Fabian v. The St. Louis Rams Partnership et al

Filing 66

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment 47 is GRANTED in part and DENIED in part as follows:Defendants' motion as to Count I is DENIED; Defendants' motion as to Counts II, III and IV i s GRANTED. An appropriate Judgment will accompany this Memorandum and Order. IT IS FURTHER ORDERED that Defendants' Motion to Strike Plaintiff's Statement of Uncontroverted Material Facts 63 is DENIED. Signed by District Judge John A. Ross on 1/21/14. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

LORY FABIAN,
Plaintiff,
v.
THE ST. LOUIS RAMS PARTNERSHIP,
et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

No. 4:12-CV-1112-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion for Summary Judgment. (Doc.
No. 47) The motion is fully briefed and ready for disposition. For the following reasons,
Defendants’ motion for summary judgment will be granted in part and denied in part.
As a threshold matter, Defendants move to strike Plaintiff’s Statement of Uncontroverted
Material Facts on the grounds that Local Rule 7-4.01 does not permit such a filing. (Doc. No. 63)
Defendants contend Plaintiff is required to submit a statement of material facts as to which she
contends a genuine issue exists and yet she has filed a statement of facts as to which she
contends a genuine issue does not exist.
Motions to strike are not favored and infrequently granted, because they propose a drastic
remedy. Stanbury Law Firm, P.A. v. Internal Revenue Service, 221 F.3d 1059, 1063 (8th Cir.
2000). Nonetheless, resolution of such a motion lies within the broad discretion of the Court. Id.
Federal Rule of Civil Procedure 12(f) authorizes a court to strike from a pleading any
“redundant, immaterial, impertinent, or scandalous matter.” A “pleading” as defined in

Fed.R.Civ.P. 7(a) does not include statements of fact submitted in support of, or in opposition to,
a motion for summary judgment. Thus, there is no specific authority in the Federal Rules for
striking a party's statement of uncontroverted facts. See Nelson v. Special Administrative Bd. of
St. Louis Public Schools, 2012 WL 5508394, at *1-2 (E.D. Mo. Nov. 14, 2012) (citing United
States v. Hawley, 812 F.Supp.2d 949, 962 n. 2 (N.D.Iowa 2011) (denying a motion to strike a
statement of material facts offered in opposition to a motion for summary judgment)).
The Local Rules of this District do, however, permit the striking of filings which fail to
comply with their requirements. Id. Local Rule 7–4.01(E) provides with respect to summary
judgment motions:
A memorandum in support of a motion for summary judgment shall have attached a
statement of uncontroverted material facts, set forth in a separately numbered paragraph
for each fact, indicating whether each fact is established by the record, and, if so, the
appropriate citations. Every memorandum in opposition shall include a statement of
material facts as to which the party contends a genuine dispute exists. Those matters in
dispute shall be set forth with specific references to portions of the record, where
available, upon which the opposing party relies. The opposing party also shall note for all
disputed facts the paragraph number from movant's listing of facts . . .
E.D. Mo. L.R. 4.01(E). The Court finds nothing in the Rule to prohibit Plaintiff from submitting
the statement of facts that she did. The Court determines that Plaintiff was attempting to
demonstrate her belief that there are genuine issues of material fact for trial. See Shepard v.
Courtoise, 115 F.Supp.2d 1142, 1145 (E.D. Mo. 2000). Defendants’ motion to strike will be
denied. The Court will examine the entire record, including Plaintiff’s statement of
uncontroverted facts and any properly supported factual contentions in opposition, to determine
whether there are genuine disputes regarding material facts precluding the entry of summary
judgment.
Background
Plaintiff Lory Fabian was employed by Defendant St. Louis Rams Partnership (“the

