USA v. Stephen Erhart

1The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3199
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Monika Cheshewalla, Aaron Paul *
Michaels, Robert J. Petkoff, *
*
Appellants, * Appeal from the United States
* District Court for the
v. * Western District of Missouri.
*
Rand & Son Construction Company, *
*
Appellee. *
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Submitted: April 15, 2005
Filed: July 19, 2005
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Before WOLLMAN, HANSEN, and RILEY, Circuit Judges.
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WOLLMAN, Circuit Judge.
Monika Cheshewalla, Aaron Michaels, and Robert Petkoff appeal from the
district court’s 1 grant of summary judgment on their Title VII employment-related
claims. See 42 U.S.C. § 2000 et seq. Cheshewalla asserts sexual harassment and
retaliation claims, while the latter two plaintiffs assert only retaliation claims. We
affirm.

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I.
Rand & Son Construction Company (Rand) provides construction services for
various client companies, including Allied Honeywell (Honeywell), a defense
contractor. Rand employees working at Honeywell were required to have a badge for
security purposes. A red badge indicated that the individual was “uncleared,” or
lacked security clearance, and therefore had to be accompanied by a security guard.
A yellow or blue badge indicated that the individual was cleared. The process of
obtaining such clearance was complicated and could take up to eighteen months. In
the event of a reduction in force, Honeywell preferred that Rand retain employees
with blue or yellow badges over those with red badges. The plaintiffs, Rand
employees, were assigned to Honeywell’s maintenance project. Most Rand
employees working at Honeywell were either carpenters or laborers. Michaels and
Petkoff were hired in 2000, the former as a carpenter apprentice and the latter as a
carpenter. Cheshewalla was hired as a laborer in the same year. All three plaintiffs
were uncleared, having only red badges.
Since approximately 1995, Michael Gibbins served as foreman for the laborers
at Honeywell, while Danny Franks served as the foreman for the carpenters. In these
capacities, Franks indicated to Gibbins the work to be performed by the laborers.
Dave Burke, the lead foreman stationed at the site, was above Franks and Gibbins in
the chain of command. Ernest Patires, Rand’s Vice President, served as the project
manager for the Honeywell site, but was not stationed there.
On November 3, 2000, two female Honeywell employees reported to Linda
Christian, Rand’s EEO Officer, that one of Rand’s employees was exposing himself
to women. Christian’s investigations led her to believe that Cheshewalla was being
subjected to this behavior, and she contacted Cheshewalla and the three other female
laborers working at Honeywell to obtain more information. Cheshewalla denied that
anything had happened to her, but expressed her fear that she ran the risk of being
fired by talking to Christian. Christian told Cheshewalla that she would not be fired

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for speaking to her. Christian did not learn who was exposing himself, and none of
the women stated that they had been subjected to this display. Christian closed the
file on this issue on November 16, 2000. Approximately three days later, a man, now
known to be Petkoff, anonymously telephoned Christian and stated that Gibbins was
harassing women. Petkoff did not specify which women or what Gibbins was doing
to harass them. Gibbins was transferred to another job site the day of the telephone
call. Petkoff and Michaels later complained about Gibbins’s conduct to Burke,
Franks, Christian, and Patires.
On approximately January 8, 2001, Gibbins was reassigned to the Honeywell
site. On January 11, Christian heard rumors that Gibbins had been asking
Cheshewalla for a date and that they were driving to work together. Hours later,
Gibbins reported to Christian that he had heard rumors that he had sexually harassed
Cheshewalla. The next day, Petkoff confronted Gibbins about Gibbins’s treatment
of Cheshewalla, and the labor union registered a sexual harassment complaint by
Cheshewalla against Gibbins. The labor union’s business agent, Les Williams,
attempted to meet with the people involved, but Cheshewalla failed to attend.
Gibbins was once again transferred from the Honeywell site, never to return. On
January 16, Cheshewalla met with Christian and Patires, and told them that Gibbins
had been harassing her.
It is undisputed that the need for layoffs in the maintenance project arose in
January of 2001. Rand’s business is cyclical. The workload is lowest at the
beginning of each year when the funding for government contracts has yet to be
received. Therefore, layoffs commonly arose each year at this time. Michaels and
Petkoff were laid off on January 29. Cheshewalla missed work on the last two days
of January and on seven days in early to mid February. On February 16, the last of
these nine days of absence, Patires informed Cheshewalla by telephone that she had
been laid off.

