Petition for Writ of Certiorari — McCown v. St. John's Health System, Inc.

203-1148 | a

Supreme Court of the United States

JAMES A. MCCOWN,

Petitioner,

ST. JOHN’S HEALTH SYSTEM, INC.; SISTERS OF MERCY

HEALTH SYSTEM; LLOYD SOLAR; WILLIAM SYLER;

ROBERT HAMMONS; PAUL ELMORE; JOHN SWOPE; ROBERT

NORTON; and ST. JOHN’S REGIONAL HEALTH CENTER,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

Marina Tramontozzi

Counsel of Record

Jeffrey M. Merrell

The Merrell Law Firm

259 Shadowrock Drive

P.O. Box 1036

Forsyth, MO 65653

(417) 546-6281

Attorneys for Petitioner

CURRY & TAYLOR @ WASH D.C. @ (202) 223-3160 @ USSCINFO.COM

Supreme Coun Ts

FEB 10 2004

OFFICE OF THE CLERK

77

i

QUESTIONS PRESENTED

Whether proof of homosexual desire of the

harasser is necessary for a victim of same-

sex sexual harassment to survive the

harasser’s summary judgment motion.

Whether proof of a mixed-sex workplace is

necessary for a victim of same-sex sexual

harassment to survive the harasser’s

summary judgment motion.

ii

TABLE OF CONTENTS

pages

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TABLE OF AUTHORITIES

Pages

CASES

ANDERSON V, LIBERTY LOBBY, INC., 477 U.S.

i tla dinar eanlneecierneniaiienneene 12

BREITENFELDT V. LONG PRAIRIE PACKING CO.,

INcC., 48 F.SupP.2pD 1170, 1172-1173 (D.MINN.

aia aceiainialacinnenounianineninetiwvuniatatiocsinns 13

FALL vV. INDIANA UNIVERSITY BOARD OF

TRUSTEES, 12 F.SUPP.2D 870, 879-80 (N.D.IND.

EEE TES ee ree 11,12

FRY vV. HOLMES FREIGHT LINES, INC., 72

F.SUPP.2D 1074, 1078-79 (W.D.MO. 1999)...........csceeee 13

HARRIS V. FORKLIFT SYSTEMS, INC., 510 U.S. 17,

25 (GINSBURG J., CONCURRING).......ccccsscssssscccesscecsescores 14

MERITOR SAV. BANK, FSB v. VINSON, 477 U.S.

ERE AIL ee 9,19

NEWTON V. CALDWELL LABORATORIES, 156 F.3D

SE MS GEIL, BUIIND ccninenpsensasesnnesnsenvoccdonosoesncesssoesnooss 12

ONCALE V. SUNDOWNER OFFSHORE SERVICES,

SE EE, GOR, PIPE LIE) cnnnsccessscssaccncscsvcoseesoovcnses 1,9, 19

QUICK V. DONALDSON Co., INC., 90 F.3D 1372,

TI I scan eseclthiiunsenbstiiunenbawensavoneones 15

RENE V. MGM GRAND HOTEL, INC., 305 F.3D

SE GF GREE, BI? ssescewseseconsscseceevsnsacenereses 11, 12,18

iV

SCHMEDDING V. TNEMECK Co., INC., 187 F.3D

B62, 864 (8™ CIR. 1999) ....erecscccrersessseesesseerenenersensnencnsensens 13

OTHER AUTHORITIES

AZ U.S.C. §$2000e, et SOQ. .....sesrecreeresrsereeerserseerennenes passim

’ BEOC Policy Guidance on Sexual Harassment, 8

Fair Emp. Prac. Man. (BNA) 405:6691 (March

19, 1990) ....cceccsssssscsssssesesscsesecnsesensnssnssssnsassesnsnsnsensasanensesees 12

Hillary S. Axam & Deborah Zalesne, Simulated

Sodomy and Other Forms of Heterosexual

“Horseplav:” Same Sex Sexual Harassment

Workplace Gender Hierarchies, and the Myth

of the Gender Monolith Before and After

Oncale, 11 Yale J.L. & Feminism 155, 173-74

(1999) .....cccccccscscosesessssesssecsssececessessssnsesecncessessecncnsnenensonees 11

Missouri Human Rights Act (“MHRA”) ..........2++ passim

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‘

OPINIONS BELOW

The opinion of the Federal District Court for the

Western District of Missouri, Southern Division (App.

9-28) is not published. The opinion of the Eighth Circuit

Court of Appeals (App. 1-8) is reported at 349 F.3d 540.

