Lisa Anne Varner v. Natl. Super Markets , 94 F.3d 1209 ( 1996 )

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No. 95-3611
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Lisa Anne Varner, Rony Varner, *
Peggy Varner, *
*
Plaintiffs/Appellees, *
*
v. *
*
National Super Markets, Inc., *
*
Defendant/Appellant. *
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Appeals from the United States
No. 95-3839 District Court for the
___________ Eastern District of Missouri.
Lisa Anne Varner, *
*
Plaintiff/Appellant, *
*
Rony Varner, Peggy Varner, *
*
Plaintiffs, *
*
v. *
*
National Super Markets, Inc., *
*
Defendant/Appellee. *
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Submitted: June 10, 1996
Filed: September 9, 1996
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Before WOLLMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and
DOTY,* District Judge.
___________
*The HONORABLE DAVID S. DOTY, United States District
Judge for the District of Minnesota, sitting by
designation.
WOLLMAN, Circuit Judge.
National Super Markets, Inc. (National) appeals the district court's1
judgment in favor of Lisa Anne Varner on her claim brought under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the
Missouri Human Rights Act (MHRA), Mo. Rev. Stat. §§ 213.010 et seq. Varner
cross-appeals various rulings by the district court. We affirm.
I.
Over the course of several weeks in the spring of 1991, Robert
Edmiston, a 51-year-old produce worker at National, approached Varner, a
17-year-old floral worker, and made graphic sexual comments and displayed
pornography to her. In July or August of 1991, Edmiston approached Varner
from behind, reached his arms under Varner's arms, and squeezed her
breasts. Varner broke free and ran from the room. She then finished her
shift and went home. Varner called Chris Pilch, who was her fiance and
also a National employee, and related what had happened. Pilch immediately
called Curtis Mason, the store manager, and told him that Edmiston had
grabbed Varner's breasts. According to Pilch's testimony, Mason told him
that he could not do anything unless Varner reported the incident to him,
and then he could possibly say something to Edmiston, but that would make
the situation worse. According to Pilch, Mason further advised him that
"he could just let it alone and maybe Bob would just leave her alone and
forget about it." Mason did not report the incident to anyone.
On November 22, 1991, Edmiston again approached Varner from behind,
put his arms through her arms, and grabbed her breasts. Edmiston then
grabbed Varner's thumbs and forced her hand behind
1
The Honorable Jean C. Hamilton, Chief Judge, United States
District Court for the Eastern District of Missouri.
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her back into his crotch area. Varner again broke free and ran from the
room -- on her way out telling co-worker Patrick McCorkle that Edmiston had
grabbed her. Varner finished her shift and went home, where she told her
mother what had happened and then called Pilch and told him what had
happened. Pilch called Mason that evening and told him that Edmiston had
again grabbed Varner's breasts. Pilch testified that Mason's response was
the same this time as it had been after the first complaint, except this
time Mason added an additional dismissive comment: "That's just Bob being
himself." Mason again took no further action. Mason testified that he
told Pilch to tell Varner to call Roger Beckman in the Human Resources
Department.
Varner reported the incident to the police the next morning. At the
police officers' request, Varner telephoned Edmiston. The police taped the
conversation, in which Edmiston admitted sexually assaulting Varner on two
occasions. The police went to National's store and arrested Edmiston.
Mason told the police that he was aware of the incidents but that there was
nothing he could do unless Varner told him about it herself. Mason then
contacted his district manager about the incident.
Although Varner continued to work, she suffered from nightmares, mood
swings, depression and crying episodes, and she became afraid to go to
work. She was diagnosed as suffering from post-traumatic stress syndrome
caused in part by the sexual comments and the first touching incident, but
mostly caused by the November 22, 1991 incident.
National's sexual harassment policy directs employees who believe
they have been subjected to sexual harassment to contact individuals in the
Human Resources Department or the Labor Relations Department. The policy
provides that a supervisor who has learned of an incident of sexual
harassment is to direct the employee to contact one of those individuals;
the supervisor is not
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to take any personal action. The policy was included in the employee
orientation handbook that Varner had agreed to familiarize herself with
during orientation.
Varner was a member of United Food & Commercial Workers' Union, Local
655, which has a collective bargaining agreement (CBA) with National.
Varner did not participate in the grievance and arbitration procedures in
place under the CBA.
Varner filed a complaint with the Missouri Commission on Human Rights
(MCHR) and the Equal Employment Opportunity Commission (EEOC) on May 18,
1992. She then filed her complaint in Missouri state court. National
removed the action to federal district court. A jury awarded Varner
$30,000 in actual damages. The district court denied National's motion for
judgment as a matter of law (JAML).
