Gina Jenkins v. Gordon England ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-2049
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Gina Jenkins, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Donald C. Winter, *
Secretary of The Navy, et al. *
*
Appellees. *
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Submitted: March 14, 2008
Filed: September 2, 2008
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Before MURPHY, BRIGHT, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Gina M. Jenkins sued Donald C. Winter,1 Secretary of the Navy (the Navy),
End to End, Inc. (ETE), Wesley Jones, and Clayton Hartley for sexual harassment and
retaliation. In addition, Jenkins asserted state law claims against Jones and Hartley
for assault and battery, and defamation of character. The Navy and ETE moved for
summary judgment; the district court granted it. The court also granted Hartley’s
1
Pursuant to Fed. R. App. P. 43(c)(2), Secretary of the Navy, Donald C. Winter
is automatically substituted for his predecessor, Gordon R. England, as appellee.
motion to dismiss and dismissed the state law claims against Jones. Jenkins appeals
the district court’s grant of summary judgment for the Navy. Having jurisdiction
under 28 U.S.C. § 1291, this court affirms in part, reverses in part, and remands.
I.
In this summary judgment context, this court states the facts most favorably to
Jenkins, the non-moving party. See Anda v. Wickes Furniture Co., 517 F.3d 526,
531 (8th Cir. 2008).
Jenkins worked as a Program Analyst, or statistician, for the Navy Recruiting
District Office in Kansas City, Missouri, from October 2001 to March 2006. A
civilian employee, she was hired by ETE, a contractor that provided technical and
administrative workers for the Navy. At the time of the harassment, Jenkins’s
immediate supervisor was the head of the Enlisted Programs Office, Lieutenant
Commander Mary Kortz. The immediate supervisor of the Enlisted Programs Office
was Executive Officer Michael Borrosh. The ultimate supervisor of the Enlisted
Programs Office was Commanding Officer Scott Hale.
Jones, the harasser, was the Command Master Chief for the Kansas City office.
He started work there on October 14, 2003. Hartley, who allegedly retaliated against
Jenkins, was the Chief Recruiter at the command.
Jenkins alleges the harassment started October 16, 2003. She claims Jones
made daily comments about how attractive and sexy she was, leered suggestively at
her, and repeatedly asked her for sex. He made comments such as: (1) “he had girls
who would give him ‘blow jobs’ if she would not do anything for him”; (2) “let’s do
it one time, I will let you be in control”; and (3) “he would give her ‘a dollar to dance
on his desk.’” Jones also was hostile toward Jenkins when she rejected him. He would
give her mean looks, curse and swear at her, and say she was on his “‘shit list’ for not
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dating him.” On one occasion, in “late November,” Jones inappropriately touched and
fondled Jenkins’s leg and inner thigh. Another employee was in the office at the time
and witnessed the incident.
During the week of November 17, Jenkins talked to the Command Managed
Equal Opportunity Officer Sean Williamson. She told Williamson about Jones’s
comments and behavior, but did not say anything about the touching incident. She
indicated she did not want to file a formal complaint at the time.2 According to
Jenkins, Williamson agreed “not knowing the severity of the situation, and only with
[her] assurance that [she] would immediately report the incident if the situation did not
stop immediately.” Following the Navy’s policy, he encouraged her to handle the
matter informally – to talk to Jones and ask him to stop.
Under the Navy’s sexual harassment policy, a person who has been harassed
is encouraged, but not required, to resolve the situation informally by addressing
concerns with the person demonstrating the behavior. If the behavior does not stop,
then the person is to notify the chain of command.3
Following the conversation with Williamson, Jenkins talked to Jones telling
him she “was uncomfortable with his behavior.” She told him she was married, and
2
In the January 21, 2004, written statement about the harassment and retaliation,
Jenkins explains, “I did not give [Williamson] names or details” and “I told him that
I did not want to file a formal complaint at this time.” However, Williamson in his
deposition says Jenkins told him vaguely about the situation, telling him that Jones
made inappropriate comments. Because this court views the evidence most favorably
to Jenkins, it will assume she told Williamson about Jones. See Anda, 517 F.3d at
531.
