Chapter 7 Trustee Fredrich Cruse v. Bi-State Development Agency of the Missouri-Illinois Metropolitan District

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

CHAPTER 7 TRUSTEE )

FREDRICH CRUSE, )

)

Plaintiff, )

)

vs. ) Case No. 4:20-cv-366-MTS

)

BI-STATE DEVELOPMENT AGENCY )

OF THE MISSOURI-ILLINOIS )

METROPOLITAN DISTRICT, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

Before the Court are the parties’ cross Motions for Summary Judgment, Doc. [121] and

[126], pursuant to Federal Rule of Civil Procedure 56, on Plaintiff’s Second Amended Complaint,

Doc. [40], asserting claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et

seq., and Section 1983, 42 U.S.C. § 1983, based on sexual harassment and retaliation in the

workplace. Because there remain genuine disputes of material fact relevant to each claim, the

Court will deny the parties’ Motions for Summary Judgment.

I. BACKGROUND

Plaintiff Niema Jordan1 sued her employer, Defendant Bi–State Development Agency of

Missouri–Illinois Metropolitan District (“Bi-State”), based on alleged sexual harassment by her

1 Jordan originally filed this action, but the Court subsequently held that Fredrich Cruse, the trustee of Jordan’s Chapter

7 bankruptcy estate, is the real party in interest in the case, and it accordingly substituted Trustee Cruse for Jordan as

the Plaintiff. Doc. [39] at 1–3. While she is no longer a party in this action, for ease of reference the Court

interchangeably refers to “Jordan” and “Plaintiff.”

supervisor and subsequent retaliatory conduct by Bi-State employees based on reporting her

supervisor and other Bi-State employees.2

Lawrence Brew worked in a supervisorial role with Bi-State from approximately 2007 until

October 2019. In April 2015, Bi-State hired Jordan. In or around the Fall of 2018, Jordan alleges

Brew—her then supervisor—began sexually harassing her. According to Jordan, Brew sexually

propositioned and harassed her, including quid pro quo harassment,3 both in person and via

telephone. In or around August or September of 2018, Jordan complained of Brew’s conduct to a

Bi-State manager, but nothing was done. Doc. [143-4] at 6 (21:25–22:20). During a telephone

conversation between Jordan and Brew on September 24, 2018, Jordan asked what she could do

to be promoted and in response, Brew told Jordan to show him why she was special or deserved

the job, and when Jordan asked Brew what he meant, he said she was a smart girl and should be

able to figure it out. Doc. [143] ¶ 30. Once again, Jordan reported Brew—this time to Human

Resources (“HR”). Doc. [124-1] at 29–28. However, HR did not investigate and ultimately

dismissed Jordan’s complaints. Id. According to Jordan, Brew continued to sexually proposition

and harass her, including quid pro quo harassment, and in October 2018, Jordan filed an internal

harassment complaint about Brew to Bi-State’s EEO group. Doc. [128-39] at 1. After several

complaints of Brew’s conduct within Bi-State, Jordan reported subsequent harassment and threats

by Bi-State employees. In November 2018, Jordan filed an “official” Title VII complaint with the

EEO group regarding Brew’s conduct and Bi-State employees’ subsequent retaliatory conduct.

Doc. [128-16].

2 Plaintiff also sued several individual defendants, including Lawrence Brew; however, those individuals are no longer

parties in the case.

3 The term “quid pro quo” harassment is typically a claim that an employer demanded sexual favors in exchange for

job benefits and took tangible action against the plaintiff when she refused to acquiesce. McMiller v. Metro, 738 F.3d

185, 188 (8th Cir. 2013).

