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Eighth Circuit Court of Appeals Finds Request for Grooming Assistance In Addition to Sexual Advances Supports Quid Pro Quo Harassment Claim

on Thursday, 6 February 2014 in Labor & Employment Law Update: Sarah M. Huyck, Editor

The United States Court of Appeals for the Eighth Circuit rejected the district court’s finding that a municipal worker fired after complaining her boss made unwanted physical advances could not establish quid pro quo harassment under Title VII. The district court found the supervisor’s alleged behavior was “asexual,” or not based on sex. The Eighth Circuit affirmed summary judgment for the employer on the hostile work environment claim, finding that while the supervisor’s behavior was “inappropriate,” it did not rise to the level of severe or pervasive harassment required for a Title VII claim. However, the Eighth Circuit reversed the district court on the quid pro quo claim.


The employer, Bi-State Development Agency of the Missouri-Illinois Metropolitan District (“Metro”), hired the employee, Eartha McMiller (“McMiller”), in March of 2007. Louis Brown (“Brown”), a supervisor, played a key role in hiring McMiller who was an acquaintance of Brown’s wife. Brown made recommendations about changes to McMiller’s resume and coached her on job interview questions.


Brown was McMiller’s direct supervisor, and within the first month of McMiller’s employment, Brown began making sexual advances toward McMiller. In April 2007, McMiller alleged that while walking through a storeroom, Brown put his arms around McMiller’s shoulders and kissed the side of her face. McMiller told Brown, “[D]on’t do that, you better be careful of that type of behavior. I am not comfortable with that type of action from you.”


Approximately a month later, Brown allegedly again tried to put his arm around Brown’s shoulder, this time in her office. McMiller indicated she responded by pushing him away. McMiller allegedly told Brown, “I have told you about this before, don’t do that” and “you need to be careful.” Following the second incident, Brown allegedly began treating McMiller in a biased and angry manner. McMiller claimed she was not able to discuss anything work related with Brown, and Brown allegedly warned McMiller “not to try to go to anybody and talk to them about nothing, anything at all.”


In July 2007, McMiller spoke with Kathy (Hunt), Brown’s direct supervisor. McMiller told Hunt that Brown was harassing her and doing improper things. Allegedly, Hunt indicated she would follow up with McMiller about her allegations, but they did not speak again about the complaint. At about the same time, the manager of production and inventory control, Tony (Miller), reported to Hunt some concerns about McMiller wearing revealing clothes rather than the uniform, not completing her duties timely or accurately, and arriving late to work. McMiller explained that she wore the nonuniform clothing at Brown’s suggestion. McMiller also claimed Brown never reprimanded her for her tardiness, but McMiller admitted she had some job performance issues.


Hunt instructed Brown to create a performance improvement plan documenting the performance concerns and the consequences if McMiller failed to make changes. Brown prepared the plan, Hunt reviewed it and Brown provided it to McMiller on July 18, 2007. Two days later, Brown provided McMiller with a second memorandum documenting performance issues.


According to McMiller, in July or August of 2007, Brown called McMiller into his office and locked the door. McMiller inquired about the performance improvement plan, and Brown mentioned a report about McMiller’s performance. Brown told McMiller to “come over here” to remove an ingrown hair from his chin. McMiller refused and reminded Brown she had already told him “to be careful of that type of behavior.” Brown placed a tweezer in McMiller’s hand and instructed her to remove the hair while McMiller protested that she could not see the hair. Brown directed McMiller to look again and stated, “You know I can terminate you.” McMiller then moved toward the office door, but Brown put his hand on her wrist, removed her hand from the door knob and put his arms around her. Brown kissed the side of her face and forehead while McMiller attempted to remove his arms. Brown placed her in a “locked position” and told her that he was “not going to let anything happen to [her]…” McMiller indicated she was not worried about termination since she was learning and following instructions.


In late August 2007, based on a meeting with Hunt, Brown, and Miller regarding McMiller’s performance and Hunt’s own observations, Hunt directed Brown and Miller to terminate McMiller. Brown and Miller met with McMiller to terminate her. McMiller again raised Brown’s allegedly inappropriate behavior. McMiller was told she could appeal her termination.


The district court granted Metro’s motion to dismiss the sex discrimination claim and later granted summary judgment to Metro on the sexual harassment claims. McMiller appealed the sexual harassment claims.


The Eighth Circuit agreed with the district court’s grant of summary judgment on the hostile work environment claim, but found that a “reasonable jury could conclude that Brown made a strange request for grooming assistance in an effort to bring McMiller into close physical proximity to gratify himself sexually in exchange for protecting her job.” During the encounter with the ingrown hair, Brown allegedly referred to his ability to protect her from being terminated and kissed and touched her. The court stated that a reasonable jury could infer a causal relationship existed between McMiller’s termination and her refusal of Brown’s advances. The court found there was a genuine issue of fact as to “whether Brown was motivated by sex and whether he intentionally and proximately caused her termination through influence on Hunt.”

Kara Stockdale

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