-2-

Rams”) from 1995 to 2011. She held several jobs during her tenure with the Rams, including
Coaching Secretary, Executive Assistant to Public Relations Director, and Alumni Relations
Coordinator. Plaintiff alleges she is one of several Rams employees over the age of forty (40)
who were either fired, laid off, forced to retire, or terminated between 2008 and 2011 and
replaced by younger employees. (Compl., ¶ 18)
According to Plaintiff, after Rams owner Georgia Frontiere died in 2008, the Rams
started to push out its older employees. Rams’ management often described “changing the
culture” of the organization by bringing in “young inexpensive grinders” who could handle the
long hours of NFL employment, and commented that they would “like to get rid of all the middle
aged women” working for the organization.
Concerned she would lose her job, Plaintiff met with Rams President John Shaw in April
2008. Following that meeting, Shaw arranged to provide Plaintiff with an employment
agreement to protect her job until she reached age 55 on June 14, 2011. The agreement provided
for a term of employment from January 1, 2010 through June 30, 2011, thereby ensuring that
Plaintiff would qualify for the NFL JC-1 benefit guaranteeing her health insurance through the
Rams until age 65. (Doc. No. 48-3) It is undisputed that Plaintiff was told this agreement was her
severance. (Deposition of Lory Fabian (“Fabian Depo.”), Doc. No. 48-2, 113:20-23)
On or about April 2009, Plaintiff was moved out of Public Relations/Media and into the
newly created position of Alumni Coordinator. Her responsibilities included, but were not
limited to, coordinating the Rams’ relationships with alumni, setting up personal events with
Rams’ alumni, and managing all other alumni related activities or tasks. Plaintiff reported to
Rams Vice President of Corporate Communication, Molly Higgins and Rams Executive Vice
President, Kevin Demoff. Plaintiff characterizes this move as setting her up for failure. She was

-3-

not given a budget or cell phone allowance, and did not have an office in which to meet with
Rams alumni. Plaintiff claims she was intentionally excluded from staff meetings and from Rams
events and activities – all in an effort to systematically shut her out and force her to quit her job.
(Compl., ¶ 26) Plaintiff alleges Kevin Demoff told her that “no one in the building liked her” and
that she was “too old for her job.” (Compl., ¶ 25) In September 2010, some of her job duties and
responsibilities were reassigned to Kyle Eversgard, age 24.
In addition, Plaintiff claims she was subjected to sexual harassment and discrimination by
Bob Reif, Rams Executive Vice President/Marketing and Sales/Chief Marketing Officer.1
Plaintiff alleges Reif made inappropriate comments and jokes and touched her in an unwelcome
and intimidating manner by massaging her shoulders, pressing the front of his body up against
her backside, and putting his arms around her. (Compl., ¶¶ 38-42) Plaintiff reported Reif’s
conduct to Rams management; however, no corrective action was taken. (Compl., ¶ 46) She
points out the Rams did not have a Human Resources Department to address such complaints.
On May 20, 2011, Demoff informed Plaintiff that her employment agreement would not
be renewed, and that her services were no longer required. He informed Plaintiff that the Alumni
Program was not working and that the position of Alumni Coordinator was going to be
eliminated. (Deposition of Kevin Demoff (“Demoff Depo.”), Doc. 60-1, 85:3-16) Plaintiff was
paid her salary and other benefits as a Rams employee through June 30, 2011, and did in fact
qualify for the NFL JC-1 health insurance benefit.
On or about July 15, 2011, Plaintiff filed a dual charge of discrimination with the
Missouri Human Rights Commission and the Equal Employment Opportunities Commission
(EEOC). On or about March 22, 2012, Plaintiff was mailed her right-to-sue notice pursuant to Title

1

Reif is not a party to this action.
-4-

VII. On June 20, 2012, she filed this action alleging age discrimination in violation of the ADEA,

29 U.S.C. § 263(A)(1) & (2) (Count I), sexual discrimination, harassment and hostile work
environment (Count II) and retaliation (Count III) in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C, §§ 2000e, et seq., and battery (Count IV).
Legal Standard
Summary judgment is appropriate when no genuine issue of material fact exists in the
case and the movant is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986). The initial burden is placed on the moving party. City of Mt. Pleasant,
Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988).