JURISDICTION

The judgment of the court of appeals was

entered on November 12, 2003. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

CONSITUTIONAL STATUTES

AND PROVISIONS INVOLVED

US CODE--TITLE 42 Sec. 2000e-16b is

reproduced in the appendix at page 56a.

STATEMENT

In this case, the lower courts applied the law set

out by this Court in Oncale v. Sundowner Offshore

Services. Inc., 523 U.S. 75 (1998) in a manner that

resulted in an increased burden on McCown at the

summary judgment stage of the case, that resulted in

the granting of St. John’s motion for summary

judgment, that resulted in depriving McCown of his

right to have his case heard by a jury.

Appellant McCown was employed by St. John’s

Regional Health Center (““SJRHC”) from October 1994

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through April 1, 2001. During his employment,

McCown was sexually assaulted by his immediate

supervisor, Lloyd Soller (“Soller”) on numerous

occasions from about October 1999 until July 2000.

Many of Soller’s assaults involved Soller grabbing

McCown’s waist, chest, and buttocks, or simulating anal

intercourse by grinding his crotch against McCown’s

anus and jabbing McCown’s anus with the handle of a

shovel. Some of these assaults were accompanied by

sexually suggestive comments made by Soller toward

McCown.

These assaults left McCown _ feeling

embarrassed, humiliated, and distracted from his work.

Some of McCown’s co-workers were witnesses to

Soiler’s assaults on McCown. These assaults were

traumatizing to McCown, and caused him to have

negative feelings about his job and himself, for which he

sought some counseling. McCown told Soller to stop

touching him and to leave him alone, but the

harassment continued.

In an attempt to comply with SJRHC’s sexual

harassment policy, McCown reported Soller’s assaults

to William Syler, who was one of Soller’s supervisors.

When Soller’s harassment continued, McCown reported

the assaults to Robert Hammons, who was another of

Soller’s supervisors. When Soller’s harassment

continued, McCown contacted the EEOC and Missouri

Commission on Human Rights, filing a formal

complaint.

Once SJRHC received notice of McCown’s

formal complaint with the EEOC and MCHR, a brief

investigation was done by William Syler, the results of

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which were subsequently destroyed. SJRHC removed

McCown from his position with the projects shop,

isolating him from his co-workers so that Soller was no

longer his immediate supervisor. McCown was then

directed by William Syler and Robert Hammons to do

jobs in contradicting ways, to repeat jobs, and to re-do

jobs. McCown felt that Syler and Hammons were

trying to drive him out of his position with SJRHC.

On April 1, 2001, McCown finally resigned his

employment due to intolerable working conditions.

McCown then obtained a right to sue letter and

instigated the present action. McCown brought claims

against the individual supervisors he reported to,

Soller, Sisters of Mercy, and St. John’s Health System

for sexual harassment under Title VII and the Missouri

Human Rights Act. McCown later amended his claim

to correctly name SJRHC.

Defendants brought a motion for summary

judgment before the Magistrate. At that time, the

Magistrate granted SJRHC’s motion for summary

judgment on McCown’s Title VII and MHRA claim,

_ because it found there was no genuine issue of material

fact that McCown suffered discrimination “because of

sex,” which is an “essential element of a same-sex

harassment cause of action.” At that time, the

Magistrate also granted SJRHC’s motion for summary

judgment on McCown’s disparate treatment claim,

because it found that McCown failed to establish that

there were any similarly situated females in his

workplace and that any females received more

favorable treatment than he did.

4

McCown appealed the entry of summary

judgment on the Title VII and MHRA claims with

regard to SJRHC. After oral argument, the appeals

court affirmed the Magistrate’s granting of SJRHC’s

motion for summary judgment, following the

Magistrate’s reasoning in granting SJRHC’s original

motion for summary judgment.

STATEMENT OF FACTS

A. McCown is hired by SJRHC.

McCown was hired by the projects shop at

SJRHC in 1998 as a general construction laborer, in the

projects shop on the health center’s Springfield,

Missouri, campus. McCown’s immediate supervisor in

the projects shop was Lloyd Soller, until October 2000

when McCown was removed from Soller’s supervision.

McCown did demolition, repair, construction, and

renovation.

At the time McCown worked in the projects

shop, there were both men and women employed by

SJRHC in that shop, although men worked primarily

outside the offices, while women worked in secretarial

capacities in the offices. Thus, Appellant contends that

the projects shop was a mixed-gender work force.

SJRHC also employed a sexual harassment policy while

McCown was employed in the projects shop. In

addition to reviewing literature relating to SJRHC’s

sexual harassment policy, McCown attended an initial

orientation seminar provided to all new employees at

SJRHC.

