Mooneyhan v. Telecommunications Management LLC

Filing 34

MEMORANDUM AND ORDER. IT IS HEREBY ORDERED that Defendants Motion for Summary Judgment (Doc. 26) is granted. A separate Judgment in favor of Defendant will accompany this Memorandum and Order. IT IS FURTHER ORDERED that Defendants Motion to Strike/Bar Plaintiff's Amended Rule26(a) Initial Disclosures, Amended Answers to Interrogatories, and Identification of Mr. Walter Johnston, FNP (Doc. 21) is denied as moot.. Signed by Magistrate Judge Abbie Crites-Leoni on 11/15/17. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
KIMBERLY MOONEYHAN,
Plaintiff,
v.
TELECOMMUNICATIONS
MANAGEMENT, LLC, D/B/A
NEWWAVE COMMUNICATIONS,
Defendant.

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Case No. 1:16 CV 118 ACL

MEMORANDUM AND ORDER
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

1

Mooneyhan conceded the dismissal of Count II due to her failure to comply with the
requirements of the Missouri Human Rights Act. The Court dismissed Count II in an Order
dated October 17, 2016. (Doc. 15.)
Page 1 of 28

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).
2

The parties dispute whether Mooneyhan resigned on July 6, 2014, or she was terminated on
July 8, 2014. Regardless, Mooneyhan last reported for work at NewWave on July 6, 2014.

2

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.

Facts3
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.

3

The undisputed facts are taken from facts that (1) Mooneyhan admitted were undisputed in her
Response or (2) Mooneyhan alleged were disputed but failed to properly and/or directly
controvert. The movant’s statement of facts are deemed admitted if not specifically controverted
by the party opposing the motion with specific references to portions of the record as required by
Local Rule 4.01(E) and Federal Rule of Civil Procedure 56(c)(1).

3

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

4

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 smileyface 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

4

Mooneyhan disputes that she had accrued 5.25 attendance points at that time, and contends that
at least two of these points were assessed erroneously. This dispute is immaterial to the
resolution of Defendant’s Motion.

5

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.

5

Mooneyhan admits that she sent the emails but claims that they were sent at Lawrence’s
direction.

6

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.”

7

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.

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g.

On or about July 3, 2014, Edsall tightly grabbed Mooneyhan by the arm and
rubbed it up and down and begged Mooneyhan not to quit her job.

h.

On or about July 6, 2014, Edsall approached Mooneyhan and suggested they go
into the break room and pay each other to climb on the tables and take off their
clothes.

i.

On multiple other occasions during her employment with Defendant, Edsall told
Mooneyhan his sexual advances were Mooneyhan’s fault because she wore
makeup.

j.

On multiple other occasions, Edsall made other sexually suggestive comments
about Mooneyhan’s body and the size of her breasts, and requested multiple times
that Mooneyhan engage in a sexual encounter with him.

Mooneyhan claims that the following incidents involving Brandon Lawrence occurred
during her employment:
a.

During Mooneyhan’s first monitoring session with Lawrence, Lawrence reached
between Mooneyhan’s legs to turn off her headset.

b.

On another occasion, while again being monitored on telephone calls by
Lawrence, Lawrence told Mooneyhan he was attracted to her and reached to
adjust a microphone for telephone calls while rubbing his hand and arm across
Mooneyhan’s breast. Lawrence then dropped the microphone on the floor and
reached between Mooneyhan’s legs to retrieve it.

c.

The following day, Lawrence and Edsall 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.

In addition, Mooneyhan alleges that “other male employees and/or supervisors of
Defendant” sexually harassed her on the following occasions:
a.

Engaging in sexual conversations including discussions of pornography in
Mooneyhan’s presence.

b.

Making comments about Mooneyhan’s makeup, physical body, and breasts.

c.

Telling Mooneyhan they were “watching her” and pressuring Mooneyhan to have
a “moment” alone with them.

d.

Rubbing Mooneyhan’s neck and attempting to unfasten her bra strap.

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IV.

Discussion
“Title VII prohibits employers from discriminating based on sex with respect to

