Sheriff v. Midwest Health Partners

• Citation: 619 F.3d 923
• Decision Date: 30 August 2010
• Docket Number: No. 09-3367.,09-3367.
• Parties: Sheri SHERIFF, Plaintiff-Appellee, v. MIDWEST HEALTH PARTNERS, P.C., a Nebraska Professional Corporation; Midwest OB-GYN Clinic, P.C., a Nebraska Professional Corporation, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

619 F.3d 923

Sheri SHERIFF, Plaintiff-Appellee,

v.MIDWEST HEALTH PARTNERS, P.C., a Nebraska Professional Corporation; Midwest OB-GYN Clinic, P.C., a Nebraska Professional Corporation, Defendants-Appellants.

No. 09-3367.

United States Court of Appeals,Eighth Circuit.

Submitted: June 15, 2010.

Filed: Aug. 30, 2010.

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David Domina, argued, Jason B. Bottlinger, on the brief, Omaha, NE, for appellant.

Thomas M. White, argued, C. Thomas White and Amy S. Jorgensen, on the brief, Omaha, NE, for appellee.

Before MURPHY, BEAM, and BENTON, Circuit Judges.

MURPHY, Circuit Judge.

Sheri Sheriff brought this action against her employers, Midwest Health Partners, P.C. and Midwest OB-GYN Clinic, P.C. (collectively Midwest), alleging hostile work environment and constructive discharge in violation of Title VII and gender discrimination in violation of state law. After the district court ¹ directed a verdict in favor of Midwest on Sheriff's state law claim, a jury found in her favor on her hostile work environment claim and awarded her $100,000 in compensatory damages. Midwest appeals, contending that there was insufficient evidence to support her verdict and that the damage award was excessive. We affirm.

I

Sheriff, a licensed physical therapist, was hired by Midwest in September 2003 to open and run a physical therapy department at a recently acquired chiropractic clinic. The relevant facts are recounted here in the light most favorable to Sheriff due to the verdict in her favor on her hostile work environment claim. Wilson v. City of Des Moines, 442 F.3d 637, 639 (8th Cir.2006).

After she began to work at the clinic in September 2003, one of the chiropractors, Dr. Curtis Meyer, acted towards her in ways which made her uncomfortable. Dr. Meyer began to touch her and put his arm around her. At first she was afraid to report his behavior because she depended upon the chiropractors for patient referrals. Without such referrals health insurance providers would not cover physical therapy. She tried to “guard” herself from Meyer's unwelcome advances by keeping her distance from him, but she was unable to evade all of his embraces. She testified that she felt humiliated when he pulled her against his body but that she felt powerless to stop or confront him. When Sheriff told one of the Midwest nurses about her problem with Meyer, the nurse told her to “get used to it, [because] that's just the way he is.”

An incident on March 17, 2005 finally caused Sheriff to report Meyer's conduct to management. On that day she purchased coffee for the clinic employees, and when she was alone in her office Meyer came in and kissed her on the forehead. His kiss made her feel “horrible” and “very violated” and she went to see Brenda Proffitt, Midwest's Practice Manager. She reported the kiss incident as well as Meyer's previous physical advances.

Sheriff then drafted a letter to Meyer which Proffitt reviewed and approved. In the letter Sheriff told Meyer:

I have never given you any indication that it is okay to touch or kiss me. It is NOT okay! I have been on-guard around you for so long anyway[ ], as I have never felt comfortable the way you put your arm around me and squeeze my side.... I do not want you to touch or kiss me again.... I hope this does not affect our professional relationship. I want to address this situation ... and move on.

Meyer received Sheriff's letter on March 22. He immediately apologized to her and assured her he would never again kiss or embrace her. Sheriff accepted his apology and told Proffitt, “As far as I am concerned, it has been taken care of. If you and [Midwest president] Dr. Vrbicky are okay with it, I do not need you to talk to him on my behalf.”

Although Dr. Vrbicky was aware that a patient at Meyer's prior clinic had complained about his inappropriate conduct, no one from Midwest management talked with Meyer after receiving Sheriff's report. During the next month Sheriff learned that Meyer had inappropriately touched, kissed, or “come on to” a patient at their clinic on three occasions. Then in June a second patient reported being inappropriately touched by Meyer. Sheriff reported these complaints to Proffitt.