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B. Soller sexually harasses McCown

continually.

McCown worked under the direct supervision of

Soller in the projects shop. During the course of

McCown’s employment with SJRHC, Soller sexually

assaulted and harassed McCown by grabbing his

buttocks, and Soller grinding his genitals against

McCown’s buttocks and anus in simulated homosexual

intercourse. Soller also sexually harassed McCown by

Soller telling him to “squeal like a pig, or a woman,” and

by Soller attempting to stick handles-of a shovel and

tape measure in McCown’s anus. Soller’s sexual

assaults were sporadic and unprovoked.

a The beginning of Soller’s harassment.

In October 1999, Soller grabbed McCown’s waist

and chest from behind on several occasions, while

making comments such as “hey, little piggy,” and “hey,

sweetie, what kind of work are you going to do today?”

In November 1999, Soller grabbed McCown by his

waist and chest and told numerous sexual jokes around

McCown, on multiple occasions. In December of 1999,

McCown noticed Soller touching and grabbing him

more frequently, and would not stop his activity. At

this time, McCown began documenting Soller’s

behavior in a journal.

2. McCown documents Soller’s

harassment.

Throughout January 2000, Soller grabbed

McCown by his waist and buttocks. In one instance of

grabbing McCown, Soller told McCown to “squeal like a

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pig,” and on a separate instance made pig noises.

McCown repeatedly asked Soller to stop his behavior,

and on time Soller laughed at McCown when asked to

stop.

Throughout February 2000, Soller continued to

grab McCown by his waist and buttocks, including

grinding his genitals against McCown’s buttocks and

anus in simulated homosexual intercourse. In March

2000, Soller again grabbed McCown by his waist, this

time telling McCown to “squeal like a pig, or a woman.”

Also during March 2000, Soller attempted to

stick the handle of a shovel in his anus, and McCown

threatened to complain ‘o William Syler. Soller

laughed and retorted to McCown, “yeah, right,” and

told McCown that if he needed his job he would not

complain. Days later, McCown complained to Syler.

Soller’s harassment ¢ontinued throughout March,

including Soller grabbing McCown’s waist and slapping

his buttocks.

3. Despite McCown’s verbal complaints,

more harassment.

Throughout April and May of 2000, Soller

grabbed McCown’s waist several times, in addition to

instigating an intensifying pattern of sexual assaults on

McCown. On numerous occasions Soller attempted to

stick the end of a tape measure in McCown’s anus,

despite McCown’s continued verbal objections.

Later, Soller again grabbed McCown’s waist and

proceeded grinding his genitals against McCown’s

buttocks and anus. Upon McCown’s verbal objection,

7

Soller asked, “what are you going to do?” On another

occasion, when McCown’s car ran out of gas on his way

to work, Soller asked him “don’t you know how to

suck?” Soller went on to say he had heard McCown was

good at sucking and he should have sucked some gas for

his car. A few days later, Soller kicked McCown in his

buttocks.

In June 2000, Soller poked the end of a tape

measure in McCown’s crotch and commented, “I got

your 4-to-6 inches right here.” The next day, McCown

made a verbal complaint about this behavior to Robert

Hammons. Upon not seeing any action, McCown later

complained to Paul Elmore and Jon Swope.

Dissatisfied that his complaints were being properly

investigated by SJRHC, McCown filed a formal

complaint with the EEOC and Missouri Commission on

Human Rights on Oc.ober 4, 2000.

C. SJRHC fails to adequately investigate

McCown’s claim of sexual harassment.

McCown verbally reported to SJRHC these

instances of sexual assault and sexual harassment by

Soller. When McCown complained to William Syler of

Soller’s behavior, Syler told McCown that he would

“take care of it” and get back to him. Syler never did

take care of the harassment, nor get back to McCown

about the complaint. McCown later verbally reported

to SJRHC these continued instances of sexual assault

and sexual harassment by Soller by notifying Robert

Hammons. After McCown’s notice, Hammons told

McCown to “deal with it,” and if he didn’t like it to “find

a new job.” After McCown’s verbal reports, Soller’s

harassing behavior continued. McCown then verbally

8

reported Soller’s behavior to Paul Elmore and Jon

Swope, who told McCown they could not make Soller

“be nice.” The day after his meeting with Elmore and

Swope, McCown filed a formal complaint with the

EEOC and the Missouri Commission on Human Rights.

Upon receiving notice of McCown’s formal complaint,

SJRHC conducted a brief investigation of McCown’s

claims concerning Soller’s behavior. William Syler

testified that the findings of the investigation were

subsequently destroyed by accident, and are not

available to be reviewed. There is no way to confirm

what SJRHC’s investigation consisted of, nor what the

exact findings were.

