Cronquist v. City of Minneapolis

• Decision Date: 16 October 2000
• Docket Number: No. 00-1089,00-1089
• Citation: 237 F.3d 920
• Parties: (8th Cir. 2001) GAIL L. CRONQUIST, APPELLANT, v. CITY OF MINNEAPOLIS, APPELLEE. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 920

237 F.3d 920 (8th Cir. 2001)

GAIL L. CRONQUIST, APPELLANT, v. CITY OF MINNEAPOLIS, APPELLEE.

No. 00-1089

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: October 16, 2000

Filed: February 6, 2001

Appeal from the United States District Court for the District of Minnesota. [Copyrighted Material Omitted] Before McMILLIAN, Heaney, and Bowman, Circuit Judges.

Bowman, Circuit Judge.

Gail Cronquist, a former officer with the Minneapolis Police Department (MPD), sued the City of Minneapolis under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2, 2000e-3 (1994), the Minnesota Human Rights Act (MHRA), Minn. Stat. Ann. 363.03 (West 1991), and the First and Fourteenth Amendments after the City disciplined her and eventually terminated her employment following several instances of harassment of her subordinates. Cronquist alleged that the City's disciplinary justification was pretext and that her employment was terminated because of sex discrimination and retaliation for an earlier lawsuit she brought against the City. The District Court ¹ granted summary judgment to the City on all claims and Cronquist appeals. We affirm.

I.

Cronquist first joined the MPD in 1983, and was promoted to Sergeant in 1991. In 1991, Cronquist sued the City in Minnesota state court alleging that she had been sexually harrassed by her supervisor, Lieutenant Richard Storck. The matter settled out-of-court in 1994, and under the terms of the settlement Cronquist received $200,000 and other relief, which included the right to laterally transfer twice within four years of the settlement agreement.

Later in 1994, Cronquist exercised her right to transfer and moved from the Child Abuse Unit to the Backgrounds Unit. Cronquist's original supervisor in the Backgrounds Unit was Lieutenant David Martens, but in January 1995, Captain William Berg became her supervisor. During Cronquist's tenure in the Backgrounds Unit, she was the subject of a harassment complaint by one of her subordinates, officer Roger Brotkowski, who alleged that Cronquist had harassed him on the basis of his obesity. At the same time, Cronquist complained that Captain Berg had harassed her. The City investigated each complaint.

During the investigation of Cronquist's complaint against Captain Berg, she temporarily moved to an assignment as a shift supervisor in the Second Precinct. After Cronquist moved, a second officer in the Backgrounds Unit, officer Larry Swanson, came forward with a sexual harassment complaint against Cronquist.

At the conclusion of the City's investigation, Cronquist's complaint against Captain Berg was not sustained. Officers Brotkowski and Swanson's complaints against Cronquist were sustained. In determining an appropriate punishment for the sustained findings against Cronquist, the City deemed the "second" finding not grounds for termination under the City's harassment policy, as Cronquist had not been afforded an opportunity to correct her behavior. The City reprimanded Cronquist for her violations and referred her for supervisory training.

In December 1997, Cronquist sued the City, alleging that her punishment for the Brotkowski and Swanson complaints was motivated by gender and in retaliation for her successful 1991 sexual harassment suit. Specifically, the complaint alleged that three adverse actions against Cronquist provided evidence of discrimination: (1) the sustaining of officer Brotkowski's harassment complaint against Cronquist and the resulting discipline; (2) the dismissal of Cronquist's sex discrimination and sex harassment complaint against Captain Berg; ² and (3) the sustaining of officer Swanson's sexual harassment complaint against Cronquist and the resulting discipline.

In January 1998, the MPD lodged a third harassment complaint against Cronquist, made by officer John Lenart, a subordinate whom Cronquist supervised in the Second Precinct. Lenart's complaint alleged numerous sexually frank remarks by Cronquist as well as inappropriate touching. ³ The MPD investigated this complaint and found it to have merit. The MPD, considering the Lenart complaint as well as the earlier Brotkowski and Swanson complaints, terminated Cronquist's employment.

