United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
CRITES-LEONI UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant's Motion for
Summary Judgment. (Doc. 26.) Plaintiff has filed a Response
(Doc. 29) and Defendant has filed a Reply (Doc. 33). For the
following reasons, the motion is granted.
2, 2016, Defendant removed this matter from the Circuit Court
of Scott County, Missouri, to this Court based on federal
question jurisdiction pursuant to 28 U.S.C. §§ 1331
and 1441(a). In Count I of her Complaint, Plaintiff Kimberly
Mooneyhan alleges a hostile work environment claim based on
gender in violation of 42 U.S.C. § 2000(e) et
seq., Title VII of the Civil Rights Act of 1964. Count
II of the Complaint asserts a common law hostile work
environment claim based on Mooneyhan's
gender. Mooneyhan's claims arise from her
employment at Defendant Telecommunications Management, LLC,
d/b/a NewWave Communications (“NewWave”) from
April 15 to July 6, 2014.
10, 2017, NewWave filed the instant Motion for Summary
Judgment claiming entitlement to judgment as a matter of law
on Mooneyhan's claims for the following reasons: (1)
Mooneyhan is unable to demonstrate that she suffered a
tangible employment action or constructive discharge; (2)
Mooneyhan is unable to make a prima facie case of hostile
work environment under Title VII because she cannot show the
alleged harassment was “severe or pervasive” and
did not give management the opportunity to prevent or correct
any alleged harassment; and (3) because the alleged harassers
are not Mooneyhan's “supervisors” and she
suffered no tangible employment action, the
Faragher-Ellerth affirmative defense applies.
opposes NewWave's Motion for Summary Judgment, and argues
that genuine issues of material fact exist that should be
resolved by a jury. Mooneyhan cites the following examples of
disputes of material fact: whether she was constructively
discharged or if she was terminated pursuant to an attendance
policy, whether the harassment she suffered was sufficiently
severe or pervasive, and whether NewWave knew or should have
known of the harassment at issue in this case.
Summary Judgment Standard
to Federal Rule of Civil Procedure 56(a), a district court
may grant a motion for summary judgment if all of the
information before the court demonstrates that “there
is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The burden is on the moving party. City of Mt. Pleasant,
Iowa v. Associated Elec. Co-op. Inc., 838 F.2d 268, 273
(8th Cir. 1988). After the moving party discharges this
burden, the nonmoving party must do more than show there is
doubt as to the facts. Matsushita Elec. Industrial Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead,
the nonmoving party must set forth specific facts showing
there is sufficient evidence in her favor to allow a jury to
return a verdict for her. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986); Celotex, 477
U.S. at 324.
ruling on a motion for summary judgment, the court must
review the facts in a light most favorable to the party
opposing the motion and give that party the benefit of any
inferences that logically can be drawn from those facts.
Matsushita, 475 U.S. at 587; Woods v.
DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir.
2005). The Court may not “weigh the evidence in the
summary judgment record, decide credibility questions, or
determine the truth of any factual issue.”
Kampouris v. St. Louis Symphony Soc., 210 F.3d 845,
847 (8th Cir. 2000). Finally, the court must resolve all
conflicts of evidence in favor of the nonmoving party.
Robert Johnson Grain Co. v. Chemical Interchange
Co., 541 F.2d 207, 210 (8th Cir. 1976).
is a broadband and cable company that provides residential
and business cable, internet, and telephone services to
customers in seven states across the Midwest and South. The
events at issue took place in NewWave's Contact Center in
Sikeston, Missouri. Mooneyhan worked at the Sikeston Contact
Center as a Sales and Service Associate (“SSA”)
in the Billing Department beginning on April 15, 2014.