SJRHC eventually determined that Soller had

behaved inappropriately toward McCown, and removed

McCown from Soller’s supervision. Remedial action

taken against Soller consisted of Soller being given a

“first warning,” and having McCown removed from his

supervision. Soller testified that the “first warning”

went off his personnel records after one year. McCown

was directed to report to Syler and Hammons, instead

of Soller, and was given duties separate from his co-

workers in the projects shop.

D. McCown is constructively discharged.

As a result of being removed from his job with

his co-workers in the projects shop, McCown was often

asked to do jobs in solitude. Additionally, because he

was supervised by both Syler and Hammons, McCown

was frequently given contradicting job orders, either

intentionally or inadvertently. McCown was directed

to paint the stairwells of a portion of the hospital from

its basement to its top floor, and when finished to start

9

the same project over again. Syler and Hammons

sometimes directed projects shop employees to oversee

McCown’s painting work, although not to assist

McCown. McCown eventually found his employment at

SJRHC to be unbearable, and resigned his employment

on April 1, 2001.

As a result of the harassment and assaults, and

the retaliation McCown suffered at the hands of

SJRHC, McCown suffered mental anguish, humiliation,

and counseling expenses and future counseling needs.

REASONS FOR GRANTING THE PETITION

The Court should grant certiorari because sexual

harassment cases (especially same-sex sexual

harassment cases) are based largely upon factual

scenarios and, by granting summary judgment because

harassment was not believed to be “based upon sex,” a

trial judge can — and in this case does — preclude victims

of same-sex sexual harassment from having their day in

court. This case presents two issues on which the

Court’s guidance is needed, both of which surround

determining whether same-sex sexual harassment is

“based upon sex.”

The Court provided some help to litigants in

Oncale v. Sundowner Offshore Services, Inc., 523 U.S.

75 (1998), and in Meritor Savings Bank v. Vinson, 477

U.S. 57 (1985). However, lower courts are interpreting

this Court’s rulings hyper-strictly - as in this case —

which leaves victims of this harassment with the

courthouse doors shut in their proverbial faces, barred

10

by the summary judgment rulings of trial courts across

this country.

On two specific issues, the lower courts denied

Appellant McCown his day in court in this case,

First, the lower courts found that there was _

insufficient evidence that the harassment suffered by .

McCown was “based upon sex” due to the lack of

evidence that MeCown’s harasser, Lloyd Soller, was

motivated by sexual desire.

Second, the lower courts found that there was

insufficient evidence that the harassment suffered by

McCown was “based upon sex” due to the lack of

evidence that McCown worked in a _ mixed-sex

workplace.

These lower court holdings are not common to

this case, but they are unfairly requiring victims of

same-sex sexual harassment to meet hyper-strict

burdens that are not required to be met by mixed-sex

sexual harassment victims, and are impossible for most

same-sex sexual harassment victims to meet. This is an

increasingly important question of federal law that

should be clarified by this Court.

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1. The Court should grant certiorari to clarify

whether proof of homosexual desire of the

harasser is necessary for a victim of same-

sex sexual harassment to establish the

existence of genuine issues of material fact

and survive the _ harasser’s summary

judgment motion.

“Offensive sexual touching is_ actionable

discrimination even in a same-sex workforce.” Rene v.

MGM Grand Hotel, Inc., 305 F.3d 1061, 1067 (9 Cir.

2002). Discrimination because of sex can occur “where

some men are subjected to offensive sexual touching

and some men are not.” /d., citing Oncale, at 81. The

court in Quick specifically held that the harasser’s

motives were a question of fact in part because the

assault was to the plaintiff's sexual organs. Quick, at

1379.

Moreover, courts have long understood that

male-to-female sexual harassment may take the form of

actual or simulated sexual assaults in an attempt to

humiliate and degrade the victim. See Hillary S. Axam

& Deborah Salesne, Simulated Sodomy and Other

Forms of Heterosexual “Horseplay:” Same Sex Sexual

Harassment, Workplace Gender Hierarchies, and the

Myth of the Gender Monolith Before and After Oncale,

11 Yale J.L. & Feminism 155, 173-74 (1999). Indeed, a

single incident of sextial contact such as grabbing a

woman’s breast may be a violation of Title VII. Fall v.

Indiana University Board of Trustees, 12 F.Supp.2d

870, 879-80 (N.D.Ind. 1998) (finding liability for a single

action involving a kiss and grabbing of the victim’s

breast, which caused the victim such distress that she

12

vomited immediately afterwards).' “Such harassment -

grabbing, poking, rubbing or mouthing areas of the

body linked to sexuality - is inescapably ‘because of

sex.” Rene, 305 F.3d at 1065-66 (collecting cases

discussing physical sexual assault as violating Title

VII).