If the record

demonstrates that no genuine issue of fact is in dispute, the burden then shifts to the non-moving
party, who must set forth affirmative evidence and specific facts showing a genuine dispute on
that issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In determining whether
summary judgment is appropriate in a particular case, 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. The Court is required to resolve all conflicts of
evidence in favor of the nonmoving party. Osborn v. E.F. Hutton & Co., Inc., 853 F.2d 616, 619
(8th Cir. 1988). The Eighth Circuit has cautioned that “summary judgment seldom should be
used in employment discrimination cases, because such cases are inherently fact-based and often
depend on inferences rather than on direct evidence.” Wierman v. Casey’s General Stores, 638
F.3d 984, 1002 (8th Cir. 2011).
Discussion
Age discrimination
The ADEA makes it “unlawful for an employer ... to discharge any individual or

-5-

otherwise discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. §
623(a)(1). Persons age forty and over are protected by the ADEA. 29 U.S.C. § 631. Plaintiff can
meet her burden of establishing intentional discrimination by presenting either direct or, more
likely, indirect evidence of employment discrimination based on age. Madel v. FCI Marketing,
Inc., 116 F.3d 1247, 1251 (8th Cir. 1997) (citing Rothmeier v. Investment Advisers, Inc., 85 F.3d
1328, 1332–33 (8th Cir.1996)). In cases dealing with indirect evidence of discrimination, courts
apply the burden shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973).2 Madel, 116 F.3d at 1251 (citing Holley v. Sanyo Mfg. Inc., 771 F.2d 1161, 1164 (8th
Cir.1985)).
Under the McDonnell Douglas analysis, the plaintiff has the initial burden of establishing
a prima facie case by showing she was within the protected age group, met applicable job
qualifications, was discharged, and that her position was filled by a younger individual.
McDonnell Douglas, 411 U.S. at 802. If the plaintiff makes a prima facie showing, thus raising
an inference of discrimination, the burden shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for the plaintiff's discharge. Id. If the defendant meets this burden, the
plaintiff must prove that the defendant’s reason is merely a pretext for discrimination. Id. at 804.
In support of its motion, Defendant contends Plaintiff cannot make a prima facie case of
age discrimination because she lacks competent direct evidence that the Rams’ decision not to
renew her employment agreement was improperly motivated by her age. (Mem. in Supp., Doc.
2

The McDonnell Douglas test originated in the Title VII context, but has been applied to claims
brought under the ADEA. O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, ––––,
116 S.Ct. 1307, 1310, 134 L.Ed.2d 433 (1996). See also, Bashara v. Black Hills Corp., 26 F.3d
820, 823 (8th Cir.1994); Brown v. McDonnell Douglas Corp., 936 F.Supp. 665, 670 (E.D. Mo.
1996) (and cases cited therein).

-6-

No. 49, pp. 5-7) Alternatively, Defendant argues that Plaintiff’s claim fails because she was
terminated for legitimate nondiscriminatory reasons, i.e., poor performance and misconduct, and
cannot show pretext. (Id., pp. 7-9)
Plaintiff responds that Kevin Demhoff’s comments - that she was not a “good fit” for the
new position, that she “was too old for her job,” and that they wanted “young, inexpensive
grinders”- creates an inference of age discrimination, citing Fisher v Pharmacia & Upjohn, 225
F.3d 915, 922 (8th Cir. 2000); Fast v. Southern Union Co., Inc., 149 F.3d 885, 890-92 (8th Cir.
1998); EEOC v. Liberal R-II School District, 314 F.3d 920, 924-25 (8th Cir. 2002); and Beshears
v. Communications Services, Inc., 930 F.2d 1348, 1354 (8th Cir. 1991). (Mem. in Opp., Doc. No.
57, pp. 5-7) Plaintiff notes that prior to Demoff’s tenure as Chief Operating Officer, the Rams
have no documented complaints regarding her job performance or conduct. She contends the
Rams failed to follow their own policies regarding performance reviews, and that she received
only two reviews during her tenure, both conducted after she was in the position of Alumni
Relations Coordinator and after she sought an employment agreement to protect her job. This
according to Plaintiff makes the Rams’ reliance on her performance reviews suspect. (Id., p. 9)
Finally, as evidence of a pattern of age discrimination, Plaintiff submits affidavits from
former employees over the age of 40 who were replaced with younger employees to “change the
culture” of the organization, including Terry Fenwick, Ray Ogas, Pamela Benoist, and Chuck
Faucette. (Id., pp. 10-11) These individuals state that the Rams alienated its older employees by
“creating an atmosphere that older employees were no longer wanted;” “terminating many of the
older employees that were good and loyal employees;” “replacing many of the older employees
that were over the age of 40 with younger employees;” and “transferring many of the older
employees’ job duties and responsibilities, while they were still working for the Rams, to