Mooneyhan's position was part-time, and she worked
approximately 25 hours per week.
outset of her employment, Mooneyhan acknowledged receipt of
the Employee Handbook, which contains NewWave's
anti-harassment policy. Mooneyhan understood that the policy
prohibited harassment and discrimination of all forms. The
policy requires an associate who feels he or she is a victim
of sexual harassment to “bring the matter to the
immediate attention of the supervisor in charge of the
location/department at which he or she is employed within
seven (7) calendar days.” (Doc. 28-1 at 6.) It further
provides that an associate “who is uncomfortable for
any reason in bringing such a matter to the attention of this
individual, or who is not satisfied that bringing the matter
to the attention of such person will resolve the matter,
should report the matter to the Human Resources Manager by
phone or letter.” Id. Mark Whitehead, Director
of Operations; and Treka Hargrove, General Manager for Call
Center Services; were supervisors in charge of the
department/location at the Contact Center in Sikeston. Staci
Gowan was the Human Resources (HR) Director for the Sikeston
Contact Center in 2014.
2014, NewWave maintained a written no-fault attendance
policy. The policy operates on a point system and is enforced
through progressive discipline. When an employee accrues five
points, a verbal warning is issued; six points begets a
written warning; and seven points incurs a final warning.
Upon the accumulation of eight points in a rolling calendar
year, employment is terminated. The policy states that
whether or how to assess progressive discipline is not
discretionary. The most serious infraction, a
“no-call/no show, ” incurs two points under the
policy. Two consecutive “no-call/no-shows” are
deemed job abandonment and a voluntary resignation by the
employee. Attendance points are logged by the Contact Center
Administrative Assistant. The attendance policy was included
in NewWave's Employee Handbook in effect during
Mooneyhan's employment, receipt of which Mooneyhan
acknowledged. Mooneyhan admits that she understood the
attendance policy and disciplinary process.
Communications with NewWave Employees Regarding
22, 2014, Mooneyhan spoke with Sales and Service Lead Brandon
Lawrence about her then-accumulated attendance points.
According to NewWave's records, she had accumulated 1.5
points for an absence, about which Lawrence notified her.
After the discussions with Lawrence, Mooneyhan emailed
Director of Operations Mark Whitehead with a question that
Lawrence could not answer. Mooneyhan concluded the email to
Whitehead with a smiley-face emoticon. As of June 27, 2014,
based on tracking of her absences, Mooneyhan had accrued 5.25
attendance points. This mandated the assessment of a verbal
warning pursuant to the attendance policy.
29, 2014, Leads Brandon Lawrence and Zeth Edsall met with
Mooneyhan to deliver a verbal warning and implement a
Performance Improvement Plan (“PIP”). Lawrence
and Edsall conducted the meeting because it is standard
practice for two employees to be present during disciplinary
assessments, and they were the two Leads available at the
time. It is also standard practice for such meetings to occur
in an office, rather than the call center floor, for the
employee's privacy and benefit. In substance, the PIP was
a restatement of NewWave attendance policy.
after the verbal warning was delivered to Mooneyhan, at 5:46
p.m., she sent an email to Mark Whitehead and Treka Hargrove
titled “2 weeks[sic] notice” in which she
expressed frustrations with the attendance policy and
purported to resign her employment. The email stated, in
part, “[A]nyways the point is I do like work but only
if everyone is in agreement with punishment…”
and “So I just figured I should give you my 2 weeks, I
was told if I miss work any more I will get fired anyways so
I would rather end it on good terms…” Four
minutes later, Mooneyhan sent another email to Whitehead and
Hargrove that read, “Oh sorry one more thing, I really
do like working here, I just want this point thing explained
because to me it doesn't make since [sic].” Less
than thirty minutes later, she sent a third email, which
stated, “I don't want to quit I just want to
understand this.” Fourteen minutes after that, she sent
a fourth email retracting her resignation, apologizing for
her misunderstanding and for being upset, and assuring her
supervisor and manager she would “do [her] best to make
sure I don't miss any work.” She concluded that
email with “thanks” and a smiley-face
3, 2014 at 5:19 p.m., Mooneyhan sent an email to Hargrove and
Cathy Johnson (a Sales and Service Lead) regarding a change
in her schedule the weekend of the July 4th holiday. Instead
of working July 4, she was to work a double, split-shift on
Sunday, July 6. She thanked them for the switch, wished them
a “happy 4th” and included a smiley-face
Resignation/Termination and Allegations of
6, 2014, Mooneyhan left work during her first scheduled shift
and did not return to work at NewWave thereafter. Mooneyhan
alleges that she resigned her employment with NewWave on July
6, 2014, because Edsall harassed her “that day
again.” NewWave contends that she was terminated
pursuant to the attendance policy on July 8, after incurring
two points under the policy for “no-call,
no-show” absences on July 7 and July 8.