In December 2018, White Coleman & Associates, LLC took over Bi-State’s EEO’s

investigatory functions to investigate Jordan’s complaints of Brew’s alleged sexual harassment.4

In March 2019, after the investigation concluded and no action was taken against Brew, Jordan

filed a Charge of Discrimination with the EEOC regarding Brew’s sexual harassment and Bi-

State’s retaliation. Doc. [128-14]. After filing the EEOC charge, Jordan reported that the

complained-of-harassers were still working as her supervisors and had “doubled down” on the

harassment and discrimination. Id. at 3. In June 2019, Jordan filed a second Charge of

Discrimination with the EEOC relating to Bi-State employees alleged retaliatory conduct. Id.

Since then, Jordan reported “workplace retaliation and harassment increased,” and in September

2020, she filed a third Charge of Discrimination. Id. at 5. During this time, Jordan has also filed

several other internal complaints with Bi-State, see, e.g., Doc. [128-25]; [124-28], and with much

more frequency, she continues to make many calls to various Bi-State managers to report different

forms of retaliation, Doc. [153] ¶ 66.

Plaintiff asserts four counts against Bi-State: (1) sex discrimination/harassment in violation

of Title VII (Count I); (2) retaliation in violation of Title VII (Count II); (3) sex

discrimination/harassment under the Fourteenth Amendment’s Equal Protection Clause and

§ 1983 (Count III); and (4) retaliation under the First Amendment and § 1983. Doc. [40] at 8–14.

In the current Motions, Plaintiff moves for Summary Judgment on Counts I–III, Doc. [121], and

Bi-State moves for Summary Judgment on all four Counts, Doc. [126].

II. STANDARD

The standards applicable to summary judgment motions are well settled and do not change

when both parties have moved for summary judgment. See Tower Rock Stone Co. v. Quarry &

4 Prior to 2018, Brew was never investigated for misconduct. Doc. [153] ¶ 69.

Allied Workers Loc. No. 830, 918 F. Supp. 2d 902, 905 (E.D. Mo. 2013) (citing Wermager v.

Cormorant Twp. Bd., 716 F.2d 1211, 1214 (8th Cir. 1983)). The Court views any factual disputes

in the light most favorable to the non-moving party, Scott v. Harris, 550 U.S. 372, 380 (2007), and

“must grant a motion for summary judgment if the moving party shows that there are no genuine

disputes of material fact and that it is entitled to judgment as a matter of law.” Bedford v. Doe,

880 F.3d 993, 996 (8th Cir. 2018) (citing Fed. R. Civ. P. 56(a)). “Where parties file cross-motions

for summary judgment, each summary judgment motion must be evaluated independently to

determine whether a genuine dispute of material fact exists and whether the movant is entitled to

judgment as a matter of law.” Willert Home Prod., Inc. v. Driveline Retail Merch., Inc., 4:20-cv-

01151-MTS, 2022 WL 485278, at *1 (E.D. Mo. Feb. 17, 2022). “[T]he filing of cross motions for

summary judgment does not necessarily indicate that there is no dispute as to a material fact, or

have the effect of submitting the cause to a plenary determination on the merits.” Wermager, 716

F.2d at 1214.

The movant bears the initial responsibility of informing the district court of the basis for

its motion and must identify the portions of the record that it believes demonstrate the absence of

a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “Only

disputes over facts that might affect the outcome of the suit under the governing law will properly

preclude” summary judgment. Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 1002 (8th Cir.

2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A party will not

withstand summary judgment with “[m]ere allegations, unsupported by specific facts or evidence

beyond [his or her] own conclusions.” Thomas v. Corwin, 483 F.3d 516, 526 (8th Cir. 2007). But,

where sufficient evidence supports a factual dispute, it is up to the jury to resolve the dispute at

trial. Liberty Lobby, 477 U.S. at 248–49.