In this case, the lower courts were presented

these facts:

_ McCown had his buttocks grabbed; had Soller

grind his genitals against McCown’s buttocks and anus

in simulated homosexual intercourse; was told to

“squeal like a pig, or a woman;” and had Soller attempt

to stick handles of a shovel and tape measure in

McCown’s anus. (App. pp. 30-34)

From these facts, a fact finder could conclude

that Soller’s harassment was based on sex. Oncale, at

80-81; Quick, at 1378. All inferences are to be drawn in

McCown’s favor. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 247 (1986); see also Newton v. Caldwell

Laboratories, 156 F.3d 880, 881 (8 Cir. 1998). McCown

submits that the very fact that Soller repeatedly

assaulted his buttocks and anus creates a genuine issue

| The Fall court analyzed federal case law on this issue, noting that

many courts have found a single sexual assault is sufficient to

create a hostile environment. Fall, 12 F.Supp.2d at 879-80. The

Fall court further considered the impact of Oncale, as well as

EEOC guidelines which “presume that the unwelcome, intentional

touching of a charging party’s intimate body parts is sufficiently

offensive to alter the conditions of her employment and constitute

a violation of Title VII.” Jd. at 879 (quoting EEOC Policy Guidance

on Sexual Harassment, 8 Fair Emp. Prac. Man. (BNA) 405:6691

(March 19, 1990)).

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of fact as to whether Soller’s harassment was “based on

sex.” Thus, the Magistrate’s conclusion that there was

no evidence to create an issue of fact as to whether

Soller’s assaults were based on sex was in error.

Furthermore, the facts alleged by McCown in

the case at hand are similar to the facts in four (4) cases

cited by the Magistrate in its Order granting summary

judgment for the defendants in Schmedding v.

Tnemeck Co., Inc., 187 F.3d 862 (8 Cir. 1999); Fry v.

Holmes Freight Lines, Inc., 72 F.Supp.2d 1074 (W.D.

Mo. 1999); Breitenfeldt v. Long Prairie Packing Co.,

Inc., 48 F.Supp.2d 1170 (D.Minn. 1999), and Quick.

Although citing these cases in its Order granting

_defendant’s motion for summary judgment, the

Magistrate failed to acknowledge the similarities in the

facts of both of those cases with the case at hand. In

Quick, the plaintiff was subjected to verbal harassment,

and actions aimed at his testicles. These are similar to

the facts alleged by McCown. (App. pp. 30-34). In

Schmedding, the plaintiff was patted on the buttocks,

as similarly alleged by McCown. (App. pp. 30-34). In

Fry, the plaintiff was subjected to simulated

intercourse, as similarly alleged by McCown. (App. pp.

30-34). In Breitenfeldt, the plaintiff was subjected to

simulated anal sex, forcing and rubbing rods between

his legs, and was asked about his sexual practices.

Again, these are facts alleged by McCown in the case

before this Court. (App. pp. 30-34).

Even if the Court were to determine that the

reasoning in Oncale and Meritor are to be followed by

the lower courts in determining whether to grant

defendant’s motion for summary judgment against

plaintiff, the lower courts in this case incorrectly

14

applied the reasoning set-out by this Court, in that the

lower courts required McCown to prove that Soller

acted out of sexual desire for McCown.

2. The Court should grant certiorari to clarify

whether proof of a mixed-sex workplace is

necessary for a victim of same-sex sexual

harassment to harassment to establish the

existence of genuine issues of material fact

and survive’ the harasser’s summary

judgment motion.

As recognized in Oncale, a sexual harassment

plaintiff may demonstrate that the harassment at issue

was based on sex by setting forth “direct, comparative

evidence about how the alleged harasser treated

members of both sexes in a mixed-sex workplace.”

Oncale, at 80-81; see also Quick, at 1378 (“Evidence

that members of one sex were the primary targets of

the harassment is sufficient to show that the conduct

was gender based for purposes of summary judgment.”)

The key inquiry is whether “members of one sex are

exposed to disadvantageous terms or conditions of

employment of which members of the other sex are not

exposed.” Quick, at 1378, citing Harris v. Forklift

Systems, Inc., 510 U.S. 17, 25 (Ginsburg J.,

concurring)(emphasis added).