-7-

younger employees.” (Affidavit of Terri Fenwick (“Fenwick Aff.”), Doc. No. 60-3), Affidavit of
Ray Ogas (“Ogas Aff.”), Doc. No. 60-4), Pam Benoist (Affidavit of Pam Benoist (“Benoist
Aff.”), Doc. No. 60-5), and Chuck Faucette (Affidavit of Chuck Faucette (“Faucette Aff.”), Doc.
No. 60-6) Plaintiff points to eighteen former employees she alleges were forced out after 2008
and replaced by younger employees.3 (Doc. No. 59-2)
In reply, the Rams argue that Plaintiff’s witness affidavits fail to “set out facts that would
be admissible in evidence” under Rule 56 and should be disregarded by the Court, if not
stricken.4 (Reply, Doc. No. 62, pp. 2-5) Even with the affidavits, however, the Rams argue
Plaintiff is unable to make a prima facie case (id., pp. 8-9), or show that the reasons for not
giving her another agreement were pretextual. (Id., pp. 5, 9-13) In particular, the Rams note that
of the eighteen allegedly “similarly situated” employees who left the Rams between 2008 and
2011, only twelve were terminated or had contracts that were not renewed; the remaining eight
retired or resigned voluntarily. (Id., p. 6) During that same period, the Rams terminated or did
not renew contracts of twelve employees under the age of 40. (Affidavit of Kevin Demoff
(“Demoff Aff.”), Doc. No. 62-5, ¶¶ 3, 4) The Rams concede it was lax in conducting
performance reviews of its employees prior to 2008, but that this had nothing to do with age.
(Id., p. 15) Finally, Defendant maintains that Plaintiff’s poor performance and misconduct

3

Excluding Plaintiff, these employees are: John A. Oswald, Robert E. Wallace, Jr., Jay A.
Zygmunt, Giles J. Dowden, Carol L. Kovac, Daniel B. Linza, Jill M. Hahn, Jon E. Kruse, Janice
W. Pipp, Pamela R. Benoist, C. Thomas Guthrie, Jr., Linda Rose, Terri L. (Harding) Fenwick,
Todd Hewitt, Ray R. Ogas, Terrence Brown, and Rosalind Oglesby.
4

There is no formal motion to strike before the Court; however, such a motion is not necessary,
since the Court has the inherent power to disregard affidavits or portions thereof that violate the
standard of Fed.R.Civ.P. 56. The Court must consider only admissible evidence and disregard
portions of the affidavits made without personal knowledge, consisting of hearsay, or purporting
to state legal conclusions as fact. See Shaver v. Independent Stave Co., 350 F.3d 716, 723 (8th
Cir.2003); Woods v. Wills, 400 F.Supp.2d 1145, 1175-76 (E.D.Mo. 2005); Fed.R.Civ.P. 56(e).
-8-

justified its decision not to renew her employment contract.
The ultimate issue on a motion for summary judgment in an ADEA case is “whether the
evidence is sufficient to create a genuine issue of fact as to whether the employer intentionally
discriminated against the plaintiff because of the plaintiff’s age.” Madel, 116 F.3d at 1251-52
(quoting Rothmeier, 85 F.3d at 1337). Despite Defendant’s argument that Plaintiff was not
performing at a level that met expectations, the evidence, viewed in a light most favorable to
Plaintiff, establishes at least a factual issue as to her prima facie case. In particular, Demhoff
testified that in her first year as Alumni Coordinator, Plaintiff managed to have an alumni
presence at every game, which he described as “the bare minimum of success” for the program.
(Demhoff Depo., 98:10-100:16)
To meet its burden of rebutting Plaintiff’s prima facie case, Defendant articulates
numerous non-discriminatory reasons for not renewing her contract, including her poor
performance reviews, absenteeism, and hostility towards coworkers and superiors. (Defendants’
Statement of Uncontroverted Material Facts (“SOF”), Doc. No. 48, ¶ 9, 11-19, 21-29, 39-41)
Plaintiff has presented evidence in response to Defendant’s justifications from which a
jury could conclude that age was a determinative factor in the decision not to renew her
agreement, and specifically Demhoff’s age-related comments. Evidence of a corporate
atmosphere hostile to older employees “can, if sufficient together with other evidence of pretext,
support a reasonable inference of age discrimination.” Madel, 116 F.3d at 1252. In particular,
age-based comments such as Demhoff’s can constitute evidence of discriminatory intent. Id.
(evidence that plaintiffs were regularly subjected to discriminatory epithets such as “old fucker,”
“old fart,” and “geriatric set,” considered with evidence presented to rebut defendant’s proffered
reasons for firing plaintiffs, created a factual issue regarding the true motivation for the

