Wanda L. Bowen v. MO Dept. of Social ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-3999
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Wanda L. Bowen, *
*
Appellant, * Appeal from United States
* District Court for the
v. * Eastern District of Missouri.
*
Missouri Department of *
Social Services, *
*
Appellee. *
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Submitted: June 14, 2002
Filed: December 2, 2002
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Before RILEY, BEAM, and MELLOY, Circuit Judges.
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RILEY, Circuit Judge.
Wanda L. Bowen (Bowen), a white female, worked as a case worker with the
Missouri Department of Social Services (DSS). Bowen resigned after complaining
she was subjected to a racially hostile work environment. Bowen thereafter filed a
Title VII lawsuit against both the DSS and the Missouri State Workers’ Union
(SWU), alleging a racially hostile work environment, retaliation, and constructive
discharge. The DSS and SWU filed motions for summary judgment, which the
magistrate judge, sitting by consent, granted. Bowen appeals the grant of summary
judgment in favor of the DSS on her racially hostile work environment claim.
Reviewing the grant of summary judgment de novo and applying the same standards
as the district court, Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839, 841-
42 (8th Cir. 2002), we reverse.
I. BACKGROUND
From May 1997 through May 1999, Bowen worked as a case worker for the
DSS. Upon hire, the DSS assigned Bowen to work in its midtown office in the City
of St. Louis. Bowen's immediate supervisor was Francine Lee (Lee), an African-
American. Bowen alleged Lee failed to provide her with training or supplies, and
treated her harshly.
Early in her employment Bowen heard multiple co-workers comment that Lee
did not like white people. By July 1997, Bowen believed Lee had been harsh with
her, and after a particular exchange over caseloads, Lee suggested, and Bowen
requested, a transfer to a different supervisor.
Upon learning she was being transferred, Bowen asked Lee what she should
do with her assigned case files. Lee responded, "I really don’t give a damn what you
do with them. You can do anything you want." Bowen then entered the office of
Ann Dintlemann (Dintlemann)1, Lee's supervisor, who is white. Bowen asked what
she should do with her assigned files. While Bowen was in Dintlemann's office, Lee
entered and said, "I see you beat me in here. I might have known you would have
done that. . . . Don’t you roll them eyes at me." Turning to Dintlemann, Lee said,
"Look, I want her out of my group and I want her out now. The sooner the better. Do
you hear me?"
1
In the record, Dintlemann has also been spelled Dintelmann.
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Upon leaving the office that evening, Bowen told Lee, "Good night, Francine."
In a loud, threatening voice, Lee responded, "You kiss my ass, you white bitch!"
Moving near Bowen, Lee warned, "You better move on out 'cause I'm on my own
time now." Within two days, Bowen filed a written grievance complaining of Lee's
"hateful and threatening remarks." The DSS did not discipline Lee.
Bowen was transferred to another African-American supervisor, Judith Watts
(Watts). Bowen retained her case worker position and continued to work on the same
floor in close proximity to Lee. On a near daily basis, Lee directed hostile stares at
Bowen.
In early January 1999, Bowen brought a pound cake to work to share with co-
workers. When Lee discovered Bowen had brought the cake, Lee threw it on the
floor and said, "Oops," stepped on it and again said, "Oops." Lee told Bowen’s co-
worker, "You can damn well tell her that I did it." Bowen filed a grievance
complaining of the cake incident.
About this same time, Bowen also filed a grievance against Dintlemann
alleging Dintlemann feared her subordinate African-American supervisors, especially
Lee. Bowen alleged that Dintlemann was an ineffectual department supervisor
because she ignored and concealed open and obvious racial harassment perpetrated
by African-American supervisors against white employees and consistently refused
to discipline African-American supervisors for their discriminatory conduct.
One of Bowen's white co-workers, who also was the union steward, Earl Malin
(Malin)2, testified Watts, Bowen's new supervisor, favored her African-American
employees. According to Malin, Watts rated African-Americans higher in
2
Malin is more often referred to as Patrick Malin in the record.
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performance reviews and would not challenge their tardiness as she would white
subordinates.