3
There is a dispute as to whether the Navy’s sexual harassment policy applies
to Jenkins because she was employed by ETE. In addressing Jenkins’s appeal against
the Navy, this court assumes the Navy’s policy applies. Jenkins’s chain of command
includes Kortz, Borrosh, and Hale.
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even if she were single, she “would never date or sleep with a co-worker.” Jones
listened but “had no further comments.”
Williamson, in the plan of the week for November 21 to 28, sent a note to all
military personnel stating: “all personnel are responsible for treating others with
mutual respect and dignity. This means fully and faithfully complying with the
Navy’s policy of zero sexual harassment.” On Monday, November 24, he sent an
email to military personnel reiterating the same point. After receiving the email,
Borrosh asked Jenkins if she was being harassed by anyone at work. Jenkins told
Borrosh that she “was experiencing something that was making me uncomfortable but
that I had talked to the CMEO and was handling it on my own.” Following the
conversation with Borrosh, Jenkins received two phone calls from officers in the
district, including Chief Daniel Hartman, who said he learned of the harassment from
Chief Frank Waranch. Each caller asked about the harassment between Jones and her.
Jenkins explains: “From that point, who did or did not know was no longer in my
control and the situation spiraled from there.”
The following Monday, December 1, Hale, the Commanding Officer, learned
of the situation between Jenkins and Jones. Hale called Williamson, who told him it
was being handled informally. Hale also talked to Jones, who denied knowing
anything. On December 4, 2003, Hale asked Jones, Jenkins, Williamson, Hartley,
Borrosh, and others to discuss the situation in his office. Initially refusing, Jenkins
informed the entire group of each of the incidents . . . . Up to this
moment, although . . . [Williamson] and . . . [Borrosh] did know
someone had made me feel uncomfortable, I had not informed any
person in the Chain of Command as to the severity of what had been
transpiring. I genuinely believe that every person present at this time
was shocked and angry to hear what . . . I had to say.
According to Jenkins, the harassment ended that day, December 4.
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A formal investigation was completed on January 24. Following the
investigation, Jones was placed on permanent administrative leave on January 26, and
detached for cause on February 23. If a Command Master Chief is detached for cause,
there is no further job with the Navy. The individual is forced to retire and his Navy
career is terminated.
Jenkins received awards from the Navy in 2004 and 2005 for “exceptionally
outstanding performance as a statistician,” and “on-the-spot” bonus awards from ETE
at the end of the year in 2003, 2004, and 2005. She remained in her job after
December 4, 2003, and her job duties did not change; she did not receive any kind of
demotion or reassignment. She resigned from her job on March 10, 2006, because the
Kansas City recruiting office closed.
II.
Ruling on the motions for summary judgment, the district court deemed
admitted all facts stated in the Navy’s summary judgment motion. See W.D. Mo. R.
56.1(a). The court concluded that Jenkins had “failed to specifically controvert in
numbered paragraphs the Defendant’s statement of facts in her response to the
pending motion for summary judgment.” The court stated:
In her response, plaintiff sets forth her own statement of facts, many of
which are not supported by competent evidence that could be considered
by the Court in the summary judgment context. Consequently, the facts
stated below are derived from Defendant’s statement of facts, unless
otherwise indicated.
This court reviews for abuse of discretion. Jones v. United Parcel Serv., Inc., 461
F.3d 982, 990 (8th Cir. 2006), cert. denied, 127 S. Ct. 2088 (2007).
“Local Rule 56.1 places size and content limitations on a non-movant’s
response to a summary judgment motion.” Id. It states:
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Suggestions in opposition to a motion for summary judgment shall begin
with a section that contains a concise listing of material facts as to which
the party contends a genuine issue exists. Each fact in dispute shall be
set forth in a separate paragraph, shall refer specifically to those portions
of the record upon which the opposing party relies, and, if applicable,
shall state the paragraph number in movant’s listing of facts that is
disputed. All facts set forth in the statement of the movant shall be
deemed admitted for the purpose of summary judgment unless
specifically controverted by the opposing party.
