Russell v. City of Kansas City, Missouri, 04-1654.
| Decision Date | 12 July 2005 |
| Docket Number | No. 04-1654.,04-1654. |
| Citation | 414 F.3d 863 |
| Parties | Willa RUSSELL, Plaintiff-Appellant, v. CITY OF KANSAS CITY, MISSOURI, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Jeffrey Wayne Bruce, argued, Belton, MO, for appellant.
Saskia C.M. Jacobse, argued, Kansas City, MO, for appellee.
Before LOKEN, Chief Judge, HANSEN and MORRIS SHEPPARD ARNOLD, Circuit Judges.
After investigating a complaint by an African-American subordinate, the Kansas City Water Services Department demoted Willa Russell, a white female supervisor in the Pipeline Division, reduced her pay, and stripped her of all supervisory duties. Russell appealed to the City's Human Resources Board. After an evidentiary hearing, the Board concluded that Russell had engaged in misconduct, though it prospectively restored her pay and reduced her demotion. Russell then commenced this action, alleging intentional race and gender discrimination in violation of Title VII, 42 U.S.C. § 2000e-2(a), and the Missouri Human Rights Act, Mo.Rev.Stat. § 213.055. The district court granted the City's motion for summary judgment, and Russell appeals. Reviewing the grant of summary judgment de novo and viewing the summary judgment record in the light most favorable to Russell, the non-moving party, we reverse. See Brunke v. Goodyear Tire & Rubber Co., 344 F.3d 819, 821 (8th Cir.2003) (standard of review).
The dispute began in August 2000 when probationary employee Jennifer Love complained to the City that supervisor Russell had pushed Love and placed her in a headlock, had made several racially offensive comments, and had used offensive profanity in the workplace. Love stated that three other employees heard Russell's offensive comments and that Russell's two supervisors failed to take corrective action in response to Love's formal complaint.
Two Water Department employees investigated this complaint by interviewing Love, Russell, and two other Pipeline Division employees. The investigators concluded that Love's complaint of physical violence was unfounded but that Russell "had made repeated inappropriate comments based on race, ethnicity, and sexual orientation and ... participated in or condoned activities that can only be termed as unprofessional, especially in light of her status as a supervisor." On September 1, acting on this report, the Director of Water Services sent Russell a letter removing her from the Pipeline Division offices "effective immediately," relieving her of all supervisory duties, and recommending "a five (5) day suspension without pay for your unprofessional behavior." The letter advised Russell that a predetermination hearing had been scheduled for September 12.
The next document in the sparse record on appeal is a January 3, 2001, letter from an EEO Investigator for the City's Human Resources Department to the Director of Water Services summarizing "the investigation that was conducted by the Equal Employment Opportunity/Diversity Office in response to allegations of racial discrimination filed by Jennifer Love." The letter advised that, after interviewing Love, Russell, four office staff, and Russell's two supervisors, the Investigator concluded that "the following allegations [by Love] were corroborated":
1. Ms. Russell did have a conversation with Ms. Love regarding her family picking cotton. However, it appears that both Ms. Love and Ms. Russell were laughing and joking during the conversation and that Ms. Love informed Ms. Russell the next day that she did not appreciate the comments made during the conversation.
2. Ms. Russell did make a comment regarding Mexicans taking baths in fire hydrants while watching a Water Services video with other employees, including an employee of Hispanic origin.
3. Ms. Russell regularly referred to a male employee (who is reported to be homosexual) as a "sissy pants."
The Investigator reported that the use of inappropriate language, ethnic slurs, and racial jokes in the office "is commonplace and tolerated" and recommended that Russell be demoted to a non-supervisory position for at least one year.
On January 4, the EEO Investigator sent Russell a letter advising her of the findings and the recommendation that Russell be disciplined. Though this letter was treated as the Department's statement of reasons at the subsequent due process hearing before the Personnel Board, the City did not include the document in the Joint Appendix on appeal. On January 5, Love received a letter from the Human Resources Department rejecting her complaint because "the use of slurs, racial epithets, and jokes based on race, ethnicity and sexual orientation is commonplace and tolerated." The City did not include this document in the Joint Appendix. On January 27, after a predetermination hearing, the hearing officer determined that there was sufficient evidence to uphold the Director's recommended discipline. The City likewise did not include a copy of the hearing officer's decision in the Joint Appendix.
The Water Services Department demoted Russell and reduced her pay on March 26, 2001. Russell appealed to the Human Resources Department, and a hearing was held before its Personnel Board on June 15, 2001. Regarding the EEO Investigator's finding that Russell made a disparaging comment regarding Mexican children bathing in fire hydrants in the presence of an Hispanic employee, the employee in question, Rita Hernandez, testified that she never heard Russell make an inappropriate ethnic comment. Hernandez testified that Love and other employees including Russell frequently used profanity and racial slurs and that, in Hernandez's opinion, Russell had been singled out for punishment because she is white "in an office where all supervisors condone the types of things she's being accused of."
Regarding the EEO Investigator's finding that Russell regularly referred to a male employee as a "sissy pants," the employee in question, William Recar, testified that he is openly homosexual and has never been offended when Russell occasionally called him "sissy boy" (not "sissy pants"); that Russell's comments to Recar were always friendly and non-malicious; that black and white employees regularly used profanity and engaged in racial banter without appearing to be offended; that Russell's two supervisors knew of this verbal environment but took no action; and that he had seen at least five supervisors "do the same things that Willa Russell is being accused of and not be disciplined." Like Hernandez, Recar opined that Russell had been singled out for discipline because she is white.
After the hearing, the Board issued a written decision concluding that Russell "engaged in misconduct when, in the presence of, and often directed towards, her subordinate employees, she regularly used profanity, made inappropriate comments about race, and called a subordinate employee `sissy pants' and that her actions are cause for disciplinary action." However, the Board reduced Russell's demotion from two position levels to one and reinstated her prior salary without back pay. In addition, the Board expressed concern "with the fact that [Russell's] supervisors were not disciplined for failing to address [Russell's] behavior and with allegations of the pervasive use of profanity and demeaning language by both employees and supervisors." In response to this criticism, the Water Department issued reprimand letters one month later to Russell's two supervisors, a black male and a white male, but did not demote them or reduce their pay. This lawsuit followed.
As an initial matter, we agree with Russell that the district court committed an error of law in construing the Supreme Court's decision in Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003), as modifying the summary judgment standard applied by this court in employment discrimination cases. See Griffith v. City of Des Moines, 387 F.3d 733, 735-36 (8th Cir.2004). Under that standard, as we have explained in Griffith and many other cases, an...
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