Jenkins v. Winter

• Decision Date: 02 September 2008
• Docket Number: No. 07-2049.,07-2049.
• Citation: 540 F.3d 742
• Parties: Gina JENKINS, Appellant, v. Donald C. WINTER, Secretary of The Navy, et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

540 F.3d 742

Gina JENKINS, Appellant, v. Donald C. WINTER, Secretary of The Navy, et al., Appellees.

No. 07-2049.

United States Court of Appeals, Eighth Circuit.

Submitted: March 14, 2008.

Filed: September 2, 2008.

Basil L. North, Jr., Basil L. North, Jr. & Assoc., LLC, Kansas City, MO, argued, for appellant Gina Jenkins.

Amy M. Fowler, Curtis R. Summers, Blackwell Sanders, LLP, Kansas City, MO, for appellee End to End, Inc.

Cari Franke Walsh, Asst. U.S. Atty., Kansas City, MO, argued (John F. Wood, U.S. Atty., on the brief), for appellee Donald C. Winter.

Before MURPHY, BRIGHT, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Gina M. Jenkins sued Donald C. Winter,¹ Secretary of the Navy (the Navy), End to End, Inc. (ETE), Wesley Jones, and Clayton Hartley for sexual harassment and retaliation. In addition, Jenkins asserted state law claims against Jones and Hartley for assault and battery, and defamation of character. The Navy and ETE moved for summary judgment; the district court granted it. The court also granted Hartley's motion to dismiss and dismissed the state law claims against Jones. Jenkins appeals the district court's grant of summary judgment for the Navy. Having jurisdiction under 28 U.S.C. § 1291, this court affirms in part, reverses in part, and remands.

I.

In this summary judgment context, this court states the facts most favorably to Jenkins, the non-moving party. See Anda v. Wickes Furniture Co., 517 F.3d 526, 531 (8th Cir.2008).

Jenkins worked as a Program Analyst, or statistician, for the Navy Recruiting District Office in Kansas City, Missouri, from October 2001 to March 2006. A civilian employee, she was hired by ETE, a contractor that provided technical and administrative workers for the Navy. At the time of the harassment, Jenkins's immediate supervisor was the head of the Enlisted Programs Office, Lieutenant Commander Mary Kortz. The immediate supervisor of the Enlisted Programs Office was Executive Officer Michael Borrosh. The ultimate supervisor of the Enlisted Programs Office was Commanding Officer Scott Hale.

Jones, the harasser, was the Command Master Chief for the Kansas City office. He started work there on October 14, 2003. Hartley, who allegedly retaliated against Jenkins, was the Chief Recruiter at the command.

Jenkins alleges the harassment started October 16, 2003. She claims Jones made daily comments about how attractive and sexy she was, leered suggestively at her, and repeatedly asked her for sex. He made comments such as: (1) "he had girls who would give him `blow jobs' if she would not do anything for him"; (2) "let's do it one time, I will let you be in control"; and (3) "he would give her `a dollar to dance on his desk.'" Jones also was hostile toward Jenkins when she rejected him. He would give her mean looks, curse and swear at her, and say she was on his "`shit list' for not dating him." On one occasion, in "late November," Jones inappropriately touched and fondled Jenkins's leg and inner thigh. Another employee was in the office at the time and witnessed the incident.

During the week of November 17, Jenkins talked to the Command Managed Equal Opportunity Officer Sean Williamson. She told Williamson about Jones's comments and behavior, but did not say anything about the touching incident. She indicated she did not want to file a formal complaint at the time.² According to Jenkins, Williamson agreed "not knowing the severity of the situation, and only with [her] assurance that [she] would immediately report the incident if the situation did not stop immediately." Following the Navy's policy, he encouraged her to handle the matter informally — to talk to Jones and ask him to stop.

Under the Navy's sexual harassment policy, a person who has been harassed is encouraged, but not required, to resolve the situation informally by addressing concerns with the person demonstrating the behavior. If the behavior does not stop, then the person is to notify the chain of command.³

Following the conversation with Williamson, Jenkins talked to Jones telling him she "was uncomfortable with his behavior." She told him she was married, and even if she were single, she "would never date or sleep with a co-worker." Jones listened but "had no further comments."

