Smith v. St. Louis University

Citation109 F.3d 1261
Decision Date24 March 1997
Docket NumberNo. 96-2519EM,96-2519EM
Parties74 Fair Empl.Prac.Cas. (BNA) 459, 70 Empl. Prac. Dec. P 44,671, 117 Ed. Law Rep. 82 Victorija SMITH, Appellant, v. ST. LOUIS UNIVERSITY, a Missouri Benevolent Corporation Operating as St. Louis University Hospital and School of Medicine, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

James M. Dowd, St. Louis, MO, argued, for appellant.

Teri B. Goldman, St. Louis, MO, argued (Peter H. Ruger, on the brief), for appellee.

Before RICHARD S. ARNOLD, Chief Judge, BEAM, Circuit Judge, and ALSOP, * District Judge.

RICHARD S. ARNOLD, Chief Judge.

Victorija Smith filed this action for employment discrimination against St. Louis University under 42 U.S.C. §§ 2000e-1 to 2000e-17 and Mo.Rev.Stat. § 213.010-.095. She alleged that the University had discriminated against her on the basis of sex by subjecting her to sexual harassment, and that it had retaliated against her for complaining about the harassment. The District Court granted summary judgment for the University on both claims. Smith now appeals. Because the evidence she presented was sufficient to survive summary judgment on both claims, we reverse and remand.

I.

Victorija Smith was an anesthesiology resident at St. Louis University's Hospital and Medical School from July 1991 to June 1994. She presented evidence to the District Court, which we here view most favorably to her, that the chairman of the Anesthesiology Department, John Schweiss, repeatedly spoke derogatorily to her because of her gender. Smith contends that the pervasiveness and severity of these comments created a hostile work environment that altered the terms or conditions of her employment.

Smith, in her deposition, recounted numerous harassing or discriminatory comments by Schweiss. For example, Schweiss regularly referred to Smith and other female residents by their first name, or without the title "Doctor," while using "Doctor" and last names for male residents. This began on the first day of orientation and continued in front of her colleagues, patients, nurses, and guest lecturers. Smith took this as a signal that Schweiss did not consider her deserving of recognition as a fellow professional. She was told by other doctors that Schweiss had told them that he had selected Smith in order to fill his female quota, and thus to avoid charges of discrimination. These doctors agreed, claiming that "you girls are here because it's about time he hired some good looking girls." Schweiss and these doctors at various times told Smith she was attractive, a "beautiful young lady," and should consider modeling. Smith also alleged that Schweiss referred on another occasion to her and another female resident as the "anesthesia babes."

Smith stated that Schweiss complained several times he was "stuck with Vicki again" and "had to work with another female resident." In the operating room with Smith (as well as at lunch with her in the doctor's lounge), Schweiss asked her why she had gone into medicine rather than nursing, or getting married. He also asked why she was so assertive, and why she polished her nails. At another time, Schweiss opined to her that women ought to be married and home nursing babies, and compared her unfavorably to the wife of another doctor who stayed home to raise their children. He further suggested, however, that Smith, because of her age and medical training, would not be able to find a husband. Smith also stated that Schweiss altered his rotation schedule so that he would be around her, in order that he might subject her to additional ridicule, or, as another doctor put it, "to get to" her.

Smith explained that she was hospitalized twice, in December 1993 and March 1994, as a result of stress from the harassment by Schweiss. She also testified in her deposition that she had suffered emotional trauma and frequent crying because of the harassment.

Smith's second claim alleged that Schweiss had given negative reviews of her to two prospective employers, in retaliation for her complaining to the University about his harassing behavior. Schweiss gave these reviews after Smith's residency had ended. Schweiss's conversations with these employers led them to question Smith about the nature of her relationship with Schweiss at their interviews of her. One of them asked whether Smith was considering legal action, after noting that Schweiss had not had very nice things to say about her. Smith was not hired by those employers.