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II.
We review de novo the district court’s grant of summary judgment. Shanklin
v. Fitzgerald, 397 F.3d 596, 602 (8th Cir. 2005). We view the evidence in the light
most favorable to the non-moving party and conclude that summary judgment was
proper only where there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Id.; Fed. R. Civ. P. 56(c).
Cheshewalla claims that she was subjected to a hostile work environment on
the basis of sexual harassment by Gibbins. To establish a hostile work environment
claim, Cheshewalla “must show that she was subjected to unwelcome sex-based
harassment that was sufficiently severe or pervasive to alter a term, condition, or
privilege of her employment.” Joens v. John Morrell & Co., 354 F.3d 938, 940 (8th
Cir. 2004). Assuming, arguendo, that the alleged harassment was sufficiently severe
to state a claim of hostile work environment, we turn to the question whether Gibbins
is properly considered a co-worker or a supervisor. If the former, Cheshewalla must
also show that Rand “‘knew or should have known of the conduct and failed to take
proper remedial action.’” Id. (quoting Dhyne v. Meiners Thriftway, Inc., 184 F.3d
983, 987 (8th Cir. 1999). If the latter, Rand “is vicariously liable for the harassment
unless it can establish the affirmative defense defined in Burlington Indus., Inc. v.
Ellerth.” Joens, 354 F.3d at 940; Faragher v. City of Boca Raton, 524 U.S. 775, 807-
08 (1998) (noting that the affirmative defense is available only when no tangible
employment action is taken). Because we conclude that Gibbins was not a
supervisor, we do not discuss the affirmative defense.
In Joens, we held that to be considered a supervisor, “the alleged harasser must
have had the power (not necessarily exercised) to take tangible employment action
against the victim, such as the authority to hire, fire, promote, or reassign to
significantly different duties.” Joens, 354 F.3d at 940. See also Weyers v. Lear
Operations Corp., 359 F.3d 1049, 1057 (8th Cir. 2004). Gibbins, as foreman, could
not hire, fire, or promote the laborers, nor could he assign them to a different job site.

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Patires possessed this authority and although he may have consulted with Gibbins on
such matters, the record is clear that Gibbins lacked any such authority. Cf.
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 747 (1998) (where the alleged
harasser was “a midlevel manager[,] …was a vice president in one of five business
units[, and] …had authority to make hiring and promotion decisions subject to the
approval of his supervisor”); Faragher, 524 U.S. at 807 (discussing vicarious liability
of the employer for harassment by a supervisor “with immediate (or successively
higher) authority over the employee”). The fact that Patires was not present at the
Honeywell site is irrelevant under the definition of supervisor established in Joens.
Finally, Cheshewalla’s belief that Gibbins possessed the authority of a supervisor
does not alter our conclusion in this case. See Weyers, 359 F.3d at 1057 n.7 (noting
that the alleged harasser’s “apparent authority would be an insufficient basis to
support a finding of supervisor status”).
Because Gibbins is considered a co-worker under the test set forth in Joens,
Cheshewalla’s claim is without merit unless she can demonstrate that Rand knew or
should have known of the harassment and failed to take proper remedial action. See
Dhyne, 184 F.3d at 987. The record demonstrates that Rand attempted to determine
at the outset what, if any, harassment was ongoing by requiring Christian to
investigate and then took remedial action by reassigning Gibbins to another job site
solely on the basis of an anonymous telephone call. Christian contacted the female
laborers at the Honeywell site and told them they could call her at work or at home.
Christian encouraged Cheshewalla to speak with her, telling Cheshewalla that she
would not be fired for speaking to her. In January 2001, Christian learned, after
considerable effort, that Gibbins was reportedly harassing Cheshewalla and it was
then that Christian and Williams received this information from Cheshewalla.
Gibbins was permanently transferred from the Honeywell site on the basis of the
reports, before Cheshewalla had confirmed the reports directly. Moreover,
Cheshewalla did not report any harassment occurring after January 11, when
Christian was first alerted that it was in fact Cheshewalla who was being harassed.