III. DISCUSSION

For summary judgment purposes, a court must tether its analysis to the legal elements of

the claims at issue. “[E]mployment discrimination cases are often fact intensive and dependent on

nuance in the workplace.” Pye v. Nu Aire, Inc., 641 F.3d 1011, 1018 (8th Cir. 2011). The facts in

this case are voluminous; the majority are in dispute, amounting to a “he-said-she-said” type

situation. Because there remain genuine disputes of material fact relevant to each claim, summary

judgment is improper. And, after considering Bi-State’s affirmative defenses, Doc. [127-1] at 18–

22, the Court finds that none entitles them to judgment as a matter of law.

A. Sexual Harassment

Turning to the sexual harassment claims against Bi-state, Jordan alleged two forms: hostile

work environment and quid pro quo harassment.5 To prove quid pro quo harassment, evidence

must show (1) Jordan was a member of a protected class; (2) Jordan was subjected to unwelcome

sexual harassment in the form of sexual advances or requests for sexual favors; (3) Brew’s

harassment was based on sex; and (4) that “submission of unwelcome advances was an express or

implied condition for receiving job benefits or [that] refusal to submit resulted in a tangible job

detriment.”6 Butler v. Crittenden Cty., Ark., 708 F.3d 1044, 1049 (8th Cir. 2013) (quoting Newton

v. Cadwell Labs., 156 F.3d 880, 882 (8th Cir. 1998)). To prove hostile work environment,

evidence must show that (1) Jordan was a member of a protected group; (2) Jordan was subject to

unwelcome harassment; (3) Brew’s harassment was based on sex; (4) his harassment affected a

5 “Title VII now prohibits both quid pro quo harassment, where an employee’s submission to or rejection of a

supervisor’s unwelcome sexual advances is used as the basis for employment decisions, and hostile work environment

harassment, where “the 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.” Tenge v. Phillips Mod. Ag Co., 446 F.3d 903, 908 (8th Cir. 2006).

6 Unlike hostile work environment, quid pro quo sexual harassment does not require the harassment to be severe or

pervasive because any carried-out threat is an actionable change in the terms and conditions of employment. Anderson

v. Family Dollar Stores of Arkansas, Inc., 579 F.3d 858, 863 (8th Cir. 2009).

term, condition, or privilege of Jordan’s employment. E.E.O.C. v. CRST Van Expedited, Inc., 679

F.3d 657, 683 (8th Cir. 2012). Because the alleged harassment was committed by Jordan’s

supervisor, Bi-state may be strictly or vicariously liable for Brew’s sexual harassment.7 Vance v.

Ball State Univ., 570 U.S. 421, 428 (2013); Crawford v. BNSF Ry. Co., 665 F.3d 978, 983 (8th

Cir. 2012).

“Regardless of whether [Jordan’s] claim is styled as hostile work environment or quid pro

quo sexual harassment, the law is clear that the frequency and type of conduct is of the utmost

importance in determining whether sexual harassment has occurred.” Brown v. Adams & Assocs.,

Inc., 4:19-cv-01864-MTS, 2020 WL 7360336, at *4 (E.D. Mo. Dec. 15, 2020). Exactly those

things are in dispute here. There are significant disputes as to Brew’s conduct—how often he

interacted one-on-one with Jordan, the frequency of his inappropriate conduct, the severity of his

conduct, and whether he made the comments and passes of which Jordan complains. Pye, 641

F.3d at 1018 (explaining factors for determining whether conduct rises to the level of harassment

include frequency of the discriminatory conduct; its severity; whether it is physically threatening

or humiliating; and whether it unreasonably interfered with an employee’s work performance).