On January 21, 1999, Bowen and Watts engaged in a heated argument in Watt's
office. The argument concerned whether Bowen had to verify client addresses before
mailing letters from the DSS. Bowen claimed African-American caseworkers
received preferential treatment and were not required to verify client addresses.
When Bowen left the office, Watts entered another African-American supervisor's
office, and Lee joined them. Returning to her workplace, Bowen overheard Watts
complain, "I can't take this any more. I'm going home." Bowen then heard Lee
respond, "No, and you shouldn’t have to, and someone should do something about
that menopausal white bitch." Bowen looked directly at Lee, who gave Bowen a
harsh look and declared, "Yes, I am talking about you." Lee continued, "But right
now I'm going to take you outside and we will settle this once and for all." Lee began
to run directly towards Bowen.
To avoid physical contact with Lee, Bowen retreated inside her work cubicle.
Lee ran past Bowen's cubicle, turned around, and walked past Bowen's cubicle, but
did not enter. Trembling, Bowen tried phoning security, but she could not find the
number. A co-worker told Bowen, "Whatever you do, don't come out of that cube."
Bowen notified Dintlemann, Lee's boss, and Malin, the union steward.
Dintlemann downplayed the incident. When Bowen told Dintlemann she intended
to contact the police, Dintlemann responded that she did not believe the incident
warranted police involvement. When Malin arrived, Bowen's voice was trembling and
her face was red. Malin assisted Bowen in writing a grievance, which alleged Lee
had harassed and threatened her for two and half years, and local management had
refused to take effective measures to stop the harassment. Bowen requested the DSS
provide her "a safe work environment . . . where Ms. Lee is not permitted to threaten,
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harass & humiliate me." Malin then instructed Bowen to contact the police, and he
escorted her to the parking lot.
Later that day Bowen returned to the DSS midtown office with two police
officers. Bowen, Malin, and the police officers met with four of the DSS managers
to discuss the incident. Bowen told Shirley Bell (Bell), the DSS personnel manager,
she was "afraid to come in here and work." Bowen told Bell that her co-workers had
overheard Lee threatening to shoot fellow employees. Bowen then asked Bell, "What
guarantee do I have that [Lee] won't come up and shoot me in the back as she has
threatened to?" Bell responded the DSS could not guarantee Bowen's safety.
The DSS recommended Bowen accept a transfer to the DSS Prince Hall office
located in North St. Louis. A police officer present at the meeting told Bowen she
would be worse off working in North St. Louis. Bowen told the DSS managers she
wanted to remain working in the midtown office. Unable to reach an agreement, the
DSS placed Bowen on paid administrative leave. The DSS allowed Lee to continue
working as a supervisor in the midtown office.
Shortly thereafter, Bowen obtained a protective order against Lee in the Circuit
Court of St. Louis City.
The DSS declined to accept Bowen's grievances relating to the January 21,1999
incident and the earlier cake incident before completing an internal investigation.
Over Bowen's objections, the DSS gave her a temporary work assignment at its Prince
Hall office, but never told Bowen the duration of the assignment. Bowen worked at
Prince Hall for one week during February 1999. Thereafter, Bowen took sick leave
for stress and high blood pressure.
On April 29, 1999, the Director of the Family Services Division notified
Bowen in writing that the division had completed its investigation of her unlawful
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treatment claims against Lee. The director informed Bowen the DSS had determined
her claims against Lee were unsubstantiated, and advised Bowen the DSS would take
no further action on her claims.
On May 3, 1999, Bowen resigned her position. In her letter of resignation,
Bowen declared the work environment was "completely intolerable" and further
declared that she could not and would not "risk [her] safety by returning to [her]
former position."
In July 1999, the DSS gave Lee a five-day suspension for what the department
deemed was "inappropriate behavior" towards Bowen. Immediately following the
suspension, Lee retired.
Bowen sued both the DSS and the SWU. Bowen alleged racially hostile work
environment, retaliation, and constructive discharge claims against the DSS, and a
claim of race discrimination against the SWU. The DSS and the SWU both moved
for summary judgment, which were granted. Bowen appeals only the court's grant of
summary judgment on her racially hostile work environment claim against the DSS.
