Chavonya Watson v. Heartland Health Labortories, et al

Filing

OPINION FILED - THE COURT: James B. Loken, Lavenski R. Smith and Steven M. Colloton AUTHORING JUDGE:Lavenski R. Smith (PUBLISHED) [4288657] [14-2402]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-2402
___________________________
Chavonya Watson
lllllllllllllllllllll Plaintiff - Appellant
v.
Heartland Health Laboratories, Inc.
lllllllllllllllllllll Defendant - Appellee
Michelle Gaunt
lllllllllllllllllllll Defendant
____________
Appeal from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: February 10, 2015
Filed: June 25, 2015
____________
Before LOKEN, SMITH, and COLLOTON, Circuit Judges.
____________
SMITH, Circuit Judge.

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Chavonya Watson appeals the district court's1 grant of summary judgment in
favor of her former employer, Heartland Health Laboratories, Inc. ("Heartland"), on
her claims of hostile work environment, constructive discharge, and retaliation under
the Missouri Human Rights Act (MHRA). We affirm.
I. Background
Heartland provides laboratory services, including blood work, to facilities that
provide long-term healthcare. Watson, an African-American woman, began working
for Heartland as a route phlebotomist on June 18, 2012. As a route phlebotomist,
Watson's workday included traveling to several facilities, drawing blood and
collecting urine or stool samples from those facilities' patients, and returning to the
Heartland lab for a few hours to process the samples that had been collected that day.
As a new employee, Watson was subject to a 90-day probationary period.
Watson's route included Plaza Manor Nursing and Rehabilitation Center
("Plaza Manor"). According to her testimony, Watson spent "[a] couple hours" at this
facility each day. Watson worked on both the second and the third floors at Plaza
Manor. Watson was assigned to draw blood from Charles Ramsey, a third-floor
patient.
On September 10, 2012, Ramsey physically accosted Watson. While Watson
was attempting to draw Ramsey's blood, he began touching Watson on the inside of
her thigh and moved his hand upward. Watson told Ramsey to stop and brushed his
hand away several times. When Ramsey touched her "crotch area," Watson took a
different strategy and knelt down to draw Ramsey's blood. At this point, Ramsey
"started putting his hand up the side of [Watson] because [her] crotch was no longer
in his reach." After she stopped attempting to draw his blood because of the continued

1

The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
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touching, Ramsey "grabbed the back of [Watson's] neck to try to kiss [her]." Watson
left Ramsey's room and reported the incident to her employer.
Watson called her phlebotomist team lead, Michelle Gaunt. Gaunt testified that
she relayed the information to the phlebotomy supervisor, Tina Akers. Watson
testified that she was able to finish the rest of her workday. By 12:24 p.m. that same
day, Gaunt entered an alert in Heartland's file on Ramsey stating "[s]end male only
to draw." Watson conceded that "Heartland . . . took prompt action to make sure [she]
never provided medical services for . . . Ramsey after [she] made the complaint."
Further, the record reflects that Heartland's Sales Manager, David Clay, contacted
Plaza Manor's Assistant Director of Nursing, Wayne Herring, to address the incident
that same day, to which Herring communicated "that he would take care of the
situation." Upon returning to the lab at the end of her workday, Watson testified that
she asked Gaunt and another team lead, Trisha Davis, if she "could possibly . . .
transfer [Plaza Manor] or trade [Plaza Manor]" so that it would no longer be a part of
her daily route. Watson testified that both team leads responded affirmatively. Watson
testified that when she requested a route change from Akers, however, Akers told her
"no, that [Watson] was hired to do that route and if [she] didn't do that route then
[she] wouldn't have a job." Watson continued to go to Plaza Manor as a part of her
route.
Watson no longer had to provide services to Ramsey and risk further physical
contact while working at Plaza Manor; however, Ramsey still managed to verbally
assault Watson on several occasions. On September 11, 2012, while Watson was
walking past Ramsey in a hallway, Ramsey called her "just a bunch of b[*****]s and
n[****]r b[*****]s." According to Watson, this contact lasted only "[s]econds."
Watson testified that she reported this incident to Gaunt when she returned to the lab
later that day.

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The second incident happened a few days later when Ramsey saw Watson
leaving the elevator. Ramsey declared "that they were going to put him out." Watson
also confirmed that this incident lasted "[j]ust a couple of seconds." Watson
understood Ramsey's statement to mean that Plaza Manor was going to remove
Ramsey from the facility, but she was never notified specifically when this would
happen. The third incident was similar to the second. When Watson was leaving the
elevator, Ramsey was again walking by and said to another patient that "[t]his
b[***]h is getting me put out." Watson notified Akers of Ramsey's continued verbal
abuses, to which Aker's allegedly responded that "it comes with the territory."
The fourth incident happened sometime later when Ramsey was "hanging out
of his door and he saw [Watson] and he came down to the nurses station and just
stood there and stared at [Watson] the whole time [she] was there." Watson admitted
that this incident was "offputting," but that Ramsey did not "harass [her] sexually" or
"harass [her] racially in any way."
The fifth incident happened when Watson was walking past Ramsey's room
and "he called [her] a b[***]h." A nurse standing nearby heard the comment and
immediately confronted Ramsey.
The sixth incident happened when Watson was assigned to draw the blood of
Ramsey's roommate. When Watson got the assignment and went to the patient's room,
she did not realize that the patient was Ramsey's new roommate. Upon arriving at
Ramsey's room, Ramsey promptly asked her "what the f[**]k are you doing over
here[?]" Watson confirmed that this incident only "lasted a couple of seconds."
Watson called Gaunt, who told Watson that she would have another person draw
Ramsey's roommate's blood. Watson testified that when she returned to the lab later
that day, however, Gaunt told her that she should have drawn the roommate's blood
and that Gaunt said she was going to write Watson up for failing to do so. Watson

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never saw this write-up, nor was she asked to sign the write-up. Heartland's policy for
disciplinary procedures requires employees to sign write-ups.
The seventh and last incident happened on Friday, September 21, 2013. Watson
was waiting for an elevator when Ramsey walked past her and said "[t]hey're putting
me out, bitch. I'm going to get you." Watson confirmed that this incident "lasted less
than a minute" because Ramsey "kept walking as he was saying it."
The next Monday, September 24, 2012, Watson sent a text message to someone
at Heartland saying that she had a flat tire. Watson did not come into work that day
or the succeeding two days. Coincidentally, September 24 was the same day that
Ramsey was removed from Plaza Manor. Watson testified that "there was nobody else
[at Plaza Manor] I had a problem with but just [Ramsey]." Watson even confirmed
that "if [she] had gone to work that day, [her] problem would have been alleviated[.]"
Under Heartland's employment policy, an employee is considered to have voluntarily
abandoned his or her job after two consecutive days of absence without properly
notifying Heartland. Thus, by September 26, Heartland considered Watson to have
abandoned her job. On September 24–26, Heartland called Watson and left multiple
voicemail messages for her. Watson admitted that she "stopped answering [her]
phone for [Heartland], [even though] they were leaving [her] messages but [she] was
deleting them. [She] didn't even listen to them." Watson returned to Heartland's lab
on September 27, 2012, to return their equipment. Heartland's position has always
been that if not for her voluntary abandonment, Watson would still have a job at
Heartland.
During her short employment at Heartland, Watson received several
disciplinary write-ups. She received a write-up on August 14 and a verbal warning
on August 16, 2012, both of which she considered legitimate. Contemporaneous with
Ramsey's offensive conduct, Watson also received two disciplinary warnings. On
September 13, 2012, she received a verbal warning for an incident unrelated to
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Ramsey. Watson agreed that the verbal warning was legitimate and that the document
recording the incident accurately described what actually happened. On September
18, 2012, Watson received another warning for an incident that happened while she
was working away from Plaza Manor. Watson contests the legitimacy of this warning,
which was for her alleged failure to draw blood from a patient who refused to permit
it. Based on these warnings, Watson suffered no adverse consequences, was not
"docked," was never "told not to report to work," and her "job assignments [were not]
changed in any manner."
Also on September 18, 2012, Watson was notified that Heartland was
extending her 90-day probationary period. Watson confirmed that Heartland
"believe[d] that [her] missing so much work interfered with [her] consistency" and
that she "needed to have 30 days without an absence" because she "hadn't gone 30
days without an absence up to [that] point." Further, Watson admitted that she "didn't
have a problem with extending the period" because she "needed more time . . . to be
consistent and things like that."
Watson filed the instant lawsuit alleging violations of the MHRA. Watson
alleged that Ramsey's actions constituted sexual and racial harassment that created
a hostile work environment, that Heartland constructively discharged her, and that
Heartland retaliated against her when she reported Ramsey's harassment. The district
court granted Heartland summary judgment on all of Watson's claims. First, the
district court found that Ramsey's actions were not enough to affect a term, condition,
or privilege of Watson's employment to constitute a hostile work environment.
Further, the court found that Heartland's prompt action effectively addressed the
instances of harassment that it knew about. Second, the district court found that
Watson was not constructively discharged because her working conditions were not
so intolerable that she was forced to quit. Third, the court found that Heartland did
not retaliate against Watson because Watson was not constructively discharged and

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the disciplinary write-ups and extension of her probation period were not adverse
employment actions.
II. Discussion
On appeal, Watson argues the district court erred granting Heartland summary
judgment for several reasons. First, she argues that there are genuine disputes of
material fact for her hostile work-environment claim to survive summary judgment.
Second, she argues that Heartland is not entitled to summary judgment regarding her
constructive-discharge claim. Finally, she argues that Heartland is not entitled to
summary judgment regarding her retaliation claim because she suffered adverse
employment actions.
A. Hostile Work Environment
Watson first argues that there are genuine disputes of material fact sufficient
to survive summary judgment on her claim that Heartland created a hostile work
environment by failing to adequately mitigate Ramsey's sexual and racial harassment.
We review the district court's grant of summary judgment de novo. LeGrand v. Area
Res. for Cmty. & Human Servs., 394 F.3d 1098, 1101 (8th Cir. 2005). "Summary
judgment is appropriate when the evidence, viewed in the light most favorable to the
nonmoving party, presents no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law." Hesse v. Avis Rent A Car Sys., Inc., 394 F.3d
624, 629 (8th Cir. 2005) (citing Fed. R. Civ. P. 56(c); Matsushita Electric Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)).
"In deciding a case 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 Md. Heights, 231 S.W.3d 814, 818 (Mo. 2007)
(en banc) (citation omitted). The MHRA prohibits employers from "discriminat[ing]
against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's race, color, religion, national
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origin, sex, ancestry, age or disability[.]" Mo. Rev. Stat. § 213.055.1(1)(a). In order
to survive summary judgment and take her case to a jury, Watson must show that "(1)
she . . . is a member of a protected group; (2) she was subjected to unwelcome sexual
harassment; (3) her gender was a contributing factor in the harassment; . . . (4) a term,
condition or privilege of her employment was affected by the harassment"; and (5)
"the employer knew or should have known of the harassment and failed to take
prompt and effective remedial action." Hill v. Ford Motor Co., 277 S.W.3d 659, 666,
666 n.6 (Mo. 2009) (en banc) (citation omitted). We assume for the sake of analysis
that an employer can be liable under the MHRA for harassment by a third party who
is not an employee if these elements are satisfied. See Freeman v. Dal-Tile Corp., 750
F.3d 413, 422–23 & n.4 (4th Cir. 2014). The district court found that Watson could
not prove the fourth element—that the alleged harassment affected a term, condition,
or privilege of her employment.
The standard for proving the fourth element is demanding. "'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."' Lynn v. TNT
Logistics N. Am. Inc., 275 S.W.3d 304, 308 (Mo. Ct. App. 2008) (quoting Barekman
v. City of Republic, 232 S.W.3d 675, 679 (Mo. Ct. App. 2007)). This requires the
harassment alleged to be "'so intimidating, offensive, or hostile that it poisoned the
work environment,'" LeGrand, 394 F.3d at 1101 (quoting Tuggle v. Mangan, 348
F.3d 714, 720 (8th Cir. 2003)), and that the "workplace was 'permeated with
discriminatory intimidation, ridicule, and insult.'" Id. at 1101–02 (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
Further, Watson must prove this demanding standard "both as it was
subjectively viewed by [her] and as it would be objectively viewed by a reasonable
person." Cooper v. Albacore Holdings, Inc., 204 S.W.3d 238, 245 (Mo. Ct. App.
2006) (citing Howard v. Burns Bros., Inc., 149 F.3d 835, 840 (8th Cir. 1998)). When
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considering the objective hostility of a work environment, we consider "the totality
of the circumstances, including the frequency and severity of the discriminatory
conduct, whether such conduct was physically threatening or humiliating, as opposed
to a mere offensive utterance, and whether the conduct unreasonably interfered with
the employee's work performance." Eliserio v. United Steelworkers of Am. Local 310,
398 F.3d 1071, 1076 (8th Cir. 2005) (citation omitted).
The question before this court, thus, is whether Ramsey's conduct over the
period of ten working days2 —including a sexual touching, a single racial slur, four
sexually degrading slurs, and a threat3—raise a genuine dispute of material fact to
survive summary judgment. In particular, the court must examine whether a
reasonable person would consider Ramsey's conduct toward Watson to change a term,
condition, or privilege of Watson's employment thus poisoning the work environment
and permeating the environment with intimidation, ridicule, and insult.
The frequency of Ramsey's conduct was moderate but its duration was brief.
Watson testified to a total of eight instances of physical and nonphysical conduct by
2

September 10, 2012—the date the alleged harassment began—was a Monday.
September 21, 2012—the last date that Watson was subjected to the alleged
harassment—was the Friday of the following week.
3

This list does not include several of Ramsey's alleged actions because of a lack
of sexual or racial animus. When Ramsey was in the door of his room and stared at
Watson for a prolonged period of time, there was no sexual or racial component to
his action. Similarly, such a component is lacking when Ramsey told Watson the first
time "that they were going to put him out." Also, Ramsey's comments to Watson
when she unwittingly entered his room to draw blood from his roommate also lack
a sexual or racial component. Therefore, these actions cannot be said to constitute
sexual or racial harassment because we cannot determine, as a matter of law, that
Watson's membership in a protected class was a "contributing factor in the
harassment." Hill, 277 S.W.3d at 666. We will take these incidents into account,
however, when assessing the "totality of the circumstances" of the work environment.
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Ramsey over a period of ten working days. Offensive comments, under Missouri law,
have been found sufficient to show a hostile work environment. See Lynn, 275
S.W.3d at 307–08. Watson's case, however, differs. Watson only worked at Plaza
Manor for a couple of hours a day. Thus, she was not subject to Ramsey's conduct
throughout her workday as in other Missouri and federal cases finding a hostile
working environment existed. See, e.g., Ross v. Douglas Cnty., Neb., 234 F.3d 391,
393 (8th Cir. 2000); Lynn, 275 S.W.3d at 307 (Mo. Ct. App. 2008). Watson also
acknowledges that her interactions with Ramsey lasted mere seconds. Given the short
duration of Ramsey's actions, we conclude that an objective person would not find
that Ramsey's conduct was sufficiently pervasive to poison Watson's work
environment or permeate it with intimidation, ridicule, and insult. Ramsey's physical
touching of Watson was highly offensive, but applying controlling precedent, his act
does not establish a hostile work environment attributable to Heartland. See,
LeGrand, 394 F.3d at 1100, 1102.
Regarding the verbal harassment, Watson relies on Ross v. Douglas County,
Nebraska to support her contention that being called a highly offensive racial slur is
enough to constitute a hostile work environment. 234 F.3d 391. In Ross, we found
there was sufficient evidence to constitute a hostile work environment because the
African-American victim was called a "n[****]r" and "black boy" for what appeared
to be several years from 1995–97 with further "evidence at trial that [the harasser]
constantly referred to [the victim] by a racial epithet." 234 F.3d at 396, 397. This case
differs markedly from Ross, and Ramsey's single racial insult does not amount to the
"stream of racial slurs" in other cases where we have found a hostile work
environment. Delph v. Dr. Pepper Bottling Co., 130 F.3d 349, 356–57 (8th Cir.
1997).
Watson also relies on the First Circuit case of Forrest v. Brinker International
Payroll Co., LP to support her argument that being called sexually degrading slurs
"has been consistently held to constitute harassment based upon sex." 511 F.3d 225,
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229 (1st Cir. 2007) (citations omitted). Forrest involved a coworker "barrag[ing]" the
victim at work with "sexually degrading, gender-specific epithets, such as 'slut,' 'cunt,'
'whore,' and 'b[***]h.'" Id. Forrest is not controlling precedent, but even if it were,
the instant facts are not comparable.
Viewing Watson's claims in light of precedent, the district court did not err by
finding that Ramsey's behavior did not rise to the level of actionable hostile work
environment sexual harassment. Thus, we agree with the district court that the
evidence presented by Watson fails to show that Ramsey's conduct affected a term,
condition, or privilege of her employment.4 Thus, Heartland is entitled to judgment
as a matter of law on Watson's hostile work-environment claim. Further, there are no
disputes of material fact because we have considered the facts in the light most
favorable to Watson.
B. Constructive Discharge
Next, Watson argues that the district court erred in granting summary judgment
in favor of Heartland on her constructive-discharge claim. In order to succeed on a
constructive-discharge claim under the MHRA, Watson must prove the following
elements: "1) a reasonable person in the employee's situation would find the working
conditions intolerable, and 2) the employer intended to force the employee to quit, or
the employer could reasonably foresee that its actions would cause the employee to
quit." DeWalt v. Davidson Serv./Air, Inc., 398 S.W.3d 491, 501 (Mo. Ct. App. 2013)
(citing Gamber v. Mo. Dep't of Health & Senior Servs., 225 S.W.3d 470, 477 (Mo.
Ct. App. 2007)). Missouri courts take the following standards into account when
deciding if these elements are met:

4

Accordingly, we need not address the district court's alternative ruling that
Heartland did in fact take prompt and effective remedial action to stop the alleged
harassment. See Hill, 277 S.W.3d at 666 n.6.
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A claim of constructive discharge requires aggravating factors or a
continuous pattern of discriminatory treatment. [Gamber, 225 S.W.3d
at 477]. Evidence of a single instance is insufficient. Id. Reasonableness
requires an employee not to assume the worst, and not to jump to
conclusions too quickly. Id. No constructive discharge occurs where an
employee quits without giving the employer a reasonable chance to
resolve the problem. Id.
Id.
We conclude that a reasonable person would not find Watson's work
environment "intolerable." As noted above, Watson was subject to one unwanted
instance of physical touching and several verbal assaults by Ramsey, a patient at
Plaza Manor, a client of her employer. Ramsey's actions lasted for brief portions of
some eight-hour workdays over the course of ten days. While Watson testified as to
her subjective belief that Heartland was not doing anything to remedy the situation,
the undisputed facts belie that assertion. After the first reported incident, Heartland
addressed the matter by removing Ramsey from her list of patients from which to
draw blood. Watson argues that Heartland could have transferred her to another route
immediately but that Akers told her that she would not get a transfer. Not receiving
her preferred remedy, however, did not force her departure ten days later. To
Watson's credit, we recognize that a reasonable waiting period is inversely related to
the severity of situation. Compare, DeWalt, 398 S.W.3d at 501 (giving the employer
"two weeks to resolve the problem" considering the seriousness of the employer
asking the employee to violate his medical restrictions at work was reasonable), with
Gamber, 255 S.W.3d at 479 (giving the employer "six weeks to correct the situation"
was not reasonable). Given the nature of alleged conduct in this case, however,
Watson was not reasonable in voluntarily abandoning her job after giving her
employer only ten working days to remedy the perceived intolerability. On this
record, we conclude Heartland is entitled to judgment as a matter of law as to
Watson's constructive-discharge claim.
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C. Retaliation
Finally, Watson argues that Heartland retaliated against her for reporting
Ramsey's conduct. The MHRA makes it unlawful for an employer "[t]o retaliate or
discriminate in any manner against any other person because such person has opposed
any practice prohibited by this chapter or because such person has filed a complaint,
testified, assisted, or participated in any manner in any investigation, proceeding or
hearing conducted pursuant to this chapter." Mo. Ann. Stat. § 213.070(2). To succeed
on a claim of retaliation under the MHRA, Watson must prove that "(1) [s]he
complained of discrimination; (2) [Heartland] took adverse action against [her]; and
(3) a causal relationship existed between the complaint and the adverse action."
McCrainey v. Kan. City Mo. Sch. Dist., 337 S.W.3d 746, 753 (Mo. Ct. App. 2011)
(citing Cooper, 204 S.W.3d at 245). We have already concluded that Watson was not
constructively discharged; thus, her argument that such discharge was an "adverse
action" fails. We will consider whether the two verbal warnings and extension of her
probationary period constitute retaliations under the MHRA.5
In order to prove the second element of retaliation, the "adverse action" must
"result[] in damage to the plaintiff." Keeney v. Hereford Concrete Prods., Inc., 911
S.W.2d 622, 625 (Mo. 1995) (en banc). Heartland argues that this requirement of an
adverse action defeats Watson's retaliation claim—which is based on the write-ups
and extension of her probationary period—because she was not adversely affected at
all by these actions. Heartland did not reduce Watson's pay, lower her work hours,
5

Watson also alleges that Gaunt issued a disciplinary write-up for failing to
draw Ramsey's roommate's blood. Watson provides no proof, however, that this
write-up exists. She has never seen this write-up and was never asked to sign it. We
do not consider mere speculation on summary judgment, but only facts that are
supported by evidence. See Hamilton v. Bangs, McCullen, Butler, Foye & Simmons,
L.L.P., 687 F.3d 1045, 1050 (8th Cir. 2012) ("To survive a motion for summary
judgment, [a plaintiff] must present more than unsupported conclusions and
speculative statements, which do not raise a genuine issue of fact." (quotation
omitted) (alteration in original)).
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and did not change her job duties. Watson's evidence does not establish even nominal
damage based on Heartland's disciplinary actions
Further, Watson has failed to show evidence supporting the third element of
her retaliation claim: that the alleged adverse actions have a causal relationship with
her complaints of Ramsey's harassment. Watson's strongest argument is that the
adverse actions "followed the protected activity so closely in time as to justify an
inference of retaliatory motive." Kim v. Nash Finch Co., 123 F.3d 1046, 1060 (8th
Cir. 1997) (quotation and citation omitted). Watson received two verbal warnings on
September 13 and 18, 2012, just days after her complaints of Ramsey's physical
touching and initial verbal harassments. Similarly, Watson was notified on September
18, 2012, that her 90-day probationary period would have to be extended because she
failed to work the standard 40 hours per week for the 90-day period. First, "[m]ore
than a temporal connection between an employee's protected conduct and the adverse
employment action is required to create a genuine factual issue on causation." Hesse,
394 F.3d at 633; see also Buettner v. Arch Coal Sales Co., 216 F.3d 707, 716 (8th Cir.
2000). Second, Watson presents no evidence that her reporting of Ramsey's
harassment was a contributing factor to the verbal warnings and extension of her
probationary period. Rather, the record shows that Watson had received two previous
verbal warnings in August 2012 for legitimate reasons. Watson even admitted that the
verbal warning on September 13, 2012, was legitimate. Watson also admitted that she
"didn't have a problem with extending the [probationary] period" because she "needed
more time . . . to be consistent and things like that." Thus, Watson's allegation that her
reports of Ramsey's harassment produced the adverse actions are speculative.
Watson finally argues that the actions and words of Akers and Gaunt showed
"hostility, and retaliatory animus." See Jackson v. City of Hot Springs, 751 F.3d 855,
862 (8th Cir. 2014) (considering an FMLA retaliation claim, stating that "[e]vidence
that gives rise to an inference of a retaliatory motive on the part of the employer is
sufficient to establish a causal link" (quotation and citations omitted)). We do not
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believe a reasonable jury could draw this inference from the facts presented. Watson's
claim for retaliation fails as a matter of law.
III. Conclusion
For the reasons stated herein, we affirm.
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