McCown was repeatedly subjected to assaults on

his buttocks and anus by Soller, in addition to other

harassing gestures. (App. pp. 30-34) SJRHC’s female

employees were not. (App. Pp. 30) The SJRHC projects

shop where McCown and Soller worked was a mixed-

sex workplace, in that both women and men worked in

the same building. (App. p. 30) The Magistrate

15

references that McCown’s affidavit states, “that women

also worked in the projects shop, he acknowledged that

the women primarily worked in the offices.” (App. p.

30) Whether or not these women in the projects shop

create a mixed-sex workplace is not an issue to be

decided by the Magistrate, but, rather, by a trier of

fact. In fact, the Magistrate heard no evidence about

the exact role of women in McCown’s workplace, but

only acknowledges that McCown testifies that there

were women in the workplace. ‘Thus, the Magistrate

makes the exact point McCown is trying to make, and is

required to make: that McCown had female co-workers

in the projects shop offices.

The Magistrate further cites that McCown

“admits in his affidavit that he had no knowledge

regarding whether Soller ever sexually harassed

women.” (App. p. 22) Again, the Magistrate makes the

exact point McCown is trying to make, and is required

to make: there is no evidence that Soller ever harassed

the female employees of SJRHC, only the males. (App.

p. 30) As a matter of law, the fact that females were

not targeted in the same manner raises an inference

that the harassment was based on sex sufficient to

defeat a motion for summary judgment. Oncale, at 80-

81; Quick, at 1378. Thus, the Magistrate erred as a

matter of law in concluding that there was no genuine

issue of material fact-with respect to whether Soller’s

assaults were “based on sex.”

In coming to its conclusion that there was no

genuine issue of fact, the Magistrate references the

Eighth Circuit Court of Appeals’ analysis of Quick v.

Donaldson Co., Inc,, 90 F.3d 1378 (8 Cir. 1996). In

Quick, the plaintiff filed suit against his employer for

16

sexual harassment and physical assault when he was

“bagged” numerous times by male co-workers (meaning

his testicles were assaulted). In reversing the district

court’s grant of summary judgment, the Eighth Circuit

Court of Appeals concluded that:

[The] record contains only incidents of

bagging male employees. A female

employee was apparently once asked to

bag a male supervisor, but she refused.

On this record, with all the facts and

inferences drawn in Quick’s favor, a fact-

finder could reasonably conclude that the

treatment of men at Donaldson was worse

than the treatment of women.

Quick, at 1379. Notably, the Court in Quick made no

determination of how much sexual conduct was

required before to conduct became “based on sex” — this

is an issue for the trier of fact.

McCown submits that the same conclusion

should be drawn in this case. The record contains only

evidence of Soller sexually assaulting men (McCown).

(App. pp. 30-34) It is undisputed that Soller never

harassed or assaulted women in the same fashion as

McCown. (App. p. 30) There is no evidence Soller ever

harassed a female co-worker or subordinate. (App. Pp.

30) As such, McCown has presented evidence that

Soller’s harassment was based on sex.

The Magistrate’s only apparent attempt to

distinguish Quick from this case is in the facts

surrounding the harassment each plaintiff was

subjected to. In Quick, the plaintiff was subjected to

17

“bagging,” or intentionally grabbing and squeezing of

one’s testicles, as well as verbal harassment, and being

labeled a homosexual through name calling. (App. pp.

16-17). In the case at hand, Soller subjected McCown to

grabbing, sexually suggestive remarks, and sexual

touching; (App. pp. 30-34) in addition to having his

waist and chest grabbed; having a tape measure poked

in his crotch while Soller said, “I got your 4-to-6 inches

right here;” and being taunted when McCown made

complaints about it to Soller, by statements such as if

he needed his job he would not complain. (App. pp. 30-

34).

The Magistrate went on to acknowledge that

McCown is not required to explain his harasser’s

motivation for his harassing behavior, although cites

that McCown believed that Soller was trying to irritate

him, and explained in deposition that “that’s just how

Lloyd [Soller] was.” (App. pp. 50) Not knowing enough

about his harasser’s sexual orientation to comment,

McCown had also stated during deposition testimony

that he did not know why Soller was harassing him.

(App. pp. 48, 50) Evidently, the Magistrate concluded

that this lack of “absence of proof that Soller is a

homosexual” necessarily meant that there was no

genuine issue of material fact.

The U.S. Supreme Court and the Eighth Circuit

have repeatedly held that a plaintiff need only to show

that one gender was treated differently than the other

to maintain a sex harassment claim under Title VII.

Oncale, at 80-81; Quick, at 1378. There is no additional

burden of demonstrating that sexual assaults be

accompanied by derogatory remarks about one’s

gender in order to make a case of sexual harassment.