National argues on appeal that the district court erroneously denied
its motion for JAML because: (1) Varner's exclusive remedy is under the
Missouri workers' compensation law; (2) Varner failed to exhaust grievance
and arbitration remedies under the CBA; (3) Varner failed to invoke the
reporting procedures of National's sexual harassment policy; and (4) Varner
failed to timely file her administrative complaint, and thus her claims
concerning any pre-November 22, 1991 incidents were barred by the statute
of limitations. Varner cross-appeals, arguing that the district court
erred in formulating jury instructions, admitting and excluding certain
evidence, and in failing to submit her punitive damages claim to the jury.
We review a district court's denial of a motion for JAML de novo,
applying the same standard used by that court. Triton Corp. v. Hardrives,
Inc., 85 F.3d 343, 345 (8th Cir. 1996). We must view all facts and resolve
any conflicts in favor of Varner, giving her the benefit of all reasonable
inferences. Id. We will affirm the
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denial of the motion for JAML if a reasonable jury could differ as to the
conclusions that could be drawn, and we will not weigh, evaluate, or
consider the credibility of the evidence. Id.
II.
National first argues that the district court lacked subject matter
jurisdiction over Varner's complaint because Varner's exclusive remedy was
under state workers' compensation law, as the damages she claimed were the
same as those provided under the Workers' Compensation statute. Mo. Rev.
Stat. §§ 287.010 et seq. The exclusivity provision of the Missouri
workers' compensation statute provides that:
The rights and remedies herein granted to an employee shall
exclude all other rights and remedies of the employee . . . at
common law or otherwise, on account of such accidental injury
as death, except such rights and remedies as are not provided
for by this chapter. Mo. Rev. Stat. § 287.120.2.
We recently rejected a similar contention, holding instead that the
exclusivity provision cannot preempt an employee's federally-created right
to recover damages under Title VII. Karcher v. Emerson Electric Co., No.
95-3427, slip op. at 12 (8th Cir. Sept. 4, 1996). Moreover, as we did in
Karcher, we decline to read the provision to bar the recovery of damages
under the MHRA absent clear direction from the Missouri courts, and we have
found no such direction.
Although Missouri courts have held that the exclusivity provision
bars common law tort actions that arise out of incidents covered by the
workers' compensation act statute, see, e.g., Hill v. John Chezik Imports,
797 S.W.2d 528, 531 (Mo. Ct. App. 1990), they have not extended the
exclusivity provision to bar suits under the MHRA. Indeed, the language
of the MHRA appears to preclude any
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such finding. The statute states, in relevant part, that:
The provisions of this chapter shall be construed to accomplish
the purposes thereof and any law inconsistent with any
provision of this chapter shall not apply.
As we said in Karcher, we interpret broadly the remedial purpose of
the MHRA, and we thus hold that an award of damages under the statute is
not foreclosed by the possibility that such damages would have been
recoverable under the Workers' Compensation Act. Karcher, slip op. at 12.
III.
National next argues that the district court erred in failing to
grant its motion for JAML because Varner failed to exhaust grievance and
arbitration remedies under the CBA.
The Missouri Supreme Court has resolved this question with respect
to the MHRA, holding that exhaustion of other available administrative
remedies is not required before filing suit under the MHRA. Green v. City
of St. Louis, 870 S.W.2d 794, 796 (Mo. 1994) (en banc). Moreover, the
United States Supreme Court has held that the pursuit of a claim through
grievance and binding arbitration under a CBA does not preclude a civil
suit under Title VII, see Alexander v. Gardner-Denver Co., 415 U.S. 36, 49
(1974), and we believe the same reasoning applies to a plaintiff who has
chosen not to participate in the grievance procedure.
In Alexander, the Court stated that, "federal courts have been
assigned plenary powers to secure compliance with Title VII." 415 U.S. at
47. We interpret this absolute grant of power to entail an absolute right
to adjudicate suits under Title VII as long as the jurisdictional
prerequisites dictated in Title VII itself are satisfied. These
prerequisites do not include an exhaustion of
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grievance procedures under a CBA. See 42 U.S.C. § 2000e-5(b),(e) and (f).
See also Stacks v. Southwestern Bell Yellow Pages, Inc., 27 F.3d 1316, 1326
n.3 (8th Cir. 1994). Thus, National's argument that such an exhaustion is
required before bringing suit is without merit, and the district court
therefore did not err in denying National's motion for JAML.
IV.