Cronquist subsequently amended her lawsuit against the City to include the claim that her discharge from the MPD was motivated by retaliation and gender discrimination. The District Court granted summary judgment to the City, holding that Cronquist failed to produce evidence showing that the City's non-discriminatory reason for terminating her--multiple instances of harassment--was pretextual. The District Court also held that Cronquist's evidence that she was treated differently than similarly-situated male police officers was insufficient and that she failed to establish an inference that decisionmakers in her disciplinary processes had either discriminated or retaliated against her. Cronquist appeals, arguing that the District Court erred in failing to apply a mixed-motive analysis to her claims, failing to link the adverse action taken against her to the filing of her discrimination charges, and granting summary judgment when a material issue of fact existed regarding whether the City's reason for her termination was pretextual.

On appeal, we review the District Court's grant of summary judgment de novo and apply the same standards as the district court. Rothmeier v. Inv. Advisers, Inc., 85 F.3d 1328, 1331 (8th Cir. 1996). 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 nonmoving party is entitled to judgment as a matter of law. Fisher v. Pharmacia & Upjohn, 225 F.3d 915, 919 (8th Cir. 2000); Fed. R. Civ. P. 56(c).

II.

Two avenues exist by which a plaintiff can attempt to prove intentional employment discrimination. First, a plaintiff can proceed under the three-stage, burden-shifting standard set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See also Tex. Dep't of Com. Affairs v. Burdine,450 U.S. 248, 252-53 (1981). Under this framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. Rothmeier, 85 F.3d at 1332. Once a prima facie case is established, a rebuttable presumption shifts the burden to the employer to articulate a legitimate, nondiscriminatory reason for discharging the employee. Id. If the employer articulates such a reason, the presumption disappears and the plaintiff bears the burden of proving that the employer's proffered reason is merely a pretext for discrimination. Id.

Alternatively, the plaintiff can rely upon the standard set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), if the plaintiff produces direct evidence that an illegitimate criterion, such as gender, "played a motivating part in [the] employment decision." Id. at 258. Once the plaintiff establishes such direct evidence, the burden shifts to the employer to demonstrate by a preponderance of the evidence that the employer would have reached the same employment decision absent any discrimination. Id. If the employer fails to meet this standard, the employee prevails.

Cronquist first argues that the District Court failed to recognize direct evidence of discrimination and erred by analyzing her discrimination claims under McDonnell-Douglas, and not the "mixed-motive" standard of Price Waterhouse. This argument, however, is not properly before us. Cronquist never argued to the District Court that her case was governed by the Price Waterhouse standard. Despite the City's primary reliance on McDonnell Douglas in its memorandum supporting summary judgment, Cronquist's memorandum opposing summary judgment failed to cite either Price Waterhouse or McDonnell Douglas, nor did it present argument in support of any particular legal standard by which her claims should be adjudicated. Cronquist also failed to raise the mixed-motive theory in her complaint, in her statement of the case, during oral argument on the summary judgment motion, or in any written or oral submission to the District Court. In the face of Cronquist's complete silence on the issue, the District Court reasonably assumed that "the parties appear to agree that [for purposes of the summary judgment motion] the sequence and allocation of proof for each claim should be governed by the Supreme Court decision in McDonnell Douglas Corp. v. Green." Order at 3. We hold that by failing to raise the mixed-motive argument in the District Court, Cronquist has waived the issue. See Singleton v. Wulff, 428 U.S. 106, 120 (1976) ("It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below."); Moad v. Ark. State Police Dep't, 111 F.3d 585, 587 (8th Cir. 1997) ("We have examined the record carefully and we find no evidence that this issue was ever raised in the district court. . . . We therefore decline to consider the issue . . . ."); Smith v. City of Des Moines, Iowa, 99 F.3d 1466, 1473 (8th Cir. 1996) ("We will not reverse a grant of summary judgment on the basis of an argument not presented below."); O.R.S. Distilling Co. v. Brown-Forman Corp., 972 F.2d 924, 926 (8th Cir. 1992) ("A party may not assert new arguments on appeal of a motion for summary judgment.").

In any event, even if Cronquist had raised the mixed-motive issue in the District Court and preserved it for appeal, it has no merit inasmuch as Cronquist has not presented any direct evidence of discrimination or retaliation. See Price Waterhouse, 490 U.S. at 277 (O'Connor, J., concurring) (defining direct evidence negatively to exclude "stray remarks in the workplace," "statements by nondecisionmakers," and "statements by decisionmakers unrelated to the decisional process itself."). This Circuit has clarified the Price Waterhouse standard by holding that direct evidence is "evidence of conduct or...