-9-

terminations); Ryther v. KARE 11, 108 F.3d 832, 842-43 (8th Cir. 1997) (co-employees’
statements that plaintiff was an “old fart,” “old man,” and “too old to be on the air,” with other
evidence, raised an inference of discrimination); Williams v. Valentec Kisco, Inc., 964 F.2d 723,
728 (8th Cir.1992) (comment about “old man carrying the boxes” could be considered direct
evidence of discriminatory intent, and provided an independent basis to support the jury's finding
of pretext); Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir.1991) (direct evidence of
discrimination can include employer's remarks reflecting discriminatory attitude); Perry v. Kunz,
878 F.2d 1056, 1061 (8th Cir.1989) (decisionmaker's comment to another employee that she
chose plaintiff for termination because plaintiff would not retire was evidence of discrimination).
Defendant attempts to explain away these statements, arguing for example that Demhoff
believed Plaintiff would not be a “good fit” based on her reviews and performance; however, it is
for the fact finder to determine what was intended by the statements.
In addition, Plaintiff submits that a number of other older employees were terminated
between 2008 and 2011. A demonstrated pattern of preference for younger employees can help
prove discriminatory intent. Holley, 771 F.2d at 1166. With respect to Plaintiff’s affidavits, the
statements therein are not in themselves conclusive evidence of age discrimination. Nonetheless,
the statements, taken with other evidence of pretext (such as a “trend” toward younger
employees) and the elements of the prima facie case, support a reasonable inference of age
discrimination. See Ryther, 108 F.3d at 844.
In sum, Plaintiff has satisfied her burden of presenting sufficient evidence to create a
genuine issue of material fact as to whether the Rams intentionally discriminated against her
because of her age. Plaintiff has created a fact issue as to whether the Rams’ proffered reasons
are pretextual, and Demhoff’s age-based comments, together with a pattern of preference for

- 10 -

younger employees, create a reasonable inference that age was a determinative factor in the
decision not to renew Plaintiff’s employment agreement. Thus, Defendants’ motion for summary
judgment on Count I will be denied.
Plaintiff has not responded to Defendant’s motion with respect to her claims for sexual

discrimination, retaliation or battery. Therefore, the Court finds Plaintiff has abandoned these
claims. See Semi-Materials Co., Ltd. v MEMC Electronic Materials, Inc., 2011 WL 134078, at
*4 (E.D. Mo. Jan. 10, 2011) (court construed plaintiff’s failure to respond to argument raised in
motion to exclude as abandonment of intent to introduce opinion). See also Culkin v. Walgreen
Co., 2006 WL 839195, at *1 (E.D.Mo. Mar. 27, 2006) (court assumed plaintiff abandoned claims
not addressed in opposition to defendant's motion to dismiss); United States v. NHC Health Care
Corp., 163 F.Supp.2d 1051, 1058-59 (W.D.Mo.2001) (court assumed plaintiff abandoned claims
not addressed in opposition to defendant's motion for summary judgment). Even if Plaintiff’s
claims were not abandoned, however, they would fail on the merits, as discussed below.
Sexual discrimination, harassment and hostile work environment
With respect to Plaintiff’s claim for sexual discrimination, Defendants argue she does not
allege that sex was a motivating factor in the decision not to renew her contract. Instead, her
claim is focused on harassment and unwanted physical contacts. (Mem. in Supp., Doc. No. 49, p.
10)
“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); 42 U.S.C. § 2000e-2(a). “Discrimination based on sex that creates a hostile
or abusive working environment violates Title VII.” Jenkins, 540 F.3d at 748. A hostile work
environment arises when sexual misconduct has the purpose or effect of unreasonably interfering
with a person’s job performance or creating “an intimidating, hostile, or offensive work
- 11 -