National next argues that the district court erred in denying its
motion for JAML because Varner failed to invoke the reporting procedures
of National's sexual harassment policy. We reject this claim. The
relevant question is whether National knew or should have known of the
harassment and failed to implement prompt and appropriate corrective
action. Staton v. Maries County, 868 F.2d 996, 998 (8th Cir. 1989).
We conclude that Varner's reports of the incidents to Mason through
Pilch sufficiently put National on notice of the incidents. We look to
agency principles to determine whether an employer knew or should have
known of the harassment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,
72 (1986). Indeed, Title VII defines employer to include any "agent" of
the employer. 42 U.S.C. § 2000e(b). Accordingly, Pilch's notification to
Mason while Mason was acting in his supervisory capacity was sufficient to
constitute notice to National. We find no significance in the fact that
it was Varner's fiance who notified Mason, rather than Varner herself.
Moreover, we conclude that once National was notified, it failed to
take reasonable remedial action. Sufficient evidence supports a finding
that Mason's response to Pilch's complaint was inadequate. Moreover, even
if Mason was not the proper person to conduct an investigation of the
incidents and take the appropriate corrective action, he had undisputed
supervisory authority and could have informed the appropriate individuals
responsible for
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taking action.
Further, we conclude that National's sexual harassment policy is not
alone sufficient to shield it from liability. The Supreme Court in Meritor
held that while a plaintiff's failure to invoke a company's written
procedure is relevant, it is not dispositive. 477 U.S. at 72. The Court
found that a policy that was not "calculated to encourage victims of
harassment to come forward" did not insulate the company from liability.
Id. at 73. National's policy, although certainly laudable in its
intentions and objectives, in effect required Varner's supervisor to remain
silent notwithstanding his knowledge of the incidents. We can understand
an employer's desire to utilize a chain-of-command structure, but a
procedure that does not require a supervisor who has knowledge of an
incident of sexual harassment to report that information to those who are
in a position to take appropriate action falls short of that which might
absolve an employer of liability.
V.
National argues that Varner failed to timely file her administrative
complaint with respect to all except the November 22, 1991, incidents of
sexual harassment. A plaintiff is required to file a complaint under Title
VII and the MHRA with the relevant enforcement agency within three hundred
days of the discriminatory act. See 42 U.S.C. § 2000e-5(e); Mo. Rev. Stat.
§§ 213.075, 213.111. Varner filed a concurrent complaint with the MCHR and
the EEOC on May 18, 1992. The November 22, 1991, incident clearly falls
within the limitations period. The earlier incidents of verbal harassment,
however, do not. Because the witnesses could only approximate the date of
the first touching incident, it is unclear whether that incident fell
within the relevant period.
Even if we assume that the November 22 assault is the only incident
that fell within the statute of limitations, National's
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argument still must fail. We have found that evidence of a hostile
environment falls under the "continuing violation" exception to a statute
of limitations bar and that the limitations period runs from the "last
occurrence of discrimination." Gipson v. KAS Snacktime Co., 83 F.3d 225,
229 (8th Cir. 1996) (citations omitted). Under this theory, the entire
course of conduct creating the hostile environment suffered by Varner is
actionable.
VI.
Varner cross-appeals the district court's decision not to submit a
punitive damages instruction to the jury. To collect punitive damages
under the Civil Rights Act of 1991, Varner must show that National engaged
in discrimination "with malice or reckless indifference to [her] federally
protected rights." 42 U.S.C. § 1981a(b)(1). To collect punitive damages
under the MHRA, Varner must show that National's conduct was "outrageous
because of its evil motive or reckless indifference to [Varner's rights]."
Kientzy v. McDonnell Douglas Corp., 990 F.2d 1051, 1062 (8th Cir. 1993).
Varner made no showing that National acted with malice or deliberate
indifference or that its conduct was outrageous. See Nelson v. Boatmen's
Bancshares, Inc., 26 F.3d 796, 804 (8th Cir. 1994) (to recover punitive
damages, Missouri law requires showing of conduct that would "shock the
conscience and cause outrage"); Turic v. Holland Hospitality, Inc., 85 F.3d
1211, 1216 (6th Cir. 1996) (duplicitous actions of employees insufficient
to support punitive damages award under Civil Rights Act of 1991);
Pandazides v. Virginia Bd. of Educ., 13 F.3d 823, 830 n.9 (4th Cir. 1994)
(a showing of more than intentional discrimination is required to recover
punitive damages under Civil Rights Act of 1991). Accordingly, the trial
court did not err in refusing to submit a punitive damages instruction to
the jury.
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Given our holding on National's claims on appeal, we need not address
Varner's remaining claims on cross-appeal.
The judgment is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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