In Cruse v. Bi-State Development Agency of Missouri-Illinois Metropolitan District, No. 4:20-cv-366-MTS, 2022 WL 1185149 (E.D.Mo. April 21, 2022), the court, inter alia, held that factual issues precluded summary judgment on plaintiff’s claims of sexual harassment.
In sum, plaintiff alleged that her supervisor (Brew) sexually harassed her, both in person and by phone, and that nothing was done after plaintiff complained.
Turning to the sexual harassment claims against Bi-state, Jordan alleged two forms: hostile work environment and quid pro quo harassment.5 To prove quid pro quo harassment, evidence must show (1) Jordan was a member of a protected class; (2) Jordan was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors; (3) Brew’s harassment was based on sex; and (4) that “submission of unwelcome advances was an express or implied condition for receiving job benefits or [that] refusal to submit resulted in a tangible job detriment.”6 Butler v. Crittenden Cty., Ark., 708 F.3d 1044, 1049 (8th Cir. 2013) (quoting Newton v. Cadwell Labs., 156 F.3d 880, 882 (8th Cir. 1998)). To prove hostile work environment, evidence must show that (1) Jordan was a member of a protected group; (2) Jordan was subject to unwelcome harassment; (3) Brew’s harassment was based on sex; (4) his harassment affected a term, condition, or privilege of Jordan’s employment. E.E.O.C. v. CRST Van Expedited, Inc., 679 F.3d 657, 683 (8th Cir. 2012). Because the alleged harassment was committed by Jordan’s supervisor, Bi-state may be strictly or vicariously liable for Brew’s sexual harassment.7 Vance v. Ball State Univ., 570 U.S. 421, 428 (2013); Crawford v. BNSF Ry. Co., 665 F.3d 978, 983 (8th Cir. 2012).
“Regardless of whether [Jordan’s] claim is styled as hostile work environment or quid pro quo sexual harassment, the law is clear that the frequency and type of conduct is of the utmost importance in determining whether sexual harassment has occurred.” Brown v. Adams & Assocs., Inc., 4:19-cv-01864-MTS, 2020 WL 7360336, at *4 (E.D. Mo. Dec. 15, 2020). Exactly those things are in dispute here. There are significant disputes as to Brew’s conduct—how often he interacted one-on-one with Jordan, the frequency of his inappropriate conduct, the severity of his conduct, and whether he made the comments and passes of which Jordan complains. Pye, 641 F.3d at 1018 (explaining factors for determining whether conduct rises to the level of harassment include frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating; and whether it unreasonably interfered with an employee’s work performance). And whether Brew’s “conduct rose to the level of sexual harassment is usually a factual determination for the jury,” especially considering the mountain of disputed facts relating to Brew’s conduct. Moring v. Ark. Dept. of Correction, 243 F.3d 452, 456 (8th Cir. 2001). These factual disputes necessarily affect the outcome of the suit. Alvarez v. Des Moines Bolt Supply, Inc., 626 F.3d 410, 419 (8th Cir. 2010) (“When an employee complains about inappropriate conduct that does not rise to the level of a violation of law, however, there is no liability for a failure to respond.” (citing Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 67 (1st Cir. 2002)) (“In the absence of conduct creating a sex-based hostile educational environment, laxity on the part of school officials in investigating an incident is not actionable under Title IX.”)).
There is also a dispute whether Brew’s alleged sexual harassment or Jordan’s failure to submit to Brew’s unwanted sexual propositions led to Jordan’s “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”8 Vance, 570 U.S. at 431 (describing tangible employment actions). Or whether “[l]esser actions than demotion, suspension, or termination [constituted] adverse employment actions [because] their cumulative effect cause[d] [Jordan] to suffer ‘serious employment consequences’ that adversely affect[ed] or undermine[d] [her] position.’ ”9 Charleston v. McCarthy, 926 F.3d 982, 989 (8th Cir. 2019) (quoting Shockency v. Ramsey Cnty., 493 F.3d 941, 948 (8th Cir. 2007)). Thus, whether Brew’s alleged harassment culminated into a “tangible employment action” is a material factual dispute. See Vance, 570 U.S. at 424 (“If the supervisor’s harassment culminates in a tangible employment action, the employer is strictly liable.”).
But even if no tangible employment action was taken against Jordan, there remains disputed facts relating to whether Bi-State “exercised reasonable care to prevent and correct any harassing behavior.” Vance, 570 U.S. at 424 (explaining even if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that the “employer exercised reasonable care to prevent and correct any harassing behavior”);10 Brenneman v. Famous Dave’s of Am., Inc., 507 F.3d 1139, 1145 (8th Cir. 2007) (explaining this element of the affirmative defense is comprised of “two prongs: prevention and correction”).11 Specifically, there is a dispute as to whether and when Bi-state had actual or constructive notice of the harassment,12 Jenkins v. Winter, 540 F.3d 742, 751 (8th Cir. 2008), which is of “paramount importance” when assessing whether an employer exercised reasonable care to prevent or promptly correct any sexually harassing behavior. Crawford, 665 F.3d at 984. There are also genuine disputes regarding the remedial action Bi-State did take. Ogden v. Wax Works, Inc., 214 F.3d 999, 1007 (8th Cir. 2000) (finding employer not entitled to affirmative defense when employer minimized the plaintiff’s complaints of sexual harassment, performed a cursory investigation, and eventually forced her to resign without disciplining the harasser); see also Weger, 500 F.3d at 722 (applying affirmative defense where harassment ended soon after report was made). These facts are necessary to determine Bi-State’s liability. Vance, 570 U.S. at 424 (explaining an employer is liable for its supervisor employees’ actions in violation of Title VII unless it can show it took preventative action and immediate and appropriate corrective action).
But the factual disputes discussed supra preclude the Court from determining whether Brew’s actions amounted to “harassment” or “hostile work environment” as a matter of law.13 These outstanding factual disagreements likely can be resolved only by a determination of the parties’ credibility and the weighing of the evidence—but such matters are for a jury to resolve at trial, not the Court on a motion for summary judgment. Jackson v. United Parcel Serv., Inc., 643 F.3d 1081, 1085 (8th Cir. 2011) (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011))). The Court does not have a full picture of either Brew’s interactions with Jordan or the context surrounding those interactions.
The court concluded that “[t]he number of disputed facts that are relevant to deciding whether Brew’s conduct rises to the level of unwelcome sexual harassment or affect a term, condition, or privilege of employment, renders summary judgment inappropriate.”