The magistrate judge found Bowen had failed to establish Lee's harassment
affected "a term, condition, or privilege of employment" or that Lee's harassment of
Bowen "was based on race." The magistrate judge determined the facts established
"Lee had an extreme, intense dislike for" Bowen, but "[w]ithout some specific
evidence that Lee's conduct directed toward [Bowen] was because [Bowen] was
white," Lee's conduct toward Bowen did not rise to the level of a racially hostile work
environment.
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II. DISCUSSION
A. Hostile Work Environment
Title VII of the Civil Rights Act of 1964 prohibits an employer from
discriminating "against any individual with respect to [her] compensation, terms,
conditions, or privileges of employment, because of such individual's race . . . ." 42
U.S.C. § 2000e-2(a)(1). The Supreme Court has recognized Title VII is violated
when discriminatory harassment is "sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an abusive working environment."
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Savings Bank,
FSB v. Vinson, 477 U.S. 57, 67 (1986)).
To establish a racially hostile work environment claim, Bowen must
demonstrate unwelcome harassment based on race which is sufficiently severe or
pervasive as to affect a term, condition, or privilege of employment. Woodland, 302
F.3d at 843. Assuming Bowen's claim is principally one based on co-worker
harassment, she must also show that the DSS knew or should have known of Lee's
racially discriminatory harassment and failed to take adequate remedial measures to
end the harassment. Id. The DSS does not dispute Bowen was subjected to Lee's
unwelcome harassment.
To prevail, Bowen "must show both that the offending conduct created an
objectively hostile work environment and that she subjectively perceived her working
conditions as abusive." Williams v. City of Kansas City, 223 F.3d 749, 753 (8th Cir.
2000) (citation omitted). See Harris, 510 U.S. at 21-22. Harassment which is severe
or pervasive is deemed to alter a term, condition, or privilege of employment.
Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998). In Faragher, the Supreme
Court emphasized "that conduct must be extreme to amount to a change in the terms
and conditions of employment." Id. at 788. Guided by Harris, we have ruled
workplace conduct does not violate Title VII unless it is "severe or pervasive enough
to create an objectively hostile or abusive work environment – an environment that
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a reasonable person would find hostile or abusive." Gipson v. KAS Snacktime Co.,
171 F.3d 574, 579 (8th Cir. 1999) (quoting Harris, 510 U.S. at 21).
We must "ensure that Title VII does not become a 'general civility code.'"
Faragher, 524 U.S. at 788 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 80 (1998)). Not all unpleasant and uncivil conduct creates a hostile work
environment. See Woodland, 302 F.3d at 843; Ross v. Kansas City Power & Light
Co., 293 F.3d 1041, 1051 (8th Cir. 2002); Willis v. Henderson, 262 F.3d 801, 808-10
(8th Cir. 2001). "[I]solated incidents (unless extremely serious) will not amount to
discriminatory changes in the 'terms and conditions of employment.'" Faragher, 524
U.S. at 788 (quoting Oncale, 523 U.S. at 82).
1. Harassment Based on Race
The DSS argues, and the magistrate judge found, the evidence established
nothing more than Lee had an extreme, intense dislike for Bowen unrelated to her
race. We do not agree. Viewing, as we must, the evidence in the light most favorable
to Bowen, we conclude she produced sufficient evidence from which reasonable
jurors could infer that Lee's conduct toward Bowen was based on race. Lee's two
"white bitch" epithets were explicitly racial and were directed specifically to Bowen,
a white woman. Because the epithets carried clear racial overtones, they permit an
inference that racial animus motivated not only her overtly discriminatory conduct but
all of her offensive conduct towards Bowen. See O'Shea v. Yellow Tech. Servs., Inc.,
185 F.3d 1093, 1097 (10th Cir. 1999) (hostile work environment based on sex)
(agreeing with Carter v. Chrysler Corp., 173 F.3d 693, 701 (8th Cir. 1999)).
2. Severe or Pervasive Harassment
Because the alleged incidents of misconduct spanned more than eighteen
months, the DSS argues Bowen has not established Lee's conduct permeated the work
place with sufficient severity or pervasiveness to create an abusive working
environment. The magistrate judge agreed.