18

cite. McCown has demonstrated the sexual nature of

the assaults Soller subjected him to, and has, therefore,

demonstrated that there is a genuine issue of material

fact that he suffered discrimination because of sex.

Nor, as the Magistrate suggests, does Title VII

prohibit claims where the harassment be directed at

numerous employees of the same gender. Indeed,

discrimination because of sex can occur “where some

men are subjected to offensive sexual touching and

some men are not.” Rene v. MGM Grand Hotel, Inc.,

205 F.3d 1061, 1067 (9 Cir. 2002), citing Oncale, at 81.

Obviously, the vast majority of sex harassment claims

are brought by individual plaintiffs who allege that the

harassment was directed solely towards them. The

Magistrate erred in determining that “(t]he fact that

Soller did not harass all the male co-workers is one

factor in concluding that there is lack of evidence that

he was acting on the basis of discrimination against

men.” And, in fact, no legal basis is cited for the

Magistrate’s determination.

McCown presented evidence that he (a man) was

subject to disadvantageous working conditions (Soller’s

repeated assaults), which women at the SJRHC

projects shop were not. (App. pp. 30-34) As a matter of

law, this evidence creates a fact question as to whether

the conduct was “based on sex.” Quick, at 1378

(“Evidence that members of one sex were the primary

targets of the harassment is sufficient to show that the

conduct was gender based for purposes of summary

judgment.”) As such, summary judgment was

improper.

19

Even if the Court were to determine that the

reasoning in Oncale and Meritor are to be followed by

the lower courts in determining whether to grant

defendant’s motion for summary judgment against

plaintiff, the lower courts in this case incorrectly

applied the reasoning set-out by this Court, in that the

lower courts required McCown to prove that Soller had

not sexually harassed women in the SJRHC workplace.

CONCLUSION

Granting the Petition would afford this Court an

opportunity to speak on two important issues

concerning the burden of proof by plaintiffs in the

summary judgment stage of same-sex sexual

harassment cases, on which the lower courts are

applying hyper-strict burdens that are not in syne with

this Court’s holdings in Oncale v. Sundowner Offshore

Services, Inc., 523 U.S. 75 (1998), and Meritor Savings

Bank v. Vinson, 477 U.S. 57 (1985).

The petition for a writ of certiorari should be

granted.

Respectfully Submitted,

MARINA TRAMONTOZZI

Counsel of Record

JEFFREY M. MERRELL

THE MERRELL LAW FIRM, P.C.

259 SHADOWROCK DRIVE

P. O. BOX 1036

FORSYTH, MISSOURI 65653

(417) 546-6281

Attorneys for Petitioner

la

(Any footnotes trail end of each document)

No. 03-1478

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

James A. McCown, —

Plaintiff-Appellant,

V.

St. John’s Health System, Inc.; Sisters of Mercy Health

System; Lloyd Solar; William Syler; Robert Hammons;

Paul Elmore; John Swope; Robert Norton; St. John’s

Regional Health Center

Defendant-Appellee.

September 11, 2003, Submitted

November 12, 2003, Filed

COUNSEL: For James A. Mccown, Plaintiff -

Appellant: Tina G. Fowler, LATHROP & GAGE,

Springfield, MO. Jeffrey M. Merrell, MERRELL &

LONG, Forsyth, MO. Dianna Coy Long, Columbia, MO.

For St. John Health System, Inc., Sisters of Mercy

Health System, Lloyd Solar, William Syler, Robert

Hammons, Paul Elmore, John Swope, Robert Norton,

St. John’s Regional Health Center, Defendants -

Appellees: Frank M. Evans, III, Tina G. Fowler,

LATHROP & GAGE, Springfield, MO.

JUDGES: Before MELLOY, RICHARD 5S.

ARNOLD, and FAGG, Circuit Judges.

TT

2a

OPINION BY: MELLOY

OPINION: MELLOY, Circuit Judge.

James Christopher McCown (“McCown”) appeals the

district court’s nl entry of summary judgment in favor

of St. John’s Regional Health Center (“St. John’s”) on

sexual harassment claims under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2000), and

the Missouri Human Rights Act, Mo. Rev. Stat. 8

213.010, et seq. (2000). We affirm.

I. Background

McCown was employed by St. John’s as a general

construction worker from October 1994 until April 2001.