And whether Brew’s “conduct rose to the level of sexual harassment is usually a factual

determination for the jury,” especially considering the mountain of disputed facts relating to

Brew’s conduct. Moring v. Ark. Dept. of Correction, 243 F.3d 452, 456 (8th Cir. 2001). These

factual disputes necessarily affect the outcome of the suit. Alvarez v. Des Moines Bolt Supply,

Inc., 626 F.3d 410, 419 (8th Cir. 2010) (“When an employee complains about inappropriate

7 If Brew’s harassment culminated into a “tangible employment action,” Bi-State is strictly liable. See Vance, 570

U.S. at 424. If there was no tangible employment action, Bi-State will be vicariously liable, unless it proves the

Ellerth–Faragher affirmative defense. Id. The Ellerth–Faragher affirmative defense protects an employer otherwise

vicariously liable for a harassing supervisor’s conduct. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765

(1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807–08 (1998).

conduct that does not rise to the level of a violation of law, however, there is no liability for a

failure to respond.” (citing Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 67 (1st Cir. 2002) (“In

the absence of conduct creating a sex-based hostile educational environment, laxity on the part of

school officials in investigating an incident is not actionable under Title IX.”)).

There is also a dispute whether Brew’s alleged sexual harassment or Jordan’s failure to

submit to Brew’s unwanted sexual propositions led to Jordan’s “hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a decision causing a significant

change in benefits.”8 Vance, 570 U.S. at 431 (describing tangible employment actions). Or

whether “[l]esser actions than demotion, suspension, or termination [constituted] adverse

employment actions [because] their cumulative effect cause[d] [Jordan] to suffer ‘serious

employment consequences’ that adversely affect[ed] or undermine[d] [her] position.’”9

Charleston v. McCarthy, 926 F.3d 982, 989 (8th Cir. 2019) (quoting Shockency v. Ramsey Cnty.,

493 F.3d 941, 948 (8th Cir. 2007)). Thus, whether Brew’s alleged harassment culminated into a

“tangible employment action” is a material factual dispute. See Vance, 570 U.S. at 424 (“If the

supervisor’s harassment culminates in a tangible employment action, the employer is strictly

liable.”).

8 Notably, it is disputed what job, promotion, or “tangible job detriment” is even at issue. There is even a dispute

regarding whether Jordan was told she had a job/promotion and who, if anyone, did tell her, and whether Brew had

authority to make such a decision. Bethune v. City of Pine Bluff, 5:18-cv-00138-BSM, 2019 WL 10892093, at *3

(E.D. Ark. July 17, 2019) (denying summary judgment on quid pro quo sexual harassment claim when dispute as to

what authority the harasser had). It is further disputed whether Brew had any role—direct or indirect—in such action.

Denn v. CSL Plasma, Inc., 816 F.3d 1027, 1035 (8th Cir. 2016) (explaining the discriminating employee must be

linked to the decision-maker); see also Fast v. Southern Union Co., Inc., 149 F.3d 885 (8th Cir. 1998) (finding that

comments by non-decision maker provided circumstantial evidence of discrimination where other evidence indicated

that the comments influenced the decision to fire the plaintiff).

9 Alvarez, 626 F.3d at 421 (“‘A hostile work environment is a cumulative phenomenon,’ and a series of individual

episodes of inappropriate behavior eventually can amount to a hostile environment.” (citing Engel, 506 F.3d at 1124)).

But even if no tangible employment action was taken against Jordan, there remains

disputed facts relating to whether Bi-State “exercised reasonable care to prevent and correct any

harassing behavior.” Vance, 570 U.S. at 424 (explaining even if no tangible employment action

is taken, the employer may escape liability by establishing, as an affirmative defense, that the

“employer exercised reasonable care to prevent and correct any harassing behavior”);10

Brenneman v. Famous Dave’s of Am., Inc., 507 F.3d 1139, 1145 (8th Cir. 2007) (explaining this

element of the affirmative defense is comprised of “two prongs: prevention and correction”).11

Specifically, there is a dispute as to whether and when Bi-state had actual or constructive notice

of the harassment,12 Jenkins v. Winter, 540 F.3d 742, 751 (8th Cir. 2008), which is of “paramount

importance” when assessing whether an employer exercised reasonable care to prevent or

promptly correct any sexually harassing behavior. Crawford, 665 F.3d at 984. There are also

genuine disputes regarding the remedial action Bi-State did take. Ogden v. Wax Works, Inc., 214

