Eich v. Bd. of Regents for C.M. St. Univ.

• Decision Date: 04 December 2003
• Docket Number: No. 03-1288.,03-1288.
• Citation: 350 F.3d 752
• Parties: Deborah EICH, Plaintiff-Appellant, v. BOARD OF REGENTS FOR CENTRAL MISSOURI STATE UNIVERSITY, Department of Public Safety, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

350 F.3d 752

Deborah EICH, Plaintiff-Appellant, v. BOARD OF REGENTS FOR CENTRAL MISSOURI STATE UNIVERSITY, Department of Public Safety, Defendant-Appellee.

No. 03-1288.

United States Court of Appeals, Eighth Circuit.

Submitted: September 10, 2003.

Filed: December 4, 2003.

Rehearing and Rehearing En Banc Denied: January 26, 2004.

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Jonathan D. McQuilkin, argued, Columbia, MO, for appellant.

Michael S. Dodig, argued, Lee's Summit, MO (Christopher F. Arbuckle, on the brief), for appellee.

Before MELLOY, LAY, and SMITH, Circuit Judges.

LAY, Circuit Judge.

This is a case involving the question of human decency. The appeal involves a hostile work environment claim based on the sexual harassment of a female employee brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and the Missouri Human Rights Act, Mo. Rev.Stat. §§ 213.010-213.137.

Deborah Eich was employed by the Department of Public Safety for Central Missouri State University ("CMSU") as a detective sergeant. She filed suit against CMSU, alleging that she suffered from a hostile work environment due to sexual harassment by two co-workers, Brad Drake and Richard Gillespie. She also alleged that CMSU unlawfully retaliated against her for complaining about the harassment.

A jury found in Eich's favor on her hostile work environment sexual harassment claim and awarded her $200,000 in non-economic damages and $42,272.08 in economic damages. The jury also found in Eich's favor on her retaliation claim but did not award any damages. The district court granted CMSU's motion for judgment as a matter of law on Eich's sexual harassment and retaliation claims and set aside the jury's award of $42,272.08 in economic damages as not being supported by Eich's hostile work environment sexual harassment claim. In the alternative, the district court ordered that Eich must accept remittitur of the non-economic damages from $200,000 to $10,000 or CMSU was to be granted a new trial. Deborah Eich appeals. We reverse.

I. FACTS

Eich began working for the CMSU Department of Public Safety ("Department") as a dispatcher in 1984. In 1993, she was promoted to the position of detective sergeant. Brad Drake began working for the Department as a road patrol officer in 1987 and was promoted to the position of evening shift sergeant in July 2000. Richard Gillespie began working as police operations commander at the Department in 1993. Gillespie initially had an indirect supervisory role in relation to Eich, but he became her direct supervisor in May of 2000.

Eich first began experiencing problems with Drake in the late 1980s. Drake brushed up against her breasts during in-house training sessions and frequently ran his fingers through her hair, rubbed her shoulders, and ran his finger up her spine. Eich testified that she observed Drake touching the hair and rubbing the shoulders of other female employees. Frances Behm, a female employee in the Department, testified that Drake rubbed her shoulders and touched her hair. Drake often stopped by Eich's office and told her how pretty she was and asked her to run off with him somewhere. There was testimony that these types of innuendos occurred frequently.

On more than one occasion, during handcuff training sessions, Drake stood behind Eich and simulated a sexual act while Eich was bent over and handcuffed as part of the training. Eich testified that she observed Drake simulate a similar sexual act with another female officer during a handcuff training session. During other training sessions in the presence of Eich, Drake simulated sexual acts with a nightstick by sliding the stick in and out of his hand.

Eich and Drake were required to attend two out-of-town training sessions together in 1997 and 1999. During the 1997 training session in Arkansas, Eich and Drake were required to share a piece of equipment in order to complete their training homework. Although Eich and Drake worked on their homework separately, on at least one occasion, Drake asked Eich to help him with a problem he was having with the equipment. When Eich went to Drake's room to help, Drake commented that Eich's nipples were hard because she had gotten cold by going outside.