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Bowen argues she need not establish that Lee's acts were both severe and
pervasive, but need only establish severity. We agree with Bowen. A claimant need
only establish discriminatory conduct which is either pervasive or severe. Harris, 510
U.S. at 22. Thus, we must determine if Bowen has produced enough evidence for a
reasonable jury to decide whether Lee's conduct was sufficiently severe to alter the
conditions of Bowen's employment and create an abusive work environment.
"Workplace conduct is not measured in isolation; instead, 'whether an
environment is sufficiently hostile or abusive' must be judged 'by looking at all the
circumstances.'" Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001)
(quoting Faragher, 524 U.S. at 787, quoting Harris, 510 U.S. at 23). In analyzing
Bowen's hostile environment claim, the magistrate judge did not address all of the
factors outlined in Harris, which factors determine whether a work environment is
"hostile" or "abusive." Harris, 510 U.S. at 23. The frequency of the discriminatory
conduct, discussed by the magistrate, is only one of several factors to be considered.
Other factors include the severity of the discriminatory conduct; whether the
offensive conduct was physically threatening or humiliating, as opposed to a mere
offensive utterance; and whether the offensive conduct unreasonably interfered with
the employee's work performance. Id. Finally, a court should consider the effect of
the misconduct on the victim's psychological well-being in determining whether the
victim subjectively perceived the environment to be hostile or abusive. Id. "[N]o
single factor is required." Id. Finally, the "[h]arassment need not be so extreme that
it produces tangible effects on job performance or psychological well-being to be
actionable." Carter, 173 F.3d at 702 (citing Harris, 510 U.S. at 22).
Our independent review of the evidentiary record leads us to conclude Bowen
produced sufficient evidence to demonstrate the cumulative effect of Lee's
discriminatory conduct towards her was sufficiently severe to defeat summary
judgment. While Lee's discriminatory conduct towards Bowen was not frequent,
neither was it infrequent. Reasonable jurors could find that Lee's hostility towards
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Bowen pervaded the work environment, commencing in July 1997 with Lee's "white
bitch" epithet and menacing remarks, continuing with Lee's frequent hostile stares,
intensifying in January 1999 with Lee's violent act of destroying Bowen's cake,
escalating on January 21, 1999, when Lee called Bowen a "menopausal white bitch"
and threatened her with a physical beating, and climaxing when Lee intimidated
Bowen by running directly at her. Bowen's co-workers had warned Bowen that Lee
did not like white people and that Lee had threatened to shoot fellow employees.
Lee's serious misconduct and Bowen's subjective fear of bodily harm adequately
demonstrate, for summary judgment purposes, that Lee's conduct was both
objectively and subjectively hostile or abusive.
We conclude Bowen produced sufficient evidence for a jury to consider
whether, under all of the facts, Lee's progressively hostile conduct was sufficiently
severe to alter a condition of Bowen's employment and create a hostile work
environment.
3. Remedial Action
Assuming Bowen's claim alleges co-worker, as opposed to supervisor,
harassment, Bowen must also show the DSS "knew or should have known of the
racially discriminatory harassment and failed to take prompt and effective remedial
measures to end the harassment." Willis, 262 F.3d at 808. The magistrate judge
acknowledged, but did not discuss, this fifth prima facie element regarding the
employer's knowledge. The record establishes Bowen filed three grievances
complaining specifically of Lee's conduct and another grievance complaining that
Lee's supervisor, out of fear, acquiesced in Lee's harassment. Within hours of Lee's
insulting and intimidating conduct on January 21, 1999, Bowen reported to the DSS
personnel manager her fear of working near Lee. The DSS manager told Bowen the
department could not guarantee her personal safety. We conclude genuine issues of
fact exist whether the DSS knew of the racially discriminatory harassment and took
adequate remedial measures to end the harassment.
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III. CONCLUSION
We therefore reverse the entry of summary judgment in favor of DSS on
Bowen's claim of a racially hostile work environment and remand for a trial on the
merits.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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