W.D. Mo. R. 56.1(a).
Here, Jenkins properly followed Local Rule 56.1. In her motion opposing
summary judgment, Jenkins, after the preliminary statement, included a concise listing
of material facts as to which she contends a genuine issue exists. The list contained
37 separate facts set forth in separate paragraphs. Each fact, except one, referred
specifically to portions of the record. Although less than half of Jenkins’s facts
referenced the specific paragraph number in the Navy’s listing of facts, this is required
only if applicable. Local Rule 56.1 does not require Jenkins to specifically controvert
in numbered paragraphs the Navy’s statement of facts (contrary to the district court’s
conclusion). See id. Further, Jenkins disputed the material facts most relevant to the
issues raised in the summary judgment motion (i.e., whether Jones was her supervisor,
the Navy’s sexual harassment policy and training, when the Navy became aware of
the harassment, when she reported the harassment, and whether there was retaliation
afterwards).
The district court erred in not considering Jenkins’s statement of facts. See
Anda v. Wickes Furniture Co., 517 F.3d 526, 531 (8th Cir. 2008) (considering a
summary judgment motion, the district court views the evidence and draws all
inferences in a light most favorable to the non-moving party).
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III.
The district court concluded that Jenkins’s statement of facts were not
supported by competent evidence that could be considered for summary judgment:
Plaintiff provides the purported “affidavit” of Chief Waranch . . . .
Waranch’s “affidavit,” however, is not a valid affidavit because it was
not verified in that it does not bear a notary stamp or seal, and the
document does not qualify as an unsworn declaration pursuant to 28
U.S.C. § 1746 because it was not sworn to be true under penalty of
perjury; See also DeMars v. O’Flynn, 287 F. Supp. 2d 230 (W.D.N.Y.
2003). Therefore, the Court will not consider this ‘affidavit’ in ruling on
the pending motions for summary judgment.
At oral argument, the original of the Frank Waranch affidavit was presented to the
court. It is a valid affidavit – signed, attested before a notary public, and bearing a
notary seal. See Elder-Keep v. Aksamit, 460 F.3d 979, 984 (8th Cir. 2006).
The Navy argues, even if the affidavit is valid, it is hearsay and should not be
considered on summary judgment. The Navy also claims the Daniel Hartman
affidavit is hearsay, too. Chief Hartman’s affidavit states: “I learned that command
Master Chief Jones was making inappropriate comments to Ms. Gina Jenkins during
a telephone conversation.” Chief Waranch’s affidavit states: “Because it was
necessary for me to speak with Gina Jenkins regularly concerning statistics for the
area I supervised, I spoke with her often. I became aware that she was being harassed
by Chief Jones shortly after it began.” Jenkins concedes these two statements are
hearsay, but insists the affidavits are still admissible because the rest of the affidavits
are based on personal knowledge.
Rule 56(e)(1) of the Federal Rules of Civil Procedure requires affidavits to be
“made on personal knowledge, set out facts that would be admissible in evidence, and
show that the affiant is competent to testify on the matters stated.” “When an affidavit
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contains an out-of-court statement offered to prove the truth of the statement that is
inadmissible hearsay, the statement may not be used to support or defeat a motion for
summary judgment.” Brooks v. Tri-Systems, Inc., 425 F.3d 1109, 1111 (8th Cir.
2005). See generally Fed. R. Evid. 801(c) (“‘Hearsay’ is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.”).
As Jenkins indicates, the two statements above are hearsay and may not be used
to defeat the Navy’s summary judgment motion. However, other statements in the
affidavits may be considered as they are based on personal knowledge. For example,
Waranch and Hartman were in the same district as Jenkins during the time the
harassment occurred, they contacted together the Command Managed Equal
Opportunity Officer about the harassment, and they were present at meetings when
the harassment was discussed. Waranch also claims he suffered retaliation for
standing up for Jenkins and witnessed retaliation against Jenkins. Clearly, these
statements may be considered when reviewing a summary judgment motion. See Fed.
