.3d 938, 940 (8th Cir.2004). Assuming, arguendo, that the alleged harassment was sufficiently severe to state a claim of hostile work environment, we turn to the question whether Gibbins is properly considered a co-worker or a supervisor. If the former, Cheshewalla must also show that Rand "`knew or should have known of the conduct and failed to take proper remedial action.'" Id. (quoting Dhyne v. Meiners Thriftway, Inc., 184 F.3d 983, 987 (8th Cir.1999)). If the latter, Rand "is vicariously liable for the harassment unless it can establish the affirmative defense defined in Burlington Indus., Inc. v. Ellerth." Joens, 354 F.3d at 940; Faragher v. City of Boca Raton, 524 U.S. 775, 807-08, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (noting that the affirmative defense is available only when no tangible employment action is taken). Because we conclude that Gibbins was not a supervisor, we do not discuss the affirmative defense.

In Joens, we held that to be considered a supervisor, "the alleged harasser must have had the power (not necessarily exercised) to take tangible employment action against the victim, such as the authority to hire, fire, promote, or reassign to significantly different duties." Joens, 354 F.3d at 940. See also Weyers v. Lear Operations Corp., 359 F.3d 1049, 1057 (8th Cir.2004). Gibbins, as foreman, could not hire, fire, or promote the laborers, nor could he assign them to a different job site. Patires possessed this authority and although he may have consulted with Gibbins on such matters, the record is clear that Gibbins lacked any such authority. Cf. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 747, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (where the alleged harasser was "a midlevel manager[,] ... was a vice president in one of five business units[, and] ... had authority to make hiring and promotion decisions subject to the approval of his supervisor"); Faragher, 524 U.S. at 807, 118 S.Ct. 2275 (discussing vicarious liability of the employer for harassment by a supervisor "with immediate (or successively higher) authority over the employee"). The fact that Patires was not present at the Honeywell site is irrelevant under the definition of supervisor established in Joens. Finally, Cheshewalla's belief that Gibbins possessed the authority of a supervisor does not alter our conclusion in this case. See Weyers, 359 F.3d at 1057 n. 7 (noting that the alleged harasser's "apparent authority would be an insufficient basis to support a finding of supervisor status").

Because Gibbins is considered a co-worker under the test set forth in Joens, Cheshewalla's claim is without merit unless she can demonstrate that Rand knew or should have known of the harassment and failed to take proper remedial action. See Dhyne, 184 F.3d at 987. The record demonstrates that Rand attempted to determine at the outset what, if any, harassment was...