Smith v. Hy-Vee, Inc.

622 F.3d 904, 2010 U.S. App. LEXIS 21002, 93 Empl. Prac. Dec. (CCH) 44,008, 110 Fair Empl. Prac. Cas. (BNA) 840, 2010 WL 3958740
CourtCourt of Appeals for the Eighth Circuit
DecidedOctober 12, 2010
Docket09-2631
StatusPublished
Cited by12 cases

This text of 622 F.3d 904 (Smith v. Hy-Vee, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Hy-Vee, Inc., 622 F.3d 904, 2010 U.S. App. LEXIS 21002, 93 Empl. Prac. Dec. (CCH) 44,008, 110 Fair Empl. Prac. Cas. (BNA) 840, 2010 WL 3958740 (8th Cir. 2010).

Opinions

PER CURIAM.

Dru D. Smith brought suit against her former employer, Hy-Vee, Inc., alleging sexual harassment and retaliation in violation of the Missouri Human Rights Act (MHRA), Mo.Rev.Stat. §§ 213.055, 213.070. The district court1 granted summary judgment in favor of Hy-Vee on Smith’s sexual harassment claim. At trial on the retaliation claim, the district court excluded evidence of specific instances and details of the alleged harassment. The jury returned a verdict in favor of Hy-Vee. Smith appeals, arguing the district court erred in granting Hy-Vee’s motion for summary judgment on Smith’s sexual harassment claim, excluding evidence of sexual harassment, and refusing to grant Smith a new trial. We affirm the judgment.

I

The record reveals the following facts, taken in the light most favorable to Smith. Smith was employed by Hy-Vee at its Englewood Road store in Kansas City, Missouri, from June 2004 to August 2006. She worked in various departments until late 2005 when she was transferred to the bakery. While employed in the bakery, Smith frequently worked with Sherri Lynch, a cake decorator. During this time, Lynch engaged in rude, vulgar, sexually charged behavior toward Smith. In February or March of 2006, Lynch told Smith to place two fingers next to hers. Lynch then rubbed her fingers against Smith’s fingers and told Smith “[t]hat’s what a penis feels like.” From April 2006 to August 2006, Lynch molded genitalia out of dough, shoved them in Smith’s face, and asked Smith if she knew what they were. In May 2006, Smith observed Lynch “dry humping” a male Hy-Vee manager. After the manager left, Smith said, “God, Sherri, it’s like you practically raped him.” Lynch replied “[n]o Dani, if I were going to rape someone, it would be like this.” Lynch then pushed Smith up against a wall for ten to fifteen seconds while rubbing her hands and body up against Smith. In early August 2006, Lynch sculpted a penis out of dough and asked Smith if it was “too big?” Additionally, while Smith was employed in the bakery, Lynch smacked her on the buttocks approximately six times and, with the aid of another employee, put Barbie dolls in sexual positions and asked Smith if she knew what the positions meant.

[906]*906Lynch also engaged in sexually charged conduct toward other women who worked at Hy-Vee. Smith observed Lynch kissing another female employee and smacking her on the buttocks. Lynch also “dry humped” another female employee. Based on these events, Smith believes Lynch is a lesbian or a bisexual. Another former Hy-Vee employee also believes Lynch may be bisexual. Lynch, who has been married to the same man for sixteen years and has two daughters, denies these claims.

In addition to the alleged conduct directed toward Smith and other female employees at Hy-Vee, Lynch also engaged in sexually charged activity toward male store employees. Examples of this conduct include: (1) Lynch made inappropriate sexual jokes with a store manager; (2) Lynch “dry humped” the same manager about once a week; (3) Lynch put her hands in this manager’s pockets and said “hey there big boy”; (4) Lynch hit several male employees on the posterior on several occasions; (5) Lynch made sexual comments towards male employees; and (6) Lynch made sexually explicit cakes for male Hy-Vee employees. Lynch was not the only employee engaging in sexually charged behavior. Several employees engaged in sexual jokes and made penises or other body parts out of dough and cake.

Smith states she reported incidents of sexual harassment to at least twelve different managers and co-workers. She raised a total of 66 to 101 complaints to management when she felt inappropriate conduct occurred. Management failed to take action on these alleged complaints. Hy-Vee denies Smith ever complained. In June or July of 2006, Smith attended a meeting where she requested a transfer out of the bakery department; Hy-Vee denied this request. During the last two weeks before the termination of her employment, Smith complained to a number of people about sexual harassment and indicated she was going to call the Equal Opportunity Employment Commission (EEOC) or hire a lawyer.

Over the course of Smith’s employment at Hy-Vee, store management and other supervisors documented a number of incidents where Smith did not act appropriately or questioned the authority of superiors. In the weeks leading up to her termination, Smith’s immediate supervisor wrote her up for a series of mistakes involving cake and bagel orders made during the last two or three weeks of employment. Although Hy-Vee’s store write-up policy gives employees an opportunity to sign a disciplinary write-up and submit a response, Smith was not given the opportunity to follow this procedure for the write-ups she received immediately before her termination.

Smith’s employment was terminated on August 12, 2006. On approximately August 17, 2006, Smith filed a Charge of Discrimination against Hy-Vee with the EEOC and the Missouri Commission on Human Rights (MCHR). Both the EEOC and MCHR issued notices of Smith’s right to sue. Smith filed claims for sexual harassment, in violation of Mo.Rev.Stat. § 213.055, and retaliation, in violation of Mo.Rev.Stat. § 213.070, against Hy-Vee in the Circuit Court of Jackson County, Missouri. On August 3, 2007, Hy-Vee removed the case to federal court. On March 27, 2009, the district court granted summary judgment in favor of Hy-Vee on the sexual harassment claim. Before the retaliation claim proceeded to trial, the trial court granted Hy-Vee’s in limine motion to exclude evidence that detailed the sexual harassment from which Smith asserted she suffered.

II

Smith first challenges the district court’s order granting summary judgment in fa[907]*907vor of Hy-Vee on Smith’s sexual harassment claim. We review the district court’s grant of summary judgment de novo, viewing the record in the light most favorable to the non-moving party. Pedroza v. Cintas Corp. No. 2, 397 F.3d 1063, 1068 (8th Cir.2005). Summary judgment is appropriate only where there exists no genuine issue of material fact such that no reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The MHRA prohibits employers from discriminating against any individual “with respect to his compensation, terms, conditions, or privileges of employment, because of such individuals ... sex ...” Mo.Rev.Stat. § 213.055.1(1)(a). When a claim is reviewed under the MHRA, “appellate courts are guided by both Missouri law and federal employment discrimination caselaw that is consistent with Missouri law.” Daugherty v. City of Maryland Heights, 231 S.W.3d 814, 818 (Mo.2007). However, “[i]f the wording of the MHRA is clear and unambiguous, then federal caselaw which is contrary to the plain meaning of the MHRA is not binding.” Id. at 819. We apply Missouri law in this case.

“Sexual harassment creates a hostile work environment when sexual conduct either creates an intimidating, hostile, or offensive work environment or has the purpose or effect of unreasonably interfering with an individual’s work performance.” Barekman v. City of Republic, 232 S.W.3d 675, 679 (Mo.Ct.App.2007). An employer is liable for the sexual harassment by a co-worker if the employer knew or should have known the harassment occurred and “failed to take prompt and effective remedial action.” Mason v.

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Bluebook (online)
622 F.3d 904, 2010 U.S. App. LEXIS 21002, 93 Empl. Prac. Dec. (CCH) 44,008, 110 Fair Empl. Prac. Cas. (BNA) 840, 2010 WL 3958740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-hy-vee-inc-ca8-2010.