R. Civ. P. 56(c), (e).
The district court erred in excluding the Waranch affidavit. The Waranch and
Hartman affidavits are admissible for consideration in the summary judgment context.
IV.
This court reviews de novo a grant of summary judgment. Anda v. Wickes
Furniture Co., 517 F.3d 526, 531 (8th Cir. 2008). Viewing the evidence and drawing
all inferences most favorably to the non-moving party, this court affirms if there is no
genuine issue of material fact and the moving party is entitled to judgment as a matter
of law. Id., citing Fed. R. Civ. P. 56(c).
Title VII prohibits employers from discriminating based on sex with respect to
compensation, terms, conditions, or privileges of employment. 42 U.S.C. § 2000e-
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2(a)(1). “Discrimination based on sex that creates a hostile or abusive working
environment violates Title VII.” Brenneman v. Famous Dave’s of Am., Inc., 507
F.3d 1139, 1143 (8th Cir. 2007), quoting Weger v. City of Ladue, 500 F.3d 710, 718
(8th Cir. 2007).
To establish a prima facie hostile work environment claim for co-worker
harassment, Jenkins must prove: (1) she was a member of a protected group; (2) the
occurrence of unwelcome harassment; (3) a causal nexus between the harassment and
her membership in the protected group; (4) the harassment affected a term, condition,
or privilege of employment; and (5) the employer knew or should have known of the
harassment and failed to take prompt and effective remedial action. See Anda, 517
F.3d at 531.
For supervisor harassment, Jenkins must prove only the first four elements to
establish a prima facie case. See Brenneman, 507 F.3d at 1139. If a prima facie case
is shown, the employer is vicariously liable unless it demonstrates that it is entitled to
the Ellerth-Faragher affirmative defense. See id. at 1144, citing 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). The affirmative defense is unavailable if the employee
suffers a tangible employment action. Brenneman, 507 F.3d at 1144. “A tangible
employment action is a significant change in employment status, such as hiring, firing,
failing to promote, reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.” Id. (internal quotation marks
omitted). “If there is no tangible employment action, the employer may assert the
affirmative defense.” Id.
For purposes of summary judgment, the district court analyzed Jenkins’s hostile
work environment claim under both the co-worker and supervisor standards. It
concluded the Navy took: (1) reasonable care to avoid sexual harassment by a co-
worker, and (2) prompt and effective measures to prevent and remedy any sexual
harassment by a supervisor and Jenkins failed to avail herself of available remedies.
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(The district court did not address whether Jenkins established the first four elements.)
Similarly, this court will consider whether Jenkins proved the Navy knew or should
have known of the harassment and failed to take prompt and effective remedial action,
and whether the Navy proved the affirmative defense. See Weger, 500 F.3d at 718.
A. Co-worker Harassment
“In determining whether the employer failed to take ‘prompt and effective
remedial action to end the harassment,’ [this court] consider[s] ‘the amount of time
between notice of the harassment and any remedial action, the options available to the
employer such as employee training sessions and disciplinary action taken against the
harassers, and whether or not the measures ended the harassment.’” Arraleh v.
County of Ramsey, 461 F.3d 967, 979 (8th Cir. 2006), cert. denied, 127 S. Ct. 2100
(2007), quoting Diaz v. Swift-Eckrich, Inc., 318 F.3d 796, 801 (8th Cir. 2003).
Notice is the key issue here.
“[W]here an employer has a complaint procedure delineating the individuals to
whom notice of harassment must be given,” actual notice is established when the
employee notifies those individuals. Weger, 500 F.3d at 721 (“because the
Department has a published policy that provides a procedure for reporting suspected
harassment, Plaintiffs must have invoked this procedure in order to establish actual
notice”). “Constructive notice, on the other hand, is established when the harassment
was so severe and pervasive that management reasonably should have known of it.”