F.3d 999, 1007 (8th Cir. 2000) (finding employer not entitled to affirmative defense when

employer minimized the plaintiff’s complaints of sexual harassment, performed a cursory

investigation, and eventually forced her to resign without disciplining the harasser); see also

Weger, 500 F.3d at 722 (applying affirmative defense where harassment ended soon after report

was made). These facts are necessary to determine Bi-State’s liability. Vance, 570 U.S. at 424

10 The Court notes this defense is unavailable to Bi-State if Jordan did suffer a tangible employment action,

Brenneman v. Famous Dave’s of Am., Inc., 507 F.3d 1139, 1144 (8th Cir. 2007), which is a fact in dispute.

11 Under the prevention prong, the employer must have exercised reasonable care to prevent sexual harassment. Under

the correction prong, the employer must have promptly corrected any sexual harassment that occurred.

12 This is especially true because Jordan provides an abundance of evidence that Bi-State was, or at the very least,

should have been aware of Brew’s harassment, either directly or because of “other unrelated misconduct at” Bi-State

that should have “notified the company of additional harassment aimed at” Jordan. Alvarez v. Des Moines Bolt Supply,

Inc., 626 F.3d 410, 422 (8th Cir. 2010). Thus, a jury must determine whether Bi-State exercised reasonable care to

prevent sexual harassment.

(explaining an employer is liable for its supervisor employees’ actions in violation of Title VII

unless it can show it took preventative action and immediate and appropriate corrective action).

But the factual disputes discussed supra preclude the Court from determining whether

Brew’s actions amounted to “harassment” or “hostile work environment” as a matter of law.13

These outstanding factual disagreements likely can be resolved only by a determination of the

parties’ credibility and the weighing of the evidence—but such matters are for a jury to resolve at

trial, not the Court on a motion for summary judgment. Jackson v. United Parcel Serv., Inc., 643

F.3d 1081, 1085 (8th Cir. 2011) (“Credibility determinations, the weighing of the evidence, and

the drawing of legitimate inferences from the facts are jury functions, not those of a judge.”

(quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011))). The Court does

not have a full picture of either Brew’s interactions with Jordan or the context surrounding those

interactions. The number of disputed facts that are relevant to deciding whether Brew’s conduct

rises to the level of “unwelcome sexual harassment” or affect a “term, condition, or privilege of

employment,” renders summary judgment inappropriate.

B. Retaliation

Title VII prohibits employers from retaliating against any employee who complains of

sexual harassment in the workplace. Sellars, 13 F.4th at 691. To prove retaliation, evidence must

show (1) Jordan engaged in protected activity; (2) she suffered an adverse employment action; and

(3) there is a causal connection between Jordan’s protected activity and the adverse action.

Blomker v. Jewell, 831 F.3d 1051, 1059 (8th Cir. 2016). Once a plaintiff has alleged a materially

adverse employment action, to survive a motion for summary judgment on a retaliation claim,

13 Plaintiff’s entire Motion for Summary Judgment is premised on a theory that because a Bi-State official stated, in

her opinion, during a Rule 30(b)(6) deposition, that Jordan was sexually harassed or retaliated against, that Jordan, as

a matter of law, was sexually harassed and retaliated against. This argument is without merit or support under the

law.

there must be either direct evidence of retaliation or an inference of retaliation under McDonnell

Douglas burden-shifting framework. Hutton v. Maynard, 812 F.3d 679, 683 (8th Cir. 2016). It is

undisputed Jordan engaged in protected conduct when she internally reported Brew in Fall 2018

and continued reporting and filing complaints, both internally and externally, relating to Brew and

other Bi-State employees’ actions. Pye, 641 F.3d at 1020 (finding the filing of internal

discrimination complaint qualifies as protected conduct). But there are substantial factual disputes

relating to whether Jordan’s complained of adverse acts were connected to her protected

activities14 or caused a material change in her employment status.15 Thus, summary judgment is

denied because genuine disputes remain as to whether Bi-state employees took adverse

employment action against Jordan motivated by her Title VII-protected activities.