Until October 2000, McCown worked in the projects

shop, under the direct supervision of Lloyd Soller n2

(“Soller”). During this time period, Soller subjected

McCown to inappropriate conduct on multiple occasions

including: grabbing McCown by the waist, chest and

buttocks; grinding his genitals against McCown’s

buttocks in simulated intercourse; telling McCown to

“squeal like a pig, or a woman,” and making other lewd

comments; attempting to stick the handle of a shovel

and a tape measure in McCown’s anus; and kicking

McCown in the buttocks. Initially, McCown thought

that Soller was kidding. Although McCown did not

understand what motivated Soller’s behavior, he

speculated that Soller was trying to “irritate” him

because “that’s just how Lloyd was.” McCown

repeatedly asked Soller to stop, but Soller continued to

engage in this offensive behavior.

3a

While both male and female employees worked in the

projects shop with McCown and Soller, the women

primarily worked in the office while the men performed

physical labor in various other locations. Soller,

however, only supervised the men. There is no evidence

in the record that Soller ever sexually harassed any of

the women in the projects shop.

McCown reported Soller’s inappropriate behavior to

Soller’s supervisors on three different occasions.

Dissatisfied with their response, McCown formally filed

a complaint with the EEOC and the Missouri

Commission on Human Rights. Eventually, Soller’s

supervisors conducted an internal investigation and

removed McCown from Soller’s supervision while

giving Soller a disciplinary warning. McCown worked

in seclusion from the other employees in the projects

shop and was placed under the supervision of two

managers. As a result, McCown often received

contradictory job orders. Frustrated by his new

working conditions, McCown resigned from St. John’s

in April 2001.

McCown filed suit against St. John’s alleging same-sex

sexual harassment, disparate treatment because of

gender, retaliation, and constructive discharge in

violation of Title VII and the Missouri Human Rights

Act. The district court granted summary judgment on

each claim. Presently, McCown appeals solely on the

sexual harassment claim and argues that the district

court erred in determining that he failed to state an

actionable claim because he could not demonstrate that

Soller’s conduct was based on sex.

4a

II. Analysis

We review a grant of summary judgment de novo.

Quick v. Donaldson Co., 90 F.3d 1372, 1376 (8th Cir.

1996). A party is entitled to judgment as a matter of

law only if it can show that no genuine issue of material

fact exists. Fed. R. Civ. P. 56(c); Anderson v. Liberty

Lobby Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106

S Ct. 2505 (1986). Summary judgment is to be granted

where the evidence is such that no reasonable jury

could return a verdict for the non-moving party.

Anderson, 477 U.S. at 248. The evidence must be

viewed in the light most favorable to the non-moving

party, and all justifiable inferences are to be drawn in

its favor. Id. at 255; Calder v. TCI Cablevision of

Missouri, Inc., 298 F.3d 723, 728 (8th Cir. 2002).

“Title VII prohibits ‘an employer’ from discriminating

‘against any individual with respect to his

compensation, terms, conditions, or privileges of

employment, because of... sex.” Quick, 90 F.3d at 1877

(quoting 42 U.S.C. § 2000e-2(a)(1)) . Discrimination

based on sex which creates a hostile or abusive working

environment violates Title VII. Id. To state a claim for

sexual discrimination based on a_ hostile work

environment under Title VII, a plaintiff must show: (1)

he belongs to a protected group; (2) he was subject to

unwelcome sexual harassment; (3) the harassment was

based on sex; (4) the harassment affected a term,

condition, or privilege of employment; and (5) his

employer knew or should have known of the

harassment and failed to take proper remedial action.

Id. (citations omitted). The third element, whether

Soller’s harassment was based on sex, is the single

issue on appeal. —

5a

Same-sex harassment claims differ from those between

males and females because the latter “typically

involve[] explicit or implicit proposals of sexual

activity,” which create a presumption that the

underlying conduct was based on sex. Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 140 L.

Ed. 2d 201, 118 S. Ct. 998 (1998). However, this

presumption is applicable only if there is credible

evidence to show that the alleged harasser is sexually

attracted to the plaintiff. Id. Consequently, without this

presumption, a same-sex harassment plaintiff needs

other methods to prove that the conduct was based on

sex. Id.

Oncale, the leading Supreme Court case on same-sex

harassment claims, sets forth three evidentiary routes

by which a same-sex plaintiff can show that the conduct

was based on sex. Id. at 80-81. First, a plaintiff can

show that the conduct was motivated by sexual desire .

Id. at 80. Second, a plaintiff can show that the harasser

was motivated by a general hostility to the presence of

the same gender in the workplace. Id. And third, a

plaintiff may offer direct comparative evidence about

how the harasser treated both males and females in a

mixed-sex workplace. 523 U.S. at 80-81; see also

Elmahdi v. Marriott Hotel Servs., Inc., 339 F.3d 645,

655 (8th Cir. 2003) (in determining whether

discrimination was based on sex, the plaintiff is

required to prove the