Id., quoting Watson v. Blue Circle, Inc., 324 F.3d 1252, 1259 (11th Cir. 2003); see
also Smith v. St. Louis Univ., 109 F.3d 1261, 1265 n.3 (8th Cir. 1997) (stating
constructive notice may be shown if “the harassment was obvious to everyone”).
Jenkins insists the Hartman and Waranch affidavits are sufficient to overcome
summary judgment. Hartman, in his affidavit, states he learned of the harassment
“sometime before the meeting in December.” He continues:
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I discussed what Ms. Jenkins had told me with Chief Frank Warranch,
and I believe that he had already heard about it from someone else.
Together, we called the Command’s Equal Employment Opportunity
Officer and reported Ms. Jenkins’s’ [sic] allegations to him. Chief
Warranch and I were on a speaker phone discussing the matter with him.
At that time the EEO Officer was Sean Williamson. To the best of my
knowledge nothing happened after Chief Warranch and I reported
command master Chief Jones’ actions. Master Chief Jones’ actions were
pretty widely known among the command’s zone supervisors. We
discussed it among ourselves at production meetings but, of course, did
not discuss it outside supervisory ranks.
The Waranch affidavit states:
. . . . I became aware that she was being harassed by Chief Jones
shortly after it began. I first spoke with Chief Sean Williamson about the
harassment and later spoke personally with Master Chief Jones. Chief
Williamson did not do anything and Chief Jones told me to “stay within
my rank.” It was discussed in zone meetings between the zone
supervisors. . . .
We kept telling C.R. Hartley about the harassment but he was not
receptive to hearing about it. . . . I spoke with Chief Williamson about
the harassment on more than one occasion. I also spoke with Rick Field,
a retired Chief . . . and he reported what was going on to Chief
Williamson.
. . . . On one occasion, I went to the office of Command Officer
Hale and began to tell him about Chief Jones’ harassment of Gina
Jenkins. . . .
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. . . . After the incident where Master Chief Jones inappropriately
touched Gina Jenkins, Chief Dan Hartman and I together placed a
telephone call to the Equal Opportunity Officer, Sean Williamson and
told him about it. . . . I am not aware that he took any action as the result
of our telephone call. I went personally to Command Officer Hale and
told him about the inappropriate touching. . . . The command staff had
numerous opportunities to stop the harassment had they chosen to do so.
Viewing the evidence most favorably to Jenkins, the affidavits create a genuine
issue of material fact as to when the Navy learned of the sexual harassment. See
Morris v. City of Chillicothe, 512 F.3d 1013, 1018 (8th Cir. 2008) (“an issue of
material fact is genuine if the evidence is sufficient to allow a reasonable jury verdict
for the nonmoving party”). Although the affidavits do not provide specific dates, the
chronologies in the affidavits, read most favorably to Jenkins, suggest the Navy had
actual or constructive knowledge of the harassment well before the December 4
meeting. For instance, viewing Waranch’s affidavit most favorably to Jenkins, it is
reasonable to infer that the Navy had actual or constructive knowledge of the
harassment shortly after it began. This court does not weigh the evidence or make
credibility determinations. See id. (“In considering a motion for summary judgment
the court does not weigh the evidence, make credibility determinations, or attempt to
discern the truth of any factual issue.”), citing Thomas v. Corwin, 483 F.3d 516, 526-
27 (8th Cir. 2007). The evidence presented could persuade a reasonable jury to rule
in favor of Jenkins and find that the Navy failed to take prompt or effective remedial
measures to end the harassment.
The district court’s grant of summary judgment is reversed, as to co-worker
harassment.
B. Supervisor Harassment
The district court also analyzed Jenkins’s claim under the supervisor harassment
standard. Because Jenkins does not claim she suffered a tangible employment action,
the Navy may assert the Ellerth-Faragher affirmative defense. See Brenneman, 507
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F.3d at 1145. The defense has two elements: (1) the employer exercised reasonable
care to prevent and correct promptly any sexually harassing behavior; and (2) the
employee unreasonably failed to take advantage of any preventative or corrective
opportunities provided by the employer or to otherwise avoid harm. Id. “The first
element has two prongs: prevention and correction.” Id.
