Whitmore v. O'Connor Management, Inc., 97-1273

• Decision Date: 17 October 1998
• Docket Number: No. 97-1273,97-1273
• Citation: 156 F.3d 796
• Parties: 77 Fair Empl.Prac.Cas. (BNA) 948 Bettie Jean WHITMORE, Appellant, v. O'CONNOR MANAGEMENT, INC., and General Growth Management, Inc., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 796

156 F.3d 796

77 Fair Empl.Prac.Cas. (BNA) 948

Bettie Jean WHITMORE, Appellant, v. O'CONNOR MANAGEMENT, INC., and General Growth Management Inc., Appellees.

No. 97-1273.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 8, 1997.

Decided Aug. 18, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied Oct.

17, 1998. ^*

Basil L. North, Jr., Kansas City, MO, argued (Maria L. North-Harris, on the brief), for Appellant.

John R. Phillips, Kansas City, MO, argued (David C. Trowbridge and Mary E. Metz, on the brief), for Genral Growth Management.

Larry M. Schumaker, Kansas City, Mo, argued, for O'Connor Management.

Before HANSEN, JOHN R. GIBSON and MORRIS SHEPPARD ARNOLD, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Bettie Whitmore worked in maintenance at a shopping mall that was first managed by O'Connor Management, Inc., and subsequently by General Growth Management, Inc. She alleges that her employers maintained a hostile environment by subjecting her to sexual harassment from Marcel Bartee, a co-worker. The district court held that Ms. Whitmore's Title VII claim, see 42 U.S.C. § 2000e-2(a)(1), against O'Connor was time-barred. See Whitmore v. O'Connor Management, Inc., 899 F. Supp. 425 (W.D.Mo.1995). The district court further held that Ms. Whitmore did not produce sufficient evidence to establish that General Growth had subjected her to a hostile environment or that General Growth was on notice of activities that constituted actionable sexual harassment. Finally, the district court held that Ms. Whitmore's Missouri Human Rights Act claims, see Mo. Ann. Stat. § 213.055.1(1)(a), failed because she had not obtained the right-to-sue letter that Mo. Ann. Stat. § 213.111.1 requires.

Ms. Whitmore appeals from the district court's entry of summary judgment in favor of O'Connor and General Growth on the Title VII claims and the district court's dismissal of her Missouri Human Rights Act claims. We affirm the judgments of the district court ¹ in all respects.

I.

Ms. Whitmore began to work at the Ward Parkway Shopping Center in April, 1991, when O'Connor managed the mall. Ms. Whitmore worked in maintenance, cleaning restrooms. Mr. Bartee began hiding in supply closets, jumping out to frighten her when she was alone, touching her breasts and thighs, and telling other workers at the mall that he had engaged in sexual intercourse with her in the closet. (Ms. Whitmore was aware of the comments that Mr. Bartee had made about her to other employees, because they told her.) She told the lead person in maintenance, L.V. Wesley, that Mr. Bartee "was touching her and pulling on her clothes and pulling on her, stuff like this." Mr. Wesley testified that he spoke with the building superintendent, Mike Sweeney, about the problem, but only to say that Mr. Bartee was hanging around the food court, which is where Ms. Whitmore worked.

Mr. Bartee's pattern of sexual aggression culminated in two incidents in August, 1992. Ms. Whitmore had by then begun serving as the lead person in charge of maintaining the food court. She had permission to pass the time in a locked supply room before she came on duty. The first incident happened in that supply room, where Ms. Whitmore was paying some bills before beginning work. Mr. Bartee came into the room and grabbed Ms. Whitmore's breast. She threatened to report him to the office, and he grabbed her between her legs. He left when he heard someone's keys jingling nearby. Later that day, he grabbed her neck in the food court and threatened to kill her.

The second incident occurred later that week when Ms. Whitmore arrived at work almost five hours early. She locked the supply room and lay down on some boxes to take a nap. She woke up to find Mr. Bartee putting his hand between her legs. He then exposed himself, physically tried to force her to perform fellatio, and tore the zipper on her pants. When another worker came to the door, Mr. Bartee left. Ms. Whitmore reported the event to the operations manager, David Redford, who investigated it. Mr. Bartee denied that it had occurred, but Mr. Redford collected evidence that Mr. Bartee had offered another employee money for sex and had made sexual advances to still another. After the investigation, O'Connor suspended Mr. Bartee for ten days and warned him to stay away from Ms. Whitmore and not to retaliate against her. Ms. Whitmore reported the assaults to the police, and Mr. Bartee was criminally prosecuted.