Williamson, in the plan of the week for November 21 to 28, sent a note to all military personnel stating: "all personnel are responsible for treating others with mutual respect and dignity. This means fully and faithfully complying with the Navy's policy of zero sexual harassment." On Monday, November 24, he sent an email to military personnel reiterating the same point. After receiving the email, Borrosh asked Jenkins if she was being harassed by anyone at work. Jenkins told Borrosh that she "was experiencing something that was making me uncomfortable but that I had talked to the CMEO and was handling it on my own." Following the conversation with Borrosh, Jenkins received two phone calls from officers in the district, including Chief Daniel Hartman, who said he learned of the harassment from Chief Frank Waranch. Each caller asked about the harassment between Jones and her. Jenkins explains: "From that point, who did or did not know was no longer in my control and the situation spiraled from there."

The following Monday, December 1, Hale, the Commanding Officer, learned of the situation between Jenkins and Jones. Hale called Williamson, who told him it was being handled informally. Hale also talked to Jones, who denied knowing anything. On December 4, 2003, Hale asked Jones, Jenkins, Williamson, Hartley, Borrosh, and others to discuss the situation in his office. Initially refusing, Jenkins

informed the entire group of each of the incidents. . . . Up to this moment, although . . . [Williamson] and . . . [Borrosh] did know someone had made me feel uncomfortable, I had not informed any person in the Chain of Command as to the severity of what had been transpiring. I genuinely believe that every person present at this time was shocked and angry to hear what . . . I had to say.

According to Jenkins, the harassment ended that day, December 4.

A formal investigation was completed on January 24. Following the investigation, Jones was placed on permanent administrative leave on January 26, and detached for cause on February 23. If a Command Master Chief is detached for cause, there is no further job with the Navy. The individual is forced to retire and his Navy career is terminated.

Jenkins received awards from the Navy in 2004 and 2005 for "exceptionally outstanding performance as a statistician," and "on-the-spot" bonus awards from ETE at the end of the year in 2003, 2004, and 2005. She remained in her job after December 4, 2003, and her job duties did not change; she did not receive any kind of demotion or reassignment. She resigned from her job on March 10, 2006, because the Kansas City recruiting office closed.

II.

Ruling on the motions for summary judgment, the district court deemed admitted all facts stated in the Navy's summary judgment motion. See W.D. Mo. R. 56.1(a). The court concluded that Jenkins had "failed to specifically controvert in numbered paragraphs the Defendant's statement of facts in her response to the pending motion for summary judgment." The court stated:

In her response, plaintiff sets forth her own statement of facts, many of which are not supported by competent evidence that could be considered by the Court in the summary judgment context. Consequently, the facts stated below are derived from Defendant's statement of facts, unless otherwise indicated.

This court reviews for abuse of discretion. Jones v. United Parcel Serv., Inc., 461 F.3d 982, 990 (8th Cir.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 2088, 167 L.Ed.2d 766 (2007).

"Local Rule 56.1 places size and content limitations on a non-movant's response to a summary judgment motion." Id. It states:

Suggestions in opposition to a motion for summary judgment shall begin with a section that contains a concise listing of material facts as to which the party contends a genuine issue exists. Each fact in dispute shall be set forth in a separate paragraph, shall refer specifically to those portions of the record upon which the opposing party relies, and, if applicable, shall state the paragraph number in movant's listing of facts that is disputed. All facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the opposing party.

W.D. Mo. R. 56.1(a).

Here, Jenkins properly followed Local Rule 56.1. In her motion opposing summary judgment, Jenkins, after the preliminary statement, included a concise listing of material facts as to which she contends a genuine issue exists. The list contained 37 separate facts set forth in separate paragraphs. Each fact, except one, referred specifically to portions of the record. Although less than half of Jenkins's facts referenced the specific paragraph number in the Navy's listing of facts, this is required only if applicable. Local Rule 56.1 does not require Jenkins to specifically controvert in numbered paragraphs the Navy's statement of facts (contrary to the district court's conclusion). See id. Further, Jenkins disputed the material facts most relevant to the issues raised in the summary judgment motion (i.e., whether Jones was her supervisor, the Navy's sexual harassment policy and training, when the Navy became aware of the harassment, when she reported the harassment, and whether there was retaliation afterwards).

The district court erred in not considering Jenkins's statement of facts. See Anda v. Wickes Furniture Co., 517 F.3d 526, 531 (8th Cir.2008) (considering a summary judgment motion, the district court views the evidence and draws all inferences in a light most favorable to the non-moving party).

III.

The district court concluded that Jenkins's statement of facts were not supported by...