As relevant here, the correction prong requires the employer to show it
promptly corrected any sexual harassment that occurred. Id. [I]n applying the
correction prong, the employer’s notice of the harassment is of paramount
importance.” Weger, 500 F.3d at 720 (internal quotation marks omitted).
As discussed in section A, genuine issues of material fact exist as to when the
Navy had actual or constructive notice of the harassment. This goes to the correction
prong. Because the Navy fails to demonstrate as a matter of law that it acted promptly
to correct any sexual harassment, and thus fails to prove the first element of the
affirmative defense, summary judgment was inappropriate. See Anda, 517 F.3d at
531 (summary judgment appropriate only if there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law), citing Fed. R. Civ.
P. 56(c).
The district court’s grant of summary judgment is reversed, as to supervisor
harassment.
V.
In her opening brief, Jenkins does not present an issue for review as to
retaliation. She does not provide any argument on the retaliation claim. In fact, the
“Argument” portion of the brief does not include the word “retaliation.” In her reply
brief, Jenkins does object to the grant of summary judgment “in its entirety,” due to
“a wholly inadequate factual review.”
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Claims not raised in an opening brief are deemed waived. See Fair v. Norris,
480 F.3d 865, 869 (8th Cir. 2007); see also Express Scripts, Inc. v. Aegon Direct
Mktg. Servs., Inc., 516 F.3d 695, 702 (8th Cir. 2008), citing Miss. River Corp. v.
FTC, 454 F.2d 1083, 1093 (8th Cir. 1972) (“[p]roper judicial administration” requires
that appellant raise issues in opening brief); K.D. v. County of Crow Wing, 434 F.3d
1051, 1055 n.4 (8th Cir. 2006); Chay-Velazquez, 367 F.3d 751, 756 (8th Cir. 2004)
(“Since there was no meaningful argument on this claim in his opening brief, it is
waived.”). This court does not consider issues raised for the first time on appeal in a
reply brief “unless the appellant gives some reason for failing to raise and brief the
issue in his opening brief.” Neb. Plastics, Inc. v. Holland Colors Ams., Inc., 408
F.3d 410, 421 n.5 (8th Cir. 2005).
Jenkins does not provide a reason for failing to raise and brief the retaliation
claim in her opening brief. Therefore, it is waived. See Fair, 480 F.3d at 869.
The district court’s grant of summary judgment is affirmed, as to retaliation.
VI.
ETE asserts this court lacks jurisdiction to review any appeal against it because
Jenkins did not identify the district court’s grant of ETE’s summary judgment motion
as an issue on appeal. The Notice of Appeal indicates the issues are:
Whether the Affidavit submitted by plaintiff in opposition to defendant
[the Navy]’s Summary Judgment Motion and plaintiff’s denial of
defendant [the Navy]’s Statement of Uncontroverted Facts were
sufficient to overcome [the Navy]’s Motion.
Rule 3(c)(1)(B) of the Federal Rules of Appellate Procedure requires the notice
of appeal to “designate the judgment, order, or part thereof being appealed.” Parkhill
v. Minn. Mut. Life Ins. Co., 286 F.3d 1051, 1058 (8th Cir. 2002). This court
“construes notices of appeal liberally as long as the intent to appeal the judgment in
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question is apparent and there is no prejudice to the adverse party.” PCTV Gold, Inc.
v. SpeedNet, LLC, 508 F.3d 1137, 1142 (8th Cir. 2007).
Here, Jenkins’s intent to appeal the district court’s grant of ETE’s summary
judgment motion is not apparent from the notice of appeal. Permitting Jenkins to
assert claims against ETE would be prejudicial. Therefore, this courts lacks
jurisdiction to review the grant of ETE’s summary judgment motion. See Parkhill,
286 F.3d at 1059.
VII.
The judgment of the district court is affirmed in part, reversed in part, and the
case remanded.
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