environment.” Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65-66 (1986) (quoting 29
C.F.R. 1604.11(a)(3)).
To state a prima facie case of hostile work environment based on sexual harassment,
Plaintiff must prove that: (1) she is a member of a protected group, (2) she was subjected to
unwelcome sexual harassment, (3) the harassment was based on sex, and (4) the harassment
affected a term, condition, or privilege of her employment. LeGrand v. Area Resources for
Community and Human Services, 394 F.3d 1098, 1101 (8th Cir. 2005). See also, Jenkins, 540
F.3d at 748-49. To determine whether a work environment is hostile and abusive, the Court
examines the totality of the circumstances, including the frequency of the discriminatory
conduct, its severity, whether it is physically threatening or humiliating, or mere offensive
utterance, and whether it unreasonably interferes with an employee’s job performance. Cross v.
Prairie Meadows Racetrack & Casino, Inc., 615 F.3d 977, 981 (8th Cir. 2010). See also Baker v.
John Morrell & Co., 382 F.3d 816, 828 (8th Cir. 2004).
According to Plaintiff, Reif put his arm around her on a couple of occasions, “maybe
five,” (Fabian Depo., 195:13-18; 196:16-19), and massaged her shoulders “a few times.” (Id.,
196:20-24; 198:7-10) Plaintiff testified she did not believe Reif was suggesting anything sexual
by touching her on her shoulders. (Id., 196:2-5; 198:14-15) Moreover, she never told him to stop
or reported his conduct to the Rams. (Id., 197:25-198:6; 200:4-7; 201:17-20; 202:9-12) Plaintiff
also complained that Reif told jokes she felt were “off-color.” (Id., 198:16-18)
“Hostile work environment claims are limited in nature, requiring a high evidentiary
showing that the plaintiff’s workplace is permeated with discriminatory intimidation, ridicule,
and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” Vajdl v. Mesabi Academy of

- 12 -

Kidspeace, Inc., 484 F.3d 546, 550 (8th Cir. 2007) (citations omitted). The Eighth Circuit has
found summary judgment proper in numerous cases due to the plaintiff’s failure to show the
harassing conduct was “sufficiently severe or pervasive so as to alter the conditions of
employment.” See, e.g., Duncan v. General Motors Corp., 300 F.3d 928, 933-34 (8th Cir. 2002)
(proposition for “relationship,” touching of plaintiff’s hand, and creation of “Man Hater’s Club”
poster not actionable); Tuggle v. Mangan, 348 F.3d 714, 722 (8th Cir. 2003) (comments based on
plaintiff’s sex and the posting of a photograph of plaintiff’s “clothed rear end” is not actionable);
Ottman v. City of Independence, 341 F.3d 751, 760 (8th Cir. 2003) (belittling and sexist remarks
on almost a daily basis are not actionable conduct); Meriwether v. Caraustar Packaging Co., 326
F.3d 990, 993 (8th Cir. 2003) (grabbing plaintiff’s buttock and confronting her about it the
following day did not rise to actionable conduct); Alagna v. Smithville R-II Sch. Dist., 324 F.3d
975, 977-78 (8th Cir.2003) (a co-worker that called plaintiff’s home, frequently visited her
office, talked about his relationships with women, touched plaintiff’s arm, placed romance
novels in plaintiff’s work mailbox, invaded plaintiff’s personal space, and told plaintiff that he
loved her was found to be inappropriate, but the conduct was not sufficiently severe or
pervasive).
Viewing Plaintiff’s claim in light of these standards, the Court finds there is insufficient
evidence to demonstrate that Reif’s alleged conduct affected a term, condition or privilege of
Plaintiff’s employment. See, LeGrand, 394 F.3d at 1101-02 (“to be actionable the conduct must
be extreme and not merely rude or unpleasant”). Plaintiff testified she did not consider Reif’s
touching to be sexual in nature. (Fabian Depo., 198:14-15) This conduct was not frequent or
physically violent or threating, and did not unreasonably interfere with her work performance. In
addition, Plaintiff chose not to report the conduct about which she now complains. (Fabian

