Mytosha Merritt v. Albemarle Corp. ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-2952
___________
Mytosha Merritt, *
*
Plaintiff/Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Albemarle Corporation, *
*
Defendant/Appellee. *
___________
Submitted: May 18, 2007
Filed: August 6, 2007
___________
Before WOLLMAN, BRIGHT, and JOHN R. GIBSON, Circuit Judges.
___________
WOLLMAN, Circuit Judge.
Mytosha Merritt appeals from the district court’s1 order granting summary
judgment in favor of Albemarle Corporation (Albemarle), on her claim that she had
been constructively discharged in violation of the Arkansas Civil Rights Act of 1993,
Ark. Code Ann. § 16-123-101, et seq. We affirm.
1
The Honorable Harry F. Barnes, United States District Judge for the Western
District of Arkansas.
I.
Merritt worked for Shaw Group, Inc. (Shaw), an employee leasing company.
After working for approximately four months as a general laborer, she was assigned
to work at Albemarle’s brine plant as a lubrication technician in the lubrication
subgroup of Albemarle’s Predicative Maintenance/Preventive Maintenance Group
(PM/PD Group). The PM/PD Group was responsible for maintaining equipment such
as pumps and compressors. The lubrication subgroup was responsible for changing
the oil in the pumps and other equipment. Sometimes changing the oil would require
two individuals; sometimes it would require only one.
In the lubrication subgroup, Merritt worked with Eric Eades, another individual
from Shaw, and Greg Dodson, an Albemarle employee. Both Merritt and Eades were
lubrication technicians. Dodson was a reliability technician. Merritt considered Eades
to be an unsafe worker because, when changing the oil on equipment (including
sulphuric acid pumps), Eades sometimes neglected to lock out and tag out the
machine. Dodson and the individual in charge of the PM/PD Group, Jason Bitting,
testified in their depositions that the lock-out/tag-out procedure involves cutting off
the energy to a machine. The procedure prevents equipment (many of the machines
are automated) from restarting automatically and moving unexpectedly, which could
catch an employee by surprise. Bitting acknowledged that exposure to sulphuric acid
was within the range of possible hazards if something unexpected and out of the
ordinary occurred. In her deposition, Merritt contended that failing to perform the
lock-out/tag-out procedure is “very dangerous” because “pressure could build up,
chemicals could leak, burn up a pump or burn up a compressor, anything.”2 Merritt
testified that it was sometimes necessary to not follow the procedure. On such
occasions, permission was required, as well as knowledge of “what was going on with
2
Merritt does not appear to advance this theory on appeal. Instead, she argues
that there is a danger of moving machine parts and a risk of exposure to sulphuric
acid.
-2-
that particular piece of equipment.” Merritt acknowledged that she had sometimes
changed oil on machines without first locking out or tagging out the equipment, but
contends that she had been granted permission to omit the procedure. Others,
including Eades and Eades’s predecessor, had also omitted the procedure with
permission. Merritt could recall four or five occasions on which Eades, lacking
permission, omitted the procedure. When Merritt worked with Eades, she would try
to double-check to see if the equipment had been locked and tagged out. She was
unable to do so on every occasion, however, because she and Eades would sometimes
be separated by a short distance when they worked together.
On one occasion, Merritt refused to perform a task because Eades had not
locked out or tagged out the equipment.3 Dodson spoke with Eades and told him to
lock out and tag out the machine. Eades complied. There is nothing in the record
indicating that Eades had failed to comply with the lock-out/tag-out procedure
thereafter.
Approximately three or four months after Merritt had started in the lubrication
subgroup, Dodson began making unwelcome sexual advances toward her. When she
resisted these advances, Dodson threatened to contact her supervisors at Shaw and
have her fired. In the face of this pressure, Merritt succumbed, and they had sexual
relations. On numerous subsequent occasions, Dodson continued to pressure Merritt
to have sexual relations with him, threatening her job and threatening to assign her to
work with Eades, whom he knew Merritt considered dangerous. Merritt testified that
when she resisted Dodson’s advances he would assign her to work with Eades.
