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Barber v. Drury Development Corp.

United States District Court, Eastern District of Missouri, Eastern Division

March 5, 2015




This matter is before the Court on Defendant Drury Development Corporation's Motion for Summary Judgment (ECF No. 31). Plaintiff Reginald Barber filed two letters but not a responsive pleading and the time for doing so has expired. All matters are pending before the undersigned United States Magistrate Judge, with consent of the parties, pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the Motion for Summary Judgment will be granted.

On February 20, 2014, Plaintiff originally filed this action pro se under 42 U.S.C. § 2000e, et seq. alleging claims of sexual harassment and age discrimination. (Pltf.'s Compl., ECF No. 1).[1] In particular, Plaintiff claims he was subjected to sexual harassment when Defendant's employee "slapped [his] buttocks."

On January 5, 2015, Defendant Drury Development Corporation filed a Motion for Summary Judgment, asserting that Plaintiff Reginald Barber has failed to establish three of the five elements of his prima facie case of hostile work environment sexual harassment by a non- supervisory co-worker. Moreover, Defendant contends there is no evidence he was harassed because of his sex inasmuch as the alleged harassment was not motivated by sexual desire or hostility. Third, Defendant argues the alleged harassment was not sufficiently severe or pervasive to affect a term, condition, or privilege of employment. Finally, Defendant asserts that Defendant immediately took action to investigate and correct the alleged harassment.

The Undisputed Evidence before the Court on the Motion

Accordingly, the record establishes the following:

1. Background

Plaintiff Reginald Barber is a male citizen of the State of Missouri residing in St. Louis. (Pltf.'s Compl., ECF No. 1; Exh. A, Pltf.'s Depo. at 6).

In February 2013, Defendant started a complete renovation and remodel of the Drury Inn & Suites Convention Center ("Convention Center") located at 711 North Broadway, St. Louis, Missouri, 63102. (Exh. B, Gronefeld Aff. at ¶ 5). Brad Gronefeld ("Gronefeld"), a Construction Superintendent with Drury Development Corporation since April 2006, was responsible for overseeing the day-to-day operation of new construction sites including the management of construction crews and sub-contractors by locating, evaluation, and selecting sub-contractors and monitoring their performance. (Id. at ¶¶ 3-4, 7). Initially, another Superintendent, Mark Zemann, oversaw the renovation at the Convention Center and coordinated with Express Employment Professionals ("Express") to obtain temporary construction workers for the project. (Id. at ¶ 6). In March 2013, Gronefeld took over as Construction Supervisor at the Convention Center so he was in charge of all of the renovations at the site, and he was Plaintiff's supervisor. (Id., at ¶¶ 7, 18; Pltf.'s Aff. at 18). In particular, Gronefeld managed the subcontractors by locating and selecting subcontractors, monitoring their performance, and changing employment status of a temporary employee including hiring, firing, promoting, assigning work, or scheduling hours. (Gronefeld Aff. at ¶ 4). Gronefeld had the authority to initiate or end an Express temporary employee's assignment with Defendant. (Id.). Ron Ball ("Ball") has been employed full-time as a skilled tradesman with Defendant and assists Gronefeld in overseeing temporary labor and coordination of operations. (Id. at ¶ 9). Holman Hernandez ("H. Hernandez") has been employed full-time as a material handler, a laborer, with Defendant. (Id. at ¶ 10). Neither Ball nor H. Hernandez had any supervisory authority to make any change in any employee or temporary employee's employment status including hiring, firing, assigning work, or scheduling hours. (Id. at ¶ 11).

The majority of the workforce at the Convention Center renovation site was primarily male. (Id. at ¶ 5). Pol Hernandez ("P. Hernandez"), the male employee who allegedly harassed Plaintiff, has been employed full-time as a laborer with Defendant, and he assists H. Hernandez with stocking inventory. (Id. at ¶ 11). P. Hernandez stands at five feet and six inches and is sixty years old. (Id.).

At the relevant time, Ken Jones, Romaro Smith, Joshua Colvin ("Colvin"), Robbin Clay, and Craig Hicks, all Express temporary employees, were assigned to work at the Convention Center as laborers. (Id. at ¶ 12). Justin Rooks ("Rooks"), Harold Johnson, and Anthony Faraji were also Express temporary employees assigned to work at the Convention Center as carpenters. (Id. at ¶ 13).

On March 11, 2013, Defendant engaged the temporary services of Plaintiff through Express and assigned him to the Convention Center as a general laborer with duties including Case: 4:14-cv-00319-TIA Doc. #: 38 Filed: 03/05/15 Page: 4 of 17 PageID #: 278 carrying large and heavy equipment and materials, operating a jackhammer, and performing demolition duties. (Id. at ¶ 14, 19; Pltf.'s Depo. at 8, 16, 45).

2. Plaintiff's Allegation of Sexual Harassment

In the afternoon on April 1, 2013, Plaintiff reported the buttocks slapping incident to Gronefeld, his supervisor. (Gronefeld Aff. at ¶ 33; Pltf.'s Depo. at 46, 50). Plaintiff never made any other allegation against P. Hernandez during his three-week assignment to the Convention Center. (Gronefeld Aff. at ¶¶ 14-15, 27). Other than the complaint made by Plaintiff on April 1, 2013, Defendant is not aware of any other alleged harassment. (Id. at ΒΆ 16). Gronefeld was not aware of any ...

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