In July Meyer resumed physical contact with Sheriff, grabbing at her and embracing her. After he did the same thing in August, Sheriff sought counseling. Then on September 14 Meyer grabbed her three times as they were both walking down a clinic hallway. In each incident he wrapped his arm around her shoulder, pulled her close, and ran his hand down the side of one breast before squeezing the other into his body. ² She was unable to break free of his grasp. That afternoon Sheriff reported all these incidents to Proffitt and Dr. Vrbicky.

In a letter forwarded to Sheriff by Proffitt, Midwest's attorney advised it on September 23 “to take aggressive action to protect itself” and recommended several measures to stop Meyer's inappropriate behavior. In the following weeks Sheriff had to contact Midwest repeatedly, however, to ask it to do something about Meyer and to let her know what action it was taking.

Midwest met with Meyer for the first time seven weeks after Sheriff's September complaint. On November 4, 2005, Dr. Vrbicky asked Meyer to participate in counseling and to sign a document acknowledging the complaints about “acts of sexual impropriety and familiarity you have committed.” That document also set probation conditions for Meyer and warned him that further complaints could result in his termination. Meyer refused to attend counseling or to sign the document. He also began to behave in intimidating ways toward Sheriff. He mocked her by holding his hands in the air around patients to show that he was not touching anyone. He sat beside her at meetings despite the availability of other seating. On one occasion he blocked a doorway while telling her to “put [her] problems aside.” Sheriff reported each incident, as well as a third patient complaint about him in December.

Throughout this period, Meyer had continued to reject Midwest's remedial conditions. Dr. Vrbicky renewed them in a January 4, 2006 letter, but Meyer again refused to cooperate. In a January 13 meeting with physician's assistant John Davies, he once again turned down Midwest's requests. Finally on February 23 he agreed to attend sexual harassment training but refused any form of mental health counseling. Although Midwest expected Meyer to attend training on five separate days, he went to a single session.

On January 2, 2006, Sheriff was informed by Davies that Meyer would be terminated within 45 days. He was not, and Sheriff was never informed why he remained on the job after the 45 day period expired. She was told nothing further about any investigation by Midwest or about Meyer's eventual consent to treatment. Meanwhile, Sheriff continued counseling and was treated for increased anxiety, stress, depression, and shortness of breath. She also suffered migraine headaches with greater frequency, which caused her to miss work and affected her performance. The stress also interfered with her family life. Convinced that Midwest would take no action against Meyer, Sheriff resigned on April 10, 2006.

Sheriff brought this action on December 11, 2007, alleging hostile work environment and constructive discharge, in violation of Title VII of the Civil Rights Act of 1964 as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-2(a), and gender discrimination, in violation of the Nebraska Fair Employment Practice Act, Neb.Rev.Stat. § 48-1101 et seq. The district court denied Midwest's summary judgment motion, and the case proceeded to a jury trial. Midwest was awarded a directed verdict on Sheriff's state law claim, but the jury found for Sheriff on her hostile work environment claim and awarded $100,000 in compensatory damages. The jury ruled against Sheriff on her constructive discharge claim. Midwest's subsequent motions for judgment as a matter of law, for a new trial, and for remittitur were denied.

Midwest appeals the denial of its post trial motion for judgment as a matter of law, contending that the evidence was insufficient to sustain the jury's hostile work environment verdict. It also appeals the denial of its motion for remittitur or a new trial on the issue of damages.

II

Denial of a post trial motion for judgment as a matter of law is reviewed de novo, and the district court is to be affirmed unless there was “ ‘a complete absence of probative facts to support the conclusion reached’ so that no reasonable juror could have found for the nonmoving party.” Hathaway v. Runyon, 132 F.3d 1214, 1220 (8th Cir.1997) (quoting Ryther v. KARE 11, 108 F.3d 832, 836 (8th Cir.1997) (en banc)). The evidence must be viewed in the light most favorable to the nonmoving party while assuming as proven all facts her evidence tends to show, resolving all evidentiary conflicts in her favor, and according her all reasonable inferences. Id.

Title VII's prohibition of discrimination in employment on the basis of sex, 42 U.S.C. § 2000e-2(a), includes sexual harassment, which “has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment,” Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65-66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (quoting 29 C.F.R. 1604.11(a)(3)).

To prove that sexual harassment by a nonsupervisor has created a hostile work environment in violation of Title VII, a plaintiff must establish:

(1) [that she belongs to] a protected group; (2) [that she suffered] unwelcome harassment; (3) [that there was] a causal nexus between the harassment and her membership in the protected group; (4) that the harassment affected a term, condition, or privilege of [her] employment; and (5) that the employer knew or should have known of the harassment and failed to take

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