Although the harassment allegedly began before the start of her residency, Smith waited until November of 1993, during the final year of her residency, to complain to the Dean of Student Affairs. Her complaint was prompted by a letter of recommendation written by Schweiss that referred to Smith's marital status. Schweiss's secretary showed Smith the letter because she thought that its reference to Smith's being single was immaterial to her qualifications. Smith claims that her delay stemmed in part from a fear of being fired, which would be "disastrous" to her career. 1 The Dean of Student Affairs met with Smith in January 1994, and then referred Smith to the Dean of the Medical School, to whom Smith detailed her complaints in February. This Dean met with Schweiss in March 1994 to discuss Smith's complaints about him. The Dean then reported back to Smith in April, telling her that she had admonished Schweiss not to retaliate against Smith, and that she had requested that Schweiss monitor the Department for discriminatory comments and prevent their recurrence.

The District Court granted the University's motion for summary judgment on Smith's hostile-environment claim because it thought the conduct was not sufficiently severe or pervasive. The Court held that the absence of sexually explicit comments lessened the severity of the harassment, and that the comments were not sufficiently frequent to establish pervasiveness. The Court further explained that the comments were not threatening, but rather were merely offensive and often not gender-based. The Court also held that the conduct did not interfere with Smith's work performance, any emotional harm notwithstanding. The District Court also held that the remedial action taken by the University was both prompt and adequate, and thus created a defense to liability. Because the District Court held that Smith had failed to establish either severity or insufficient response, it held that Smith's claim of a hostile work environment must fail as a matter of law.

The District Court also granted summary judgment on Smith's retaliation claim. The Court explained that six months went by from when Schweiss was admonished by the Dean of the Medical School to the time he made his negative comments about Smith. The Court held this period to be too long for Smith to establish a causal connection between the protected Title VII activity and the adverse employment action. It separately held that to the extent Smith's claim involved post-employment retaliation, Title VII did not provide a cause of action. Smith then took this appeal.

We review the evidence Smith has presented de novo to determine whether there are genuine issues of material fact that would make summary judgment inappropriate. We have explained before "that summary judgment should seldom be used in employment-discrimination cases." Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir.1994). The evidence Smith has presented creates triable issues of fact both on the severity and pervasiveness of the harassment and on the adequacy of the response the University took to Smith's complaints. Likewise, the evidence on retaliation that Smith has adduced should be presented to a jury. We address the two claims separately.

II.

Title VII has been interpreted to provide a cause of action for discrimination "[w]hen the workplace is permeated with 'discriminatory intimidation, ridicule, and insult' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.' " Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993). 2 The parties do not dispute that Smith has shown the first three elements she must prove to succeed on her claim: that Smith is in a protected group, that Smith was subjected to unwelcome harassment, and that the harassment was based on sex. E.g., Hall v. Gus Constr. Co., 842 F.2d 1010, 1013 (8th Cir.1988). The parties contest the remaining two elements of proof: whether the harassment affected a term, condition, or privilege of Smith's employment, and whether the University knew or should have known of the harassment, and failed to take proper remedial action. Ibid.

A.

The facts that Smith adduced would allow a reasonable jury to conclude that the conditions of Smith's employment were altered by the harassment. While offensive comments alone may not create a hostile work environment, Smith need not show that they "cause[d] a tangible psychological injury" to succeed on her claim. Harris, 510 U.S. at 22, 114 S.Ct. at 371. Even conduct that "does not seriously affect employees' psychological well-being, can and often will detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing their careers." Ibid. Smith has introduced evidence that Schweiss frequently and regularly made derogatory comments toward Smith and at least one other female resident. Moreover, his comments commenced when Smith began her residency and continued virtually throughout her time at the hospital. While Smith was not at all times working with Schweiss (her rotation schedule caused her to work with other doctors as well), Smith need not be exposed continually to the harassment to succeed on her claim; Schweiss was, moreover, the head of the Department, and therefore more omnipresent than a coworker might be. Furthermore,...

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