Although Merritt and Eades were the only two lubrication technicians, Dodson would
occasionally change the oil on equipment as well. Consequently, on tasks requiring
two people, Dodson could have assigned himself to work with Merritt or Eades, thus
3
Apparently, Eades had been told by an operator that it was not necessary to
lock out or tag out that particular pump.
-3-
preventing Merritt from having to work with Eades. Merritt also testified that she
could elect to work alone (presumably leaving Dodson to work with Eades on two-
person jobs) unless Dodson chose to intervene and assign her to work with Eades,
which he did on a regular basis.
Merritt was distraught over her situation and began to take up drinking. She did
not tell anyone about the harassment until June 16, 2004, when she told Bitting that
Dodson had been pressuring her to have sex with him. When Bitting asked Merritt
whether she wanted to tell Shaw about this, Merritt declined, stating that she was not
emotionally capable of doing so. Merritt then walked out and never returned.
Merritt filed this action against Albemarle and Dodson in the Circuit Court of
Columbia County, Arkansas. The case was subsequently removed to federal district
court under 28 U.S.C. §§ 1441(a) and 1332(a), and Dodson was dismissed from the
case. The district court granted Albemarle’s motion for summary judgment,
concluding that because there was no evidence that Dodson was Merritt’s supervisor
or that Albemarle knew or should have known of Dodson’s alleged conduct,
Albemarle was entitled to judgment as a matter of law.4
II.
We review the district court’s order granting Albemarle’s motion for summary
judgment de novo. Ferguson v. United States, 484 F.3d 1068, 1072 (8th Cir. 2007)
(citation omitted). Summary judgment is appropriate when the evidence viewed in the
light most favorable to the nonmoving party presents no genuine dispute of material
fact and the moving party is entitled to judgment as a matter of law. Fischer v.
Andersen Corp., 483 F.3d 553, 556 (8th Cir. 2007).
4
The district court assumed for purposes of the summary judgment motion that
Albemarle was Merritt’s employer.
-4-
Although Merritt’s claim is based on Arkansas law, we review cases arising
under the Arkansas Civil Rights Act of 1993 in the same manner as Title VII claims.
Henderson v. Simmons Food, Inc., 217 F.3d 612, 615 n.3 (8th Cir. 2000) (citation
omitted); Island v. Buena Vista Resort, 103 S.W.3d 671, 675-76 (Ark. 2003) (stating
that Arkansas courts will look to “Title VII and federal cases interpreting Title VII for
guidance on sexual-harassment claims brought pursuant to the Arkansas Civil Rights
Act”). Merritt must show that she was “‘subjected to unwelcome sex-based
harassment that was sufficiently severe or pervasive to alter a term, condition, or
privilege of her employment.’” Cheshewalla v. Rand & Son Constr. Co., 415 F.3d
847, 850 (8th Cir. 2005) (quoting Joens v. John Morrell & Co., 354 F.3d 938, 940 (8th
Cir. 2004)), cert. denied, 546 U.S. 1091 (2006).
If this threshold is met, we must determine whether Dodson was a co-worker
or a supervisor. If Dodson was a co-worker, Merritt must show that Albemarle
“‘knew or should have known of [Dodson’s] conduct and failed to take proper
remedial action.’” Joens, 354 F.3d at 940 (quoting Dhyne v. Meiners Thriftway, Inc.,
184 F.3d 983, 987 (8th Cir. 1999)). If, however, Dodson was Merritt’s supervisor,
Albemarle “is vicariously liable for the harassment unless it can establish the
affirmative defense defined” in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765
(1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998). Id.“[T]o be considered a supervisor, ‘the alleged harasser must have had the power
(not necessarily exercised) to take tangible employment action against the victim, such
as the authority to hire, fire, promote, or reassign to significantly different duties.’”
