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Mooneyhan v. Telecommunications Management, LLC

United States District Court, E.D. Missouri, Southeastern Division

November 15, 2017




         This 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.

         I. Background

         On June 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.[1] 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.[2]

         On July 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.

         Mooneyhan 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.

         II. Summary Judgment Standard

         Pursuant 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.

         In 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).

         III. Facts [3]

         NewWave 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.

         Anti-Harassment Policy

         At the 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.

         Attendance Policy

         In 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.

         Mooneyhan's Communications with NewWave Employees Regarding Attendance

         On May 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.[4] This mandated the assessment of a verbal warning pursuant to the attendance policy.

         On June 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.

         Shortly 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 emoticon.[5]

         On July 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 emoticon.

         Mooneyhan's Resignation/Termination and Allegations of Harassment

         On July 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.

         On July 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.

         In the 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 sexual harassment.

         Mooneyhan 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.”

         Gowan 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.

         Mooneyhan's Complaint

         In the 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 physically attractive.
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 ...

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