C. Section 1983 Claims

Bi-State asserts Jordan “failed to state a claim” regarding her § 1983 claims (Count III and

IV).16 Doc. [131] at 16. But a motion for summary judgment, on its own, is not the appropriate

14 There are factual disputes as to whether the decisionmakers in the alleged adverse actions were aware of the

protected activities. Dedmon v. Staley, 315 F.3d 948, 949 n.2 (8th Cir. 2003) (explaining an employer cannot avoid

liability by using a “purportedly independent person or committee as the decisionmaker where the decisionmaker

merely serves as the conduit, vehicle, or rubber stamp by which another achieves his or her unlawful design”). Or,

whether this is a “cat’s paw” situation, in where Brew—the harassing subordinate who may have lacked decision-

making power in the adverse actions—used a formal decisionmaker (here, other Bi-state employees) as a “dupe in a

deliberate scheme to trigger” a discriminatory employment action. See Qamhiyah v. Iowa State Univ. of Sci. & Tech.,

566 F.3d 733, 742 (8th Cir. 2009); see also Goodman v. Performance Contractors, Inc., 363 F. Supp. 3d 946, 958

(N.D. Iowa 2019) (collecting Eighth Circuit cases applying the cat’s paw theory). This is especially important

considering the evidence showing two-decades worth of Brew’s inappropriate conduct with subordinate female

employees, Bi-State employees consistently taking no action against him, and evidence (other than Jordan’s own

accounts) describing the retaliatory and cover-up culture at Bi-State, specifically in relation to upper level Bi-State

employees “protection” of Brew.

15 Jordan identifies several specific actions she suffered post-reporting Brew and other Bi-State employees’ conduct,

which she asserts are adverse employment actions, either independently or cumulatively. There is a genuine dispute

regarding the existence, extent, and severity of these actions, thus, there are genuine disputes whether these actions

had “serious employment consequences” that “adversely affected or undermined” Jordan’s position. Charleston, 926

F.3d at 991.

16 Bi-State’s entire argument is comprised of a single sentence stating that the Court should “dismiss” the § 1983

claims because Jordan’s Complaint “does not allege that the acts at issue in this lawsuit occurred because of Bi-state

vehicle for an argument that a Complaint fails to state a claim upon which relief can be granted.

See Fed. R. Civ. P. 12(h)(2), 12(b)(6). Thus, the Court does not address the substantive!’

arguments relating to Bi-State’s municipal liability under § 1983.

CONCLUSION

Because genuine disputes of material fact relevant to each claim remain, and Bi-State is

not entitled to judgment as a matter of law, both parties’ motions for summary judgment are denied.

Accordingly,

IT IS HEREBY ORDERED that Plaintiff's Motion for Summary Judgment, Doc. [121],

is DENIED.

IT IS FURTHER ORDERED that Defendant Bi-State’s Motion for Summary Judgment,

Doc. [126], is DENIED

Dated this 21st day of April, 2022. Ai }

| / j\——

| —

MATTHEW T. SCHELP

UNITED STATES DISTRICT JUDGE

policy or custom.” Doc. [131] at 16. Plaintiff responded to this argument, Doc. [142] at 34—26, and Bi-State failed

to respond in its Reply Brief, Doc. [156].

' The Court notes Jordan does not seek Summary Judgment on the free speech retaliation § 1983 claim (Count IV)

against Bi-State. Rather, Jordan’s Motion for Summary Judgment pertains to the Due Process § 1983 claim (Count

However, as the Court discussed in its Memorandum and Order, disputes of fact remain as to Brew’s alleged

sexual harassment, Bi-State employees’ alleged retaliation, and whether Bi-State employees were on notice of the

harassment and failed to act accordingly.

11