compensation, terms, conditions, or privileges of employment.” Jenkins v. Winter, 540 F.3d 742,
748 (8th Cir. 2008) (citing 42 U.S.C. § 2000e-2(a)(1)). “Discrimination based on sex that creates
a hostile or abusive working environment violates Title VII.” Jenkins, 540 F.3d at 748 (citing
Brenneman v. Famous Dave’s of Am., Inc., 507 F.3d 1139, 1143 (8th Cir. 2007), quoting Weger
v. City of Ladue, 500 F.3d 710, 718 (8th Cir. 2007)). “A hostile work environment arises when
sexual conduct has the purpose or effect of unreasonably interfering with an individual’s work
performance or creating an intimidating, hostile, or offensive working environment.” Anda v.
Wickes Furniture Co., Inc., 517 F.3d 526, 531 (8th Cir. 2008) (citation omitted).
The Supreme Court explained that under Title VII, an employer's liability for an
employee’s harassment of another employee may depend on the status of the harasser:
If the harassing employee is the victim’s co-worker, the employer is liable only if it
was negligent in controlling working conditions. In cases in which the harasser is a
“supervisor,” however, different rules apply. If the supervisor’s harassment culminates in a tangible employment action, the employer is strictly liable. But if no tangible
employment action is taken, the employer may escape liability by establishing, as an
affirmative defense, that (1) the employer exercised reasonable care to prevent and
correct any harassing behavior and (2) that the plaintiff unreasonably failed to take
advantage of the preventive or corrective opportunities that the employer provided.
Id., at 807, 118 S.Ct. 2275; Ellerth, supra, at 765, 118 S.Ct. 2257. Under this framework, therefore, it matters whether a harasser is a “supervisor” or simply a co-worker.
We hold that an employee is a “supervisor” for purposes of vicarious liability under
Title VII if he or she is empowered by the employer to take tangible employment
actions against the victim. . .
Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013).
To establish a prima facie hostile work environment claim for co-worker harassment,
Mooneyhan must prove: (1) she was a member of a protected group; (2) the occurrence of
unwelcome harassment; (3) a causal nexus between the harassment and her membership in the

10

protected group; (4) the harassment affected a term, condition, or privilege of employment; and
(5) the employer knew or should have known of the harassment and failed to take prompt and
effective remedial action. Jenkins, 540 F.3d at 748, citing Anda, 517 F.3d at 531. Harassment
affects a term, condition, or privilege of employment if it is “sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an abusive working environment.”
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Savings Bank, FSB v.
Vinson, 477 U.S. 57, 67 (1986)).
NewWave argues that Mooneyhan is unable to demonstrate the fourth or fifth elements of
a hostile work environment claim. Mooneyhan responds that a genuine issue of material fact
exists as to whether she suffered a constructive discharge, which would satisfy the fourth
element. As to the fifth element, Mooneyhan contends that she reported instances of harassment
to Cathy Johnson, who could be reasonably expected to report the conduct to the appropriate
management.
In its Reply, NewWave notes that Mooneyhan’s Complaint does not plead a constructive
discharge claim. NewWave argues that, to the extent Mooneyhan’s constructive discharge claim
is viable under the pleadings, it lacks merit.
A.

Constructive Discharge

As NewWave points out, Mooneyhan does not specifically plead a constructive discharge
claim. Because the pleadings reveal that it is Mooneyhan’s intent to plead such a claim, the
undersigned will analyze whether she has set forth sufficient evidence to support a constructive
discharge claim.

11

“To prove a constructive discharge, an employee must show that the employer
deliberately created intolerable working conditions with the intention of forcing her to quit.”
Blake v. MJ Optical Inc., 870 F.3d 820, 826 (8th Cir. 2017) (citations omitted). An objective
standard is applied to determine whether a constructive discharge occurred. Bergstrom-Ek v.
Best Oil Co., 153 F.3d 851, 858 (8th Cir. 1998). An employee claiming constructive discharge
shoulders a substantial burden. MJ Optical, 870 F.3d at 826, citing O’Brien v. Dep’t of Agric.,
532 F.3d 805, 820-11 (8th Cir. 2008).
The Eighth Circuit “has consistently recognized that an employee is not constructively
discharged if she ‘quits without giving [her] employer a reasonable chance to work out a
problem.’” Id., citing Trierweiler v. Wells Fargo Bank, 639 F.3d 456, 460 (8th Cir. 2011)
(alteration in original, emphasis added) (quoting Brenneman v. Famous Dave’s of Am., Inc., 507
F.3d 1139, 1144 (8th Cir. 2007). “Part of an employee’s obligation to be reasonable is an
obligation not to assume the worst, and not to jump to conclusions too fast.” Smith v. Goodyear
Tire & Rubber Co., 895 F.2d 467, 473 (8th Cir. 1990), citing Garner v. Wal-Mart Stores, Inc.,
807 F.2d 1536, 1539 (11th Cir. 1987) (emphasis in original). “Failure to seek a resolution before
quitting. . .is fatal to [a] constructive discharge claim.” MJ Optical, 870 F.3d at 826 (citations
omitted).
Mooneyhan claims that there is sufficient evidence for a jury to conclude that she was
constructively discharged because any person would find the complained of harassment
intolerable. Mooneyhan cites her deposition testimony, in which she described the following
instances of harassment: she was propositioned for sex three times by Zeth Edsall; Brandon
Lawrence twice used reaching for work equipment as an excuse to inappropriately touch her
body; multiple male employees touched her in a number of ways, including rubbing her arm,