At the 1999 training session in Branson, Missouri, Drake grabbed at Eich's leg, touched her hair, and attempted to look down her blouse when she tried to retrieve a pencil he had dropped. Drake's conduct drew the attention of the training session instructor who approached Eich at a break and asked if she wanted Drake removed from the training session. Eich testified that she was humiliated and embarrassed by the incident as she was trying to project a professional image and had been asked to serve on the board of directors of the organization sponsoring the training.

Eich's problems with Gillespie began shortly after he started working for the Department in 1993. Gillespie often made comments about Eich's body, hair, and face, telling her she had a pretty face and pretty hair. Eich testified that Gillespie talked with her about the appearance of other female employees, and Eich once overhead Gillespie comment on the chest size of Eich and another female officer after they had been measured for bulletproof vests.

Gillespie spent hours sitting in Eich's office talking about various topics, some work-related and others personal. Other employees teased Eich about the amount of time Gillespie spent in her office, suggesting that she was "messing around with the boss." A running joke was that the chair in front of Eich's desk was "Richard's Chair."

Gillespie rubbed his hand up and down Eich's leg during meetings and rubbed or pressed up against her while they talked. On several occasions, Gillespie stood behind Eich while she sat at her computer and pressed his groin area into her shoulder. Gillespie once stated in the presence of Eich and other officers that it was so cold that he had to fish around in his pants to find "it" in order to go to the bathroom. On another occasion, Gillespie stated in the presence of Eich and another officer about giving an individual arrested for child molestation a jar of Vaseline to take to prison with him.

According to Eich, between 1993 and 2000, she reported her concerns about Drake and Gillespie's behavior numerous times (at least sixteen of which she had documented) to Chief Huff, the Director of Public Safety at CMSU. Eich also reported her concerns to Drake's supervisor, CMSU's director of human resources, and CMSU's affirmative action employment opportunity officer. Despite these numerous reports, Drake and Gillespie's objectionable conduct continued until Eich went on administrative leave in January 2001. Eich testified that in the year prior to her administrative leave some form of harassing behavior by Drake or Gillespie was occurring on an almost daily basis.

Eich testified that Gillespie would treat her poorly and criticize her job performance when she would ask Gillespie to leave her office or complain to Chief Huff about Gillespie's behavior. Eich alleges that CMSU retaliated against her for complaining of the sexual harassment. The basis of this allegation involves a market adjustment raise Eich expected to receive in 2000.

In July 1999 and 2000, Eich received the standard pay raise CMSU gave its employees. In November 1999, Eich received an additional raise of $1,057 per year to account for an internal pay discrepancy among three sergeants in the Department. In July 2000, three shift sergeants in the Department received a market adjustment raise in addition to CMSU's standard pay raise. The three shift sergeants who received the market adjustment raise were all senior in rank to Eich and had different job duties.

Eich did not receive the market adjustment raise in July 2000, despite her testimony that Chief Huff had promised she would receive the raise. Chief Huff testified that Eich did not receive the market adjustment raise because she had received the additional raise in November 1999 and had some job performance problems.

Eich's job responsibilities included following investigations, compiling reports, logging evidence into the evidence room, and making an inventory of evidence. She also sent case summaries to the prosecutor's office to request that someone be charged with a crime. She was required to send a fingerprint card to the prosecutor when a charge was requested. Regarding Eich's job performance problems, Chief Huff testified that Eich failed to move thirty-three drug cases forward to the prosecutor, causing some to exceed the statute of limitations, and missed a work assignment in April 2000. Eich testified that she was prevented from moving the drug cases forward because patrol officers in the Department failed to provide a required fingerprint card for each of the cases. She also offered into evidence the work schedule for the month of April 2000, showing she had not been assigned or made aware of the missed work assignment. In May of 2000, Eich was placed on a job performance improvement plan to address her job performance issues.

Eich filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and Missouri Commission on Human Rights on January 2 2001. She was granted fully-paid administrative leave from February 2001 to November 2001. CMSU conducted an internal investigation of Eich's complaints and concluded that no sexual harassment occurred. At the conclusion of its investigation, CMSU asked Eich to return to work but stipulated her reinstatement was to be with no substantial changes in the working conditions. Eich was unwilling to return to work under the existing conditions, and her employment was terminated in November 2001.

II. TITLE VII ("Sexual Harassment")

The history of sexual harassment in the workplace was initially premised on the interpretation of Title VII as found in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106...