O'Connor ceased managing the mall on January 31, 1993. Compass Retail, Inc., took over for five months, and then General Growth began managing the mall. General Growth hired Ms. Whitmore and Mr. Bartee to do the jobs that they had performed before. Don Benson, at that time the general manager of the mall, and Glenn Hibben, at that time the operations manager, learned about the assaults on Ms. Whitmore shortly after coming to work for General Growth at the mall.

Not long after General Growth assumed the management of the mall, Mr. Bartee's sister came into the food court, walked up behind Ms. Whitmore, and called her name. Ms. Whitmore turned around and the sister said, "[B]itch, you got Marcel in a lot of trouble." Ms. Whitmore said that Mr. Bartee's sister "had a purse, kept running her hand down in it ... like she had a gun or something." Ms. Whitmore further stated that she "took off to the back and got my bag and I ran over" to Mr. Hibben and told him about the apparent threat. Mr. Hibben said, "I thought all that stuff was over with between you and Marcel."

When the criminal case against Mr. Bartee came to trial, he was convicted of third-degree sexual abuse, a misdemeanor, and received probation. He retained his job after his conviction and continued to stare at Ms. Whitmore conspicuously for long periods of time as she worked in the food court. Mr. Bartee had been ordered by the criminal court to stay away from Ms. Whitmore, but the manager of a sandwich shop in the mall, Shannon Driscoll, said that Mr. Bartee would hang over the railing, looking down at the food court, "especially when Bettie was there. I can't emphasize that enough. I am talking 20 minutes in the same spot, not moving, for a long period of time." Ms. Driscoll described Mr. Bartee as watching Ms. Whitmore "to the point of where I would almost call it stalking." Mr. Bartee, moreover, continued to refer to Ms. Whitmore as his prostitute in such crude language that Ms. Driscoll reported it to Ms. Whitmore herself. Mr. Hibben said that he knew that Mr. Bartee was making derogatory comments about Ms. Whitmore, but that he did not follow up on it because it was "just hearsay." He did not ask Mr. Bartee about it because there was "no proof."

On appeal, Ms. Whitmore contends that her Title VII claim against O'Connor was timely because she was subjected to a continuing violation that began before O'Connor ceased managing the mall. She also maintains that she produced sufficient evidence to raise a question of material fact as to whether she was subjected to a hostile work environment when she worked for General Growth and whether General Growth was on notice that such an environment existed. Finally, she asserts that she was not required to obtain a right-to-sue letter from the Missouri Commission on Human Rights, because she had received such a letter from the EEOC.

II.

Ms. Whitmore attempts to avoid the statute of limitations bar to her Title VII claim against O'Connor by arguing that O'Connor is responsible for actions that continued after it ceased managing the mall. At first, she appears to be advancing a corporate successor theory, based on subsequent managers' failure to remedy Mr. Bartee's conduct. In her reply brief, however, Ms. Whitmore states that she "has never asserted that General Growth ... is the successor to O'Connor," and she also states, "Plaintiff has frankly admitted that she can find no clear precedent" for her theory but that it is "analogous" to successor liability. Actually, Ms. Whitmore seems to be arguing for predecessor liability, asking us to hold O'Connor liable for General Growth's conduct. In any event, there are many difficulties with Ms. Whitmore's legal argument, not the least of which is the fact that there was no sale of a business creating a predecessor-successor relation between the two corporations. Ms. Whitmore's argument appears to us to be little more than a request to impute liability in a case in which there is no legal authority for doing so, an invitation that we necessarily decline.

Ms. Whitmore also attempts to avoid the limitations bar by contending that the relevant period should begin on the day when she filled out an EEOC intake questionnaire, rather than on the day when she filed her formal charge. The general rule in Title VII cases is that unverified intake questionnaires do not constitute a formal charge. See Lawrence v. Cooper Communities, Inc., 132 F.3d 447, 450 (8th Cir.1998), and Schlueter v. Anheuser-Busch, Inc., 132 F.3d 455, 458 (8th Cir.1998). She contends nevertheless that she intended the answers to the questionnaire to initiate proceedings against O'Connor and that we should therefore treat them as a formal charge, but she cites us to no evidence indicating that "the questionnaire was intended to function as a charge in [her] case," Diez v. Minnesota Mining and Mfg. Co., 88 F.3d 672, 677 (8th Cir.1996). See generally id. at 674-75 (age discrimination case, discussing Title VII cases). We therefore affirm the summary judgment entered against Ms. Whitmore on the Title VII claim with respect to O'Connor.

III.

We entertain some considerable doubt about whether Ms. Whitmore has made out a sufficient case that Mr. Bartee continued to subject her to actionable sexual harassment during the period when General Growth managed the mall. We pass over that point, however, because we think that the district court correctly granted summary judgment on the lack of proof of...