12

legs, and neck; a male employee asked what her bra size was; another employee tried to unhook
her bra; Lawrence made numerous comments about her breasts; and Edsall and Lawrence made a
comment about having sex together in the room in which they took her to sign a disciplinary
form. (Doc. 30 at 6; 28-3 at 30, 33, 35-36, 39, 40, 43.) She further argues that, based on her
“repeated attempts to report her harassment to numerous employees of Defendant,” she was
justified in believing there was no chance at fair treatment. (Doc. 30 at 6.)
The undersigned finds that, even accepting the alleged instances of harassment as true,
Mooneyhan has failed to support a constructive discharge claim. Although the parties dispute
whether Mooneyhan resigned on July 6, 2014, or was terminated on July 8, 2014, this factual
dispute is immaterial to the resolution of this claim. Assuming for the purposes of the instant
Motion that Mooneyhan quit on July 6 as she claims, the record does not support her allegation
that she was forced to quit due to harassment so severe as to create an objectively hostile or
abusive work environment.
First, Mooneyhan has failed to produce evidence that any employee at NewWave
intended for her to quit. Her testimony demonstrates that both Lawrence and Edsall expressed
the opposite intent. Specifically, Mooneyhan testified that Edsall begged her not to quit on July
3, 2014, just three days before she resigned. (Doc. 28-3 at 40-41.) She claims that Lawrence
told her to type the June 29 emails because he was “afraid [she] was going to get fired” for her
attendance points. Id. at 22.
Second, Mooneyhan cannot show that her work conditions were objectively hostile. In
order to meet this requirement, Mooneyhan must demonstrate that she gave her employer a
reasonable opportunity to correct the problem. Mooneyhan claims that she reported some of the
alleged harassment to Cathy Johnson in person, and that she believed Johnson was to report the

13

comments to Summer Dunker, the Call Center Administrative Assistant. Johnson was employed
as a Lead, the same position as Lawrence and Edsall. Johnson denies ever receiving a report of
sexual harassment from Mooneyhan. (Doc. 28-13 at 9-11.) Johnson indicated that, if she had
received such a report, she would have immediately reported it to Whitehead, Hargrove, or the
HR Department. Id. at 15. Regardless, Johnson was not a “supervisor in charge” as designated
by the NewWave anti-harassment policy to receive sexual harassment complaints.
Mooneyhan admits that she never reported the alleged sexual harassment to Whitehead,
Hargrove, or HR. She claims that she attempted to discuss the matter with Whitehead in person
on two different occasions, but each time Whitehead indicated he did not have time to talk to her.
Specifically, Mooneyhan states that she approached Whitehead when he was leaving the office to
play golf; and on a subsequent occasion, she approached Whitehead when he had stopped in the
office briefly when he was not scheduled to work. Id. at 36-37. Mooneyhan claims that, in each
instance, she stated to Whitehead “Can I ask you a question?” and Whitehead indicated he did
not have time to answer questions. Id. Mooneyhan testified that she never had the opportunity
to tell him that her questions pertained to allegations of sexual harassment. Id. Whitehead
testified that he did not recall either of these encounters with Mooneyhan. (Doc. 28-12 at 20.) It
is undisputed, however, that Mooneyhan ultimately never informed Whitehead of the subject of
her inquiry during these in-person encounters. She made no additional efforts to contact
Whitehead by email, or any other means, to report her allegations.
Mooneyhan also claims that she reported an instance of harassment to David Norton. At
the time, Norton was employed by NewWave as an Employee Development Specialist. Norton
denied ever receiving a complaint of harassment from Mooneyhan. (Doc. 28-14 at 6.) In any
event, Norton was not a “supervisor” to which complaints of harassment were to be directed