- 13 -

Depo., 193:3-194:3; 200:4-13) This is strong evidence that these incidents did not subjectively
affect the conditions of her employment. As such, the Court finds Reif’s alleged conduct does
not “rise[] to the level of actionable hostile work environment sexual harassment.” See LeGrand,
394 F.3d at 1102. Defendants’ motion for summary judgment on Count II will be granted.
Retaliation
To prevail on a retaliation claim, Plaintiff must demonstrate that: 1) she was engaged in a
protected activity; 2) suffered an adverse employment action; and 3) the adverse action occurred
because she was engaged in the protected activity. 42 U. S. C. § 2000e-3(a). See also Wilkie v.
Department of Health and Human Services, 638 F.3d 944, 955 (8th Cir. 2011) (citing Devin v.
Schwan's Home Serv., Inc., 491 F.3d 778, 785 (8th Cir.2007)). A “protected activity” can be
either opposing an act of discrimination made unlawful by Title VII, or making a charge,
testifying, assisting, or participating in an investigation under Title VII. See Davis v. Jefferson
Hosp. Ass’n, 685 F.3d 675, 684 (8th Cir. 2012).
Defendant contends Plaintiff cannot establish a claim of retaliation because there is no
evidence she was engaged in protected activity. (Mem. in Supp., Doc. No. 49, p. 12) Although
Plaintiff alleges she complained about the age discrimination and sexual harassment she was
subjected to (Compl., ¶ 61), she testified that she never complained about Reif’s conduct, and
that the lack of a Human Resources Department made such a complaint impossible. (Fabian
Depo., 193:3-194:3; 200:4-13; 202:9-13)
Even assuming Plaintiff engaged in protected activity, Defendant argues that Plaintiff
cannot establish the requisite causal connection to establish that the decision not to renew her
agreement was in retaliation for complaining. (Mem. in Supp., Doc. No. 49, pp. 13-14) If
Plaintiff reported age discrimination and harassment to John Shaw during their April 2008

- 14 -

meeting, the connection with any adverse employment action is too remote in time to present a
genuine factual issue on retaliation. Sisk v. Picture People, Inc., 669 F.3d 896, 900 (8th Cir.
2012) (quoting Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir.1999)). Because
there is no evidence that the Rams retaliated against Plaintiff for any kind of protected activity,
Defendants’ motion for summary judgment on Count III will be granted.
Battery
Under Missouri law, battery is defined as “an intended, offensive bodily contact with
another.” Woods v. Wills, 400 F.Supp.2d 1145, 1171 (E.D. Mo. 2005) (citing Phelps v. Bross, 73
S.W.3d 651, 656 (Mo.Ct.App. 2002)). Plaintiff’s allegations of battery are based on her claims
that Reif “touched [her] shoulders, back and waist in an offensive and intimidating manner.”
(Compl., ¶ 67). She claims this conduct showed “complete indifference to, and a conscious
disregard for [her] health and safety,” and was “offensive, threatening, degrading and
intimidating.” (Compl., ¶¶ 68-69)
In support of its motion for summary judgment, Defendants argue that the alleged actions
are so patently inoffensive, evidenced by the fact that Plaintiff never complained about it or
reported any alleged offensive touching, that her claim for battery fails. (Mem. in Supp., Doc.
No. 49, p. 15; Fabian Depo., 193:3-194:3; 200:4-13) “Contact with the body is offensive if it
offends a reasonable sense of personal dignity.” Cooper v. Albacore Holdings, Inc., 204 S.W.3d 238,
246 (Mo.Ct.App. 2006) (quoting J.D. v. M.F., 758 S.W.2d 177, 178 (Mo.App. E.D.1988)). Because
Plaintiff cannot show that Reif made any contact with her that would offend “a reasonable sense

of personal dignity,” her claim for battery fails. Defendants’ motion as to Count IV will be
granted.
Accordingly,

- 15 -

IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment [47] is
GRANTED in part and DENIED in part as follows:
Defendants’ motion as to Count I is DENIED;
Defendants’ motion as to Counts II, III and IV is GRANTED.
An appropriate Judgment will accompany this Memorandum and Order.
IT IS FURTHER ORDERED that Defendants’ Motion to Strike Plaintiff’s Statement of
Uncontroverted Material Facts [63] is DENIED.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
Dated this 21st day of January, 2014.

- 16 -