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Cheshewalla has not made any of the showings required in order for her to prevail on
this issue.
III.
Cheshewalla further claims that Rand retaliated against her for reporting that
Gibbins sexually harassed her. To make out a prima facie case of retaliation under
Title VII, Cheshewalla must show that: (1) she engaged in statutorily protected
conduct; (2) there was an adverse employment action; and (3) a causal connection
exists between this conduct and the adverse action. Sallis v. University of Minn., 408
F.3d 470, 477 (8th Cir. 2005). The first two elements are established by
Cheshewalla’s complaint to Christian and others, and her layoff. A material issue of
fact has not been raised, however, with regard to a causal connection between
Cheshewalla’s complaints and her layoff.
Cheshewalla has supplied no evidence of retaliation other than the fact that she
was laid off exactly one month after reporting that Gibbins had sexually harassed her.
The four-week interval between Cheshewalla’s complaint and her layoff is
insufficient to establish a showing of causal connection, given the other facts of this
case. We have held that “[g]enerally, more than a temporal connection between the
protected conduct and the adverse employment action is required to present a genuine
factual issue on retaliation,” Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th
Cir. 1999) (en banc), although in some cases we have held close temporal proximity
to be sufficient as a matter of law to demonstrate causal connection. See, e.g., Couty
v. Dole, 886 F.2d 147, 148 (8th Cir. 1989). Two events that occurred between the
protected conduct and the layoff bring this case within the reach of Kiel.
Cheshewalla missed many days of work and was in fact laid off on a day when she
was skipping work, and Rand was undergoing a period of layoffs and reduced work
availability. We conclude here, as we did in Kiel, that the intervening events “eroded
any causal connection” suggested by the temporal proximity of Cheshewalla’s
protected conduct and her layoff. 169 F.3d at 1136. With regard to the reduction in
the workforce that had been ongoing in the weeks before Cheshewalla was laid off,

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company policy dictated that uncleared laborers, such as Cheshewalla, should be the
first types of employees to be laid off. Moreover, Rand evinced a willingness to
transfer Gibbins to another job site, the first time on an anonymous tip, and the
second time on more reliable information. Without any evidence of retaliation, it
simply does not follow that Rand would take all appropriate actions (e.g., transferring
Gibbins), wait a month, and then decide to lay off Cheshewalla in retaliation for her
complaint. Under these circumstances, temporal proximity alone does not allow
Cheshewalla to prevail, because no reasonable jury could conclude from this scant
evidence that Rand had retaliated against her.
Whether we cabin our examination of these intervening events under the third
element of the prima facie case or under the subsequent step of the defendant’s
legitimate, nondiscriminatory reason for its actions, see Peterson v. Scott County, 406
F.3d 515, 524 (8th Cir. 2005), the result is the same.
The fact that Cheshewalla was not later rehired when Rand had work to offer
does not raise an issue of material fact. No explanation need be given for the failure
to rehire an employee who was laid off on the day of her ninth absence from work
within a short period of time. Regardless of whether Cheshewalla’s departure was
labeled a layoff or a termination, no causal connection between the protected activity
and adverse employment action has been shown.
IV.
Michaels and Petkoff allege that Rand retaliated against them for reporting that
Gibbins was sexually harassing Cheshewalla. Neither the plaintiffs’ brief nor the
district court’s opinion addresses the element of causal connection required to make
out a prima facie case of retaliation. Based upon our review of the record, we find
their claims too attenuated to withstand summary judgment, for there is a notable
absence of any evidence tying their reports of sexual harassment to their layoffs and

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2 We have considered plaintiffs’ contention that Franks’s response to a question
constituted evidence of retaliation and conclude that it is without merit.
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subsequent predicament of not being rehired.2 As with Cheshewalla, there is a
relatively close temporal proximity between their protected conduct and their layoffs.
Yet again, this appears to be a mere coincidence, as the usual January reduction in
force was ongoing and plaintiffs’ red badge status dictated that they be disfavored in
the process. Michaels’s and Petkoff’s disfavored status notwithstanding, three
journeymen carpenters had already been laid off before January 29, 2001.
The district court’s thorough analysis of why Rand’s rationales for laying off
and not rehiring Michaels and Petkoff are not pretexts would make their claims
unavailing had a prima facie case been made out. We conclude, however, that such
an analysis is unnecessary, given that the plaintiffs have not carried their initial
burden in this regard.
The judgment is affirmed.
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