8, 2014, Mooneyhan spoke with Staci Gowan, HR Director, by
phone. This was the first time that Mooneyhan had spoken with
Gowan on any subject. Mooneyhan was driving to her
attorney's office when she placed the call. Mooneyhan
complained about the behavior of several NewWave employees,
and included allegations of sexual harassment. At the end of
the call, Mooneyhan informed Gowan that she could no longer
speak to anyone “without [her] attorney present”
and hung up the phone. Mooneyhan declined to provide a
written statement of her complaints of harassment as
requested by Gowan or otherwise cooperate in an investigation
of her allegations.
July 8, 2014 call with Gowan, Mooneyhan complained of the
following behavior by her co-workers:
• Leah used her cell phone while at her desk
• Marilyn Deline often used the “f word”
. Brandon Lawrence kept his computer up for
other employees to use
• Larry Reed allowed his pants to sag
• Lamar Griffin rubbed other women's shoulders (but
she did not report he did this to her)
• On June 29 and July 6, Edsall directed sexual comments
both to herself and to co-worker Marilyn Deline. Edsall made
a total of three verbal comments to her that she claimed were
filed a Charge of Discrimination (“Charge”) on
February 11, 2015, which is the first written account of her
allegations received by NewWave. In her Charge, Mooneyhan
alleged that she was subjected to sexual harassment by
multiple male employees, but she did not refer to any of the
alleged harassers by name. Mooneyhan for the first time
alleged that the harassment extended back to May 2, 2014,
shortly after she began working for NewWave. She also claimed
for the first time that she was touched inappropriately. The
Charge references a disciplinary meeting in which she was
allegedly subjected to sexual comments, and she
“quickly left the room.”
conducted a full investigation of Mooneyhan's
allegations. She interviewed Edsall, who denied making sexual
comments in the workplace. Gowan also interviewed Deline,
whom Mooneyhan alleged was a witness/co-victim of the sexual
harassment by Edsall on Sunday, June 29 and Sunday, July 6.
Deline denied ever hearing any sexual comments by Edsall, and
noted that she did not even work on Sundays. Gowan instructed
all interviewed employees on proper reporting, management,
and violations of NewWave's anti-harassment policy.
Because Mooneyhan's allegations of sexual harassment
remained unsubstantiated, no one at NewWave was disciplined.
instant Complaint, Mooneyhan alleges that Edsall sexually
harassed and/or assaulted her on numerous occasions,
including the following:
a. On or about May 2, 2014, Edsall began discussing
Mooneyhan's makeup and told Mooneyhan he found her
b. A few days later, Edsall again conversed with Mooneyhan
regarding her physical appearance, discussed the size of her
breasts and how he was physically attracted to her.
c. On another occasion, Mooneyhan sought help with a
telephone call from Edsall who was the only supervisor
available. Edsall again discussed matters of a sexual nature,
showed Mooneyhan his split tongue and told her he had it
surgically split to perform oral sex, and asked Mooneyhan if
he could rub her legs.
d. On another occasion, Edsall made sexual comments to
Mooneyhan, telling her he could fix her stress by having sex
with her and asking Mooneyhan to have sex with him.
e. On another occasion, Mooneyhan was walking with another
female employee, Marilyn Deline, when Edsall approached and
told them his fantasy was to have Mooneyhan and Deline both
on top of him having sex.
f. On another occasion, Edsall and Brandon Lawrence, another
male supervisor, escorted Mooneyhan to an office regarding a
verbal warning. Upon entering the office, Lawrence sat on the
desk in front of Mooneyhan and Edsall locked the door behind
her. Edsall said there needed to be two males in the room
because of rumors around the office that Mooneyhan was having
sex with them.
g. On or about July 3, 2014, Edsall tightly grabbed Mooneyhan
by the arm and rubbed it up and down and begged ...