Weyers v. Lear Operations Corp., 359 F.3d 1049, 1057 (8th Cir. 2004) (quoting Joens,
354 F.3d at 940). The fact that an alleged harasser may have been a “team leader”
with the authority “to assign employees to particular tasks” will not be enough to
make that person a supervisor. Id. (holding that the fact that the alleged harasser may
have been a team leader who was responsible for ensuring that an assembly line ran
-5-
according to schedule and assigned tasks on the line – which had an impact on the
employees’ training – was not enough to make that person a supervisor).
Dodson lacked the authority to take such tangible employment actions as hiring,
firing, or promoting Merritt. Nor could he assign her to significantly different duties.
In other words, Dodson was not empowered to effect “a significant change in
[Merritt’s] employment status,” and lacked the authority “to make economic decisions
affecting other employees.” Pa. State Police v. Suders, 542 U.S. 129, 144 (2004)
(quotation omitted). His authority was restricted to assigning Merritt to work on
various tasks that were part of her work duties; sometimes with Eades. This authority,
which was no greater than that possessed by the team leader in Weyers, was not
sufficient to make Dodson a supervisor.
Merritt contends that Dodson was a supervisor because he had the power to
assign her to work with an unsafe co-worker. In making this argument, she relies
upon the Supreme Court’s decision in Suders, which quotes language from the First
Circuit suggesting that giving someone “‘an extremely dangerous job assignment to
retaliate for spurned advances’” may constitute a tangible employment action. Suders,
542 U.S. at 150 (quoting Reed v. MBNA Mktg. Sys. Inc., 333 F.3d 27, 33 (1st Cir.
2003)). Merritt thus contends that Dodson was her supervisor because he had the
power to take tangible employment action against her by giving her the “extremely
dangerous job assignment” of working with Eades. This argument is unavailing.
Merritt offers no support for the suggestion that scheduling her to work with Eades
should be considered a job assignment (extremely dangerous or otherwise) triggering
vicarious liability on the part of Albemarle, rather than a mere assignment to particular
tasks. There is no indication, for example, that Dodson’s assignments were
“documented in official company records” or were “subject to review by higher level
supervisors.” Id. at 144-45 (quotation omitted), which are circumstances that typically
accompany a tangible employment action. Accordingly, even if a hazardous job
assignment may, in some cases, constitute a tangible employment action indicative of
-6-
supervisory authority (a question we need not resolve today), we are not convinced
that Dodson’s authority to assign Merritt to work on tasks with Eades sufficed to make
him a supervisor. We note, moreover, that the language upon which Merritt relies was
dicta in both Reed and Suders, as in neither case was the quoted language material to
the resolution of the issues before those respective courts. In light of the foregoing,
we conclude that Suders does not support Merritt’s contention that Dodson was her
supervisor. Moreover, because Dodson was simply a co-worker, Merritt’s other
citations to Suders do not materially assist her. Cf. Suders, 542 U.S. at 143 n.6
(“Ellerth and Faragher expressed no view on the employer liability standard for co-
worker harassment. Nor do we.”).
Merritt also suggests that she was not afforded the opportunity to conduct
discovery pertaining to various factual issues that Albemarle discusses on appeal,
arguing that these matters were neither raised by Albemarle’s motion for summary
judgment nor addressed by the district court. We reject this argument. Although the
factual issues relevant to this appeal could have been articulated with greater fullness
and specificity, we believe that they were sufficient to apprise Merritt whether further
discovery would have been helpful. Finally, we reject Merritt’s invitation to adopt a
broader definition of supervisor, as this court has already settled upon the definition
reflected in Joens.
In sum, under Weyers, Dodson’s authority to assign Merritt to particular tasks
was not sufficient to make him a supervisor. Accordingly, because Dodson was not
her supervisor, Merritt was required to show that Albemarle either knew of or should
have known of Dodson’s conduct. Since there is no evidence to this effect, summary
judgment was appropriate.
The judgment is affirmed.
______________________________
-7-