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under NewWave’s anti-harassment policy. Norton testified that he would “occasionally” sit in
on an interview and give input, but was “never given the authority to absolute hire or anything
like that.” (Doc. 31-4 at 17-18.)
The first time Mooneyhan reported the conduct to the HR Department was when she
called Staci Gowan on July 8, 2014, after her resignation. In addition to accusations of sexual
harassment by Edsall, Mooneyhan complained about various actions of her co-workers that were
rather innocuous and not of a sexual nature (i.e., other staff members: using cuss words, wearing
saggy pants, and using a cell phone at their desk), and complained of the NewWave attendance
policy. Mooneyhan did not previously report the physical conduct of which she now complains
to the HR Department. The record shows that Mooneyhan’s allegations have progressively
grown in number and extent, from the time she first reported misconduct to Gowan to the filing
of her Charge of Discrimination, and then from the Charge of Discrimination to the filing of the
instant action. Although Gowan requested that Mooneyhan provide a written statement of her
complaints of harassment, Mooneyhan declined, noting that she could no longer speak to anyone
without her attorney present.
Mooneyhan’s deposition testimony conclusively establishes that she did not give
NewWave a reasonable opportunity to correct the problem:
Q: And the handbook policy says, if you are not satisfied with the response when you go
to a supervisor, come to HR, right?
A: Right.
Q: And you didn’t do that?
A: Yes. I didn’t feel the need to do that because [Johnson] was supposed to take care of
it for me.
Q: Except she didn’t take care of it for you. You weren’t satisfied with any response that
had been done. Assuming that she had done something and Zeth was told to knock it off,
it wouldn’t have been satisfactory because he kept doing it, right?
A: Right.
Q: In fairness?
A: He did keep doing it, yes.

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Q:
A:
Q:
A:
Q:
A:

So you weren’t satisfied with whatever had been done with the first complaint, right?
Right.
And the policy said if you’re not satisfied, go to HR, right?
That’s true.
And you didn’t do that, did you?
I did not.

(Doc. 28-3 at 39.)
Mooneyhan’s claim that she was forced to resign her employment because she had
repeatedly attempted to report the harassment to NewWave employees unsuccessfully lacks
merit. Mooneyhan frequently communicated with NewWave management, including Whitehead
and Hargrove, on issues as minor as scheduling changes. Despite Mooneyhan’s demonstrated
ability to communicate by email with appropriate NewWave management, not once did she send
an email to the same individuals reporting the alleged harassment. Significantly, even when
Mooneyhan finally reported the harassment to Gowan, her allegations were not nearly as
extensive as they are in the instant action. The fact that Mooneyhan called Gowan to report the
harassment the day after she resigned illustrates that she knew the proper channels to report
sexual harassment pursuant to NewWave policy, however, chose not to avail herself of them
until after her resignation.
Mooneyhan has not met her significant burden of producing evidence demonstrating
constructive discharge. See Fercello v. County of Ramsey, 612 F.3d 1069, 1083 (8th Cir. 2010)
(“[t]he bar to relief, however, is high” for constructive discharge (citing O’Brien, 532 F.3d at
810-11). Even assuming Mooneyhan’s allegations of misconduct are true and the misconduct
was sufficiently egregious, there is no evidence that NewWave intended Mooneyhan to resign or
that Mooneyhan gave NewWave the opportunity to correct the problem. See Trierweiler, 639
F.3d at 461 (“We have consistently recognized that an employee is not constructively discharged

16

if she ‘quits without giving [her] employer a reasonable chance to work out a problem.’”)
(alteration in original) (quoting Brenneman, 507 F.3d at 1144).
Thus, NewWave is entitled to judgment as a matter of law on Mooneyhan’s constructive
discharge claim.
B.

Hostile Work Environment

A hostile work environment claim can exist even absent a constructive discharge. See
Winspear v. Community Development, Inc., 574 F.3d 604, 607 (8th Cir. 2009). NewWave
argues that it is entitled to judgment as a matter of law on Mooneyhan’s hostile work
environment claim because Mooneyhan cannot prove thyepe fourth or fifth elements that are
required. The fourth element requires that the harassment affected a term, condition, or privilege
of employment, and the fifth element requires that NewWave knew or should have known about
the harassment and failed to take proper remedial action. Jenkins, 540 F.3d at 748, citing Anda,
517 F.3d at 531. Specifically, NewWave contends that Mooneyhan’s behavior establishes that
her co-workers’ conduct was not sufficiently severe or pervasive as to alter the terms or
conditions of her employment. NewWave further argues that Mooneyhan cannot establish that
NewWave management knew or should have known of the alleged harassment and failed to take
remedial action. In addition, NewWave argues that it is entitled to judgment as a matter of law
on the basis of the Faragher-Ellerth affirmative defense.
The Court will assume, as the parties do, that Mooneyhan has satisfied the first three
elements of a hostile work environment claim and focus on the fourth and fifth elements. If a
plaintiff demonstrates harassment by a supervisor sufficient to satisfy the prima facie case of
hostile work environment, the employer is vicariously liable for the harassment unless it can
establish the affirmative defense set forth in Faragher v. Boca Raton, 524 U.S. 775 (1998), and

17

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). When no tangible employment action is
taken, an employer can raise the affirmative defense, which requires proof by a preponderance of
the evidence (1) that the employer exercised reasonable care to prevent and correct promptly any
harassing behavior, and (2) that the plaintiff employee unreasonably failed to take advantage of
any preventative or corrective opportunities provided by the employer to avoid harm otherwise.
See Faragher, 524 U.S. at 807. For the reasons discussed below, the Court finds that
Mooneyhan has not established a hostile work environment.
1.

Status of Alleged Harassers

As an initial matter, the Court must determine if Mooneyhan’s alleged harassers were
supervisors or mere co-workers. The question is important because “[u]nder Title VII, an
employer’s liability for such harassment may depend on the status of the harasser.” Vance, 133
S.Ct. at 2439. “For supervisor harassment, [a plaintiff] must prove only the first four elements to
establish a prima facie case. If a prima facie case is shown, the employer is vicariously liable
unless it demonstrates that it is entitled to the Ellerth–Faragher affirmative defense.” Jenkins,
540 F.3d at 748-49.
The United States Supreme Court held that “an employer may be vicariously liable for an
employee’s unlawful harassment only when the employer has empowered that employee to take
tangible employment actions against the victim, i.e., to effect a significant change in employment
status, such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.” Vance, 133 S.Ct. at 2443
(internal quotation marks and citation omitted). “The ability to direct another employee’s tasks
is simply not sufficient.” Id. at 2448. The Court thus turns to an examination of the facts of this

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case, to determine whether Mooneyhan’s alleged harassers possessed the power to take tangible
employment actions against Mooneyhan.
The primary individuals accused of harassment—Lawrence and Edsall6—were “Leads.”
Mooneyhan argues that Leads were supervisors because they had authority to assist with hiring,
and to discipline employees with regard to attendance issues.
NewWave describes Leads as call center agents with more experience and expertise than
entry-level associates, who are paid an hourly wage and are compensated at a slightly higher rate
than new associates. They help answer new associates’ questions and take customer calls that
have escalated. Leads are sometimes informally referred to as “supervisors,” such as when a
customer on the phone asks to “speak with a supervisor.” NewWave argues that Leads had no
authority to hire, fire, promote, transfer, modify benefits, or otherwise alter the terms and
conditions of another employee’s employment with NewWave. Rather, NewWave contends that
all actions of the Leads require approval and direction of Hargrove or Whitehead.
The Court finds that Lawrence and Edsall were not “supervisors” as set out by Vance.7
Lawrence testified that he had no discretion in the imposition of discipline regarding attendance
or the development of a PIP. (Doc. 28-8 at 16-17.) He stated that when the automatic system
indicated that an employee had accrued a certain number of points, he was required to issue a
PIP and verbal warning. Id. Lawrence further testified that he lacked authority to approve shift
changes, and that all schedule changes had to be approved by Hargrove. Id. Similarly, Edsall
testified that “someone higher up than us would determine who needed to be reprimanded and at

6

Although Mooneyhan identifies other alleged harassers—some by name, others just generally as
“other male employees”—she does not claim any of these individuals were supervisors other
than Lawrence and Edsall.
7
As a result, the Court does not reach the issue of whether NewWave is entitled to the
Faragher/Ellerth affirmative defense.

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that point we would fill out a PIP and take that agent outside with another lead and let them
know what they were doing wrong.” (Doc. 28-9 at 6-7.) The undisputed facts show that Leads
lacked the authority to independently alter the terms and conditions of another employee’s
employment with NewWave. See Humphrey v. Dresser-Rand Co., No. 2:12CV32JCH,
2013WL4805804, *5 (E.D. Mo. Sept. 9, 2013) (“job site supervisors” were merely co-workers
“because they lacked authority to take tangible employment actions against Plaintiff”).
Although the Court has found Mooneyhan’s alleged harassers were not supervisors, she
may still prevail by showing that NewWave was negligent in failing to prevent harassment from
taking place. Vance, 133 S.Ct. 2453. In other words, Mooneyhan must prove all five elements
of a hostile work environment claim, rather than the first four required to show supervisor
harassment.
2.

Prima Facie Case

The fourth element of a hostile work environment claim involves both objective and
subjective components. Duncan v. General Motors Corp., 300 F.3d 928, 934 (8th Cir. 2002).
The harassment must be “severe or pervasive enough to create an objectively hostile or abusive
work environment” and the victim must subjectively believe her working conditions have been
altered. Harris, 510 U.S. at 21-22. “Conduct that is not severe or pervasive enough to create an
objectively hostile or abusive work environment-an environment that a reasonable person would
find hostile or abusive-is beyond Title VII’s purview.” Duncan, 300 F.3d at 934. “There is no
bright line between sexual harassment and merely unpleasant conduct ....” Hathaway v. Runyon,
132 F.3d 1214, 1221 (8th Cir. 1997). Courts view the “totality of the circumstances” in
determining whether there is a hostile work environment. Klein v. McGowan, 198 F.3d 705, 709
(8th Cir. 1999). Relevant factors in determining whether conduct rises to the level of harassment

20

include the frequency of the behavior, its severity, whether physical threats are involved, and
whether the behavior interferes with plaintiff’s performance on the job. Duncan, 300 F.3d at
934. “The standard is a demanding one, and ‘[s]imple teasing, offhand comments, and isolated
incidents (unless extremely serious)’ will not suffice.” Watson v. CEVA Logistics U.S., Inc., 619
F.3d 936, 942 (8th Cir. 2010) (quoting Arraleh v. Cnty. of Ramsey, 461 F.3d 967, 979 (8th Cir.
2006)).
Mooneyhan argues that the alleged harassing conduct by NewWave employees was
objectively severe and pervasive enough to alter a term, condition, or privilege of employment.
As support, she sets out the following allegations: she was propositioned for sex three times by a
male co-worker, was told that it was a male co-worker’s fantasy to have a threesome with her
and another female employee, a co-worker rubbed her neck, she was cornered in a room and told
rumors of sex were about to start, she had to endure numerous comments about her breasts, a
male colleague used reaching for work equipment as an excuse to touch her legs, a co-worker
bragged about his ability to please a woman with his surgically split tongue, and she was asked
about her pornography-viewing habits. (Doc. 30 at 11.)
The Eighth Circuit has affirmed the grant of summary judgment in favor of the employer
based on the plaintiff’s failure to meet the fourth element of a hostile work environment claim
under similar circumstances. See, e.g. LeGrand v. Area Resources for Community and Human
Servs., 394 F.3d 1098, 1100 (8th Cir. 2005) (harasser’s actions including asking employee to
watch pornographic videos and “jerk off with him,” grabbing employee’s buttocks, reaching for
his genitals, briefly gripping his thigh, and attempting to kiss him “ranged from crass to churlish
and were manifestly inappropriate,” but did not create a hostile work environment” ); Alagna v.
Smithville R-II Sch. Dist., 324 F.3d 975, 977-80 (8th Cir. 2003) (co-worker’s conduct was

21

inappropriate but not sufficiently severe or pervasive where it included calls to the plaintiff’s
home, frequent visits to her office, discussions about relationships with his wife and other
women, touching the plaintiff’s arm, saying he loved her, placing romance novels in her faculty
mailbox, and invading her personal space).
Even if the conduct Mooneyhan describes was severe and pervasive enough to be
actionable, Mooneyhan has not established that she subjectively perceived her work conditions
were abusive. Mooneyhan must establish not only that “the offending conduct created an
objectively hostile work environment [but also] that she subjectively perceived her working
conditions as abusive.” Bowen v. Missouri Dep’t of Soc. Servs., 311 F.3d 878, 883 (8th Cir.
2002) (quoting Williams v. City of Kansas City, 223 F.3d 749, 753 (8th Cir. 2000)).
The undisputed facts reveal that Mooneyhan spoke with Brandon Lawrence about her
then-accumulated attendance points on May 22, 2014. After her discussion with Lawrence, she
emailed Mark Whitehead with a question Lawrence could not answer. (Doc. 28-5 at 2.) She
concluded this email to Whitehead with a smiley-face emoticon. Id. She made no reference to
harassment of any kind in the email to Whitehead. On June 29, 2014, Lawrence and Edsall met
with Mooneyhan to deliver a verbal warning and implement a PIP. Mooneyhan claims that
Lawrence and Edsall made sexual remarks to her during this meeting. Shortly after the meeting,
Mooneyhan sent an email to Whitehead and Treka Hargrove titled “2 weeks [sic] notice,” in
which she expressed her frustrations with the attendance policy and purported to resign her
employment. (Doc. 28-5 at 10.) She remarked in the email, “I do like work,” but indicated that
she would rather end her employment on good terms than get fired for attendance points. Id.
Mooneyhan sent a series of three additional emails, in which she retracted her resignation, stated
“I really do like working here,” and concluded the email with “thanks” and another smiley-face

22

emoticon. (Doc. 28-5 at 10, Doc. 28-7 at 1.) Mooneyhan did not mention the alleged
harassment that had occurred that day during the PIP meeting. On July 3, 2014, Mooneyhan sent
an email to Hargrove and Cathy Johnson regarding a change in her schedule the weekend of the
July 4th holiday. (Doc. 28-5 at 11.) In this email, she thanked them for allowing the switch,
wished them a “happy 4th,” and included a smiley-face emoticon. Id.
Mooneyhan’s communications with NewWave management undermine her claim that
she subjectively believed that her working conditions were abusive. Mooneyhan regularly
communicated with NewWave management over minor issues during the same time she now
alleges she was subjected to abusive harassment, yet she never mentioned the alleged
harassment. Instead, Mooneyhan specifically stated in emails to NewWave management that she
liked her job, and concluded the emails with smiley-face emoticons. When considering the time
period in which these communications were sent, they are inconsistent with Mooneyhan’s
subjective belief that she was experiencing abuse forcing her to quit. Woodland v. Joseph T.
Ryerson & Son, Inc., 302 F.3d 839, 844 (8th Cir. 2002) (affirming summary judgment for the
employer, and holding that plaintiff’s decision not to report many of the complained-of incidents
and evidence that he declined his manager’s offer to fire the offending co-worker was “strong
evidence that, while offensive, these incidents did not subjectively affect the conditions” of
plaintiff’s employment”). Viewing the totality of the circumstances, no reasonable juror could
believe that the alleged harassment was so subjectively severe or pervasive as to rise to the level
of an actionable hostile work environment.
Even assuming Mooneyhan can establish the first four elements of the prima facie case,
she presents no evidence to demonstrate the fifth element: That NewWave knew or should have
known of the alleged harassment prior to July 8, 2014 and failed to take remedial action. As the

23

Court stated in Vance, “[e]vidence that an employer did not monitor the workplace, failed to
respond to complaints, failed to provide a system for registering complaints, or effectively
discouraged complaints from being filed would be relevant.” 133 S.Ct. at 2453.
“[W]here an employer has a complaint procedure delineating the individuals to whom
notice of harassment must be given,” actual notice is established when the employee notifies
those individuals. Weger v. City of Ladue, 500 F.3d 710, 721 (8th Cir. 2007) (citation omitted).
“‘Constructive notice, on the other hand, is established when the harassment was so severe and
pervasive that management reasonably should have known of it.’” Id. (citing Watson v. Blue
Circle, Inc., 324 F.3d 1252, 1259 (11th Cir. 2003)).
Mooneyhan does not dispute that NewWave has an anti-harassment policy setting out the
procedure to report harassment, and that she signed the policy when she started her employment.
Mooneyhan did not report the alleged harassment to Whitehead or Hargrove, the individuals
designated under the policy to receive complaints of sexual harassment. She never sent an email
to any NewWave employee complaining about sexual harassment. Mooneyhan did not contact
Gowan or any other HR representative with a complaint of sexual harassment before July 8,
2014. Because the record is devoid of any indication that Mooneyhan invoked NewWave’s
harassment complaint procedure prior to her resignation, NewWave did not have actual notice of
the alleged harassment until July 8, 2014.
Mooneyhan, citing Sandoval v. American Bldg. Maint. Indust., Inc., 578 F.3d 787, 802
(8th Cir. 2009), argues that knowledge of the alleged sexual harassment can be imputed to
NewWave because Mooneyhan reported some instances of harassment to Cathy Johnson. She
contends that Johnson was someone who could “reasonably be expected to report or refer a
complaint to someone who can put an end to” the alleged harassment. Id.

24

Mooneyhan’s reliance on Sandoval is misplaced. Sandoval distinguished actual and
constructive notice as follows:
In the context of sexual harassment claims, “[a]ctual notice is established by proof
that management knew of the harassment.” Watson v. Blue Circle, Inc., 324 F.3d 1252,
1259 (11th Cir. 2003) (emphasis added). Whereas, constructive notice “is established
when the harassment was so severe and pervasive that management reasonably should
have known of it.” Id. (emphasis added); see also Martin v. Wal-Mart Stores, Inc., 183
F.3d 770, 772 (8th Cir. 1999) (noting an employer is deemed to have actual notice of a
dangerous condition if an employee created or was aware of the hazard). “Constructive
notice ... is established when the harassment was so severe and pervasive that
management reasonably should have known of it.” Watson, 324 F.3d at 1259. “[A]n
employer may be charged with constructive knowledge of previous sexual harassment ...
if the harassment was so broad in scope, and so permeated the workplace, that it must
have come to the attention of someone authorized to do something about it.” Fall v. Ind.
Univ. Bd. of Tr., 12 F. Supp.2d 870, 882 (N.D. Ind.1998) (emphasis added) (citations
omitted).
[T]here can be constructive notice in two situations: where an employee provides
management level personnel with enough information to raise a probability of sexual
harassment in the mind of a reasonable employer, or where the harassment is so
pervasive and open that a reasonable employer would have had to be aware of it.
...
[T]hese standards strike the correct balance between protecting the rights of the employee
and the employer by faulting the employer for turning a blind eye to overt signs of
harassment but not requiring it to attain a level of omniscience, in the absence of actual
notice....
Kunin v. Sears Roebuck and Co., 175 F.3d 289, 294 (3d Cir. 1999).
578 F.3d at 802. The Sandoval panel reversed the district court’s grant of summary judgment on
the basis that it refused to consider evidence of past sexual harassment claims, id., a factual
consideration that is not present in this case.
Detrimental to Mooneyhan’s argument is the Sandoval panel’s conclusion that the
plaintiff employee’s complaints of harassment to on-site supervisors, who were found to be coemployees, were “insufficient to put [the employer] on notice of the harassment, especially in
light of the extensive anti-harassment policy and procedures it had established, which, when
accessed, ended the harassment.” Id. at 801.

25

Mooneyhan has failed to create a genuine issue of material fact regarding whether
NewWave was negligent in failing to prevent harassment. She presents no evidence to show that
NewWave’s anti-harassment policy was ineffective. Mooneyhan does not dispute that, as soon
as she notified HR of the alleged harassment pursuant to NewWave’s anti-harassment policy,
NewWave conducted a prompt investigation of the claims. Mooneyhan does not allege that she
ever conveyed her allegations of harassment to a supervisor delineated by the policy to receive
sexual harassment complaints prior to July 8, 2014. Her alleged complaints to Johnson and
Norton, non-supervisors, do not constitute constructive notice.
Moreover, Mooneyhan has failed to present evidence for a reasonable jury to conclude
that the alleged harassment “was so broad in scope, and so permeated the workplace, that it must
have come to the attention of someone authorized to do something about it.” Sandoval, 578 F.3d
at 802, citing Fall v. Ind. Univ. Bd. of Tr., 12 F. Supp.2d 870, 882 (N.D. Ind. 1998) (emphasis in
original). Mooneyhan has not introduced testimony from any NewWave employee indicating
that they witnessed any of the alleged instances of harassment. Cf. Delgado v. GGNSC Grand
Island Lakeview LLC, 4:15CV3124, 2017 WL 1533376, * 7 (D. Neb. April 27, 2017) (evidence
sufficient for jury to find harassment was so pervasive as to constitute constructive knowledge
when plaintiff presented testimony from several witnesses who either experienced the alleged
harassment, witnessed it, or heard about it). The one co-victim of sexual harassment
Mooneyhan identifies—Marilynn Deline—denies that the incident involving a remark by Edsall
regarding his sexual fantasy involving Deline, Mooneyhan, and Edsall ever occurred. (Doc. 2815 at 8.) In fact, Deline testified that she did not even work on Sundays, the day on which
Mooneyhan claimed the incident occurred. Id. at 9.

26

In sum, Mooneyhan has not established a prima facie case of hostile work environment.
In so finding, the Court does not condone the alleged behavior of Lawrence and Edsall, and the
other unidentified males. Because Mooneyhan did not report this conduct to the designated
supervisor or HR official prior to her resignation, there is no evidence that NewWave should
have known about the alleged co-worker harassment. Consequently, NewWave cannot be liable
for the alleged hostile work environment as a matter of law; and judgment will be entered in
favor of NewWave on this claim.
V.

Defendant’s Motion to Strike
Also pending before the Court is Defendant’s Motion to Strike/Bar Plaintiff’s Amended

Rule26(a) Initial Disclosures, Amended Answers to Interrogatories, and Identification of Mr.
Walter Johnston, FNP. (Doc. 21.) In this Motion, NewWave states that Mooneyhan submitted
Amended Rule26(a) Initial Disclosures and Amended Answers to Interrogatories approximately
three weeks after the discovery deadline, in which she identifies: two new witnesses, additional
information from disclosed witnesses, and new allegations from Mooneyhan inconsistent with
her deposition testimony. NewWave requests that the Court strike this evidence and bar any
evidence not disclosed prior to the discovery deadline. NewWave further argues that
Mooneyhan should be precluded from submitting medical expenses as an element of her
damages.
Mooneyhan did not rely on any of the new evidence at issue in her Response to
Defendant’s Motion for Summary Judgment. In light of the Court’s granting of Defendant’s
Motion for Summary Judgment, Defendant’s Motion to Strike will be denied as moot.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment

27

(Doc. 26) is granted. A separate Judgment in favor of Defendant will accompany this
Memorandum and Order.
IT IS FURTHER ORDERED that Defendant’s Motion to Strike/Bar Plaintiff’s
Amended Rule26(a) Initial Disclosures, Amended Answers to Interrogatories, and Identification
of Mr. Walter Johnston, FNP (Doc. 21) is denied as moot.

/s/ Abbie Crites-Leoni
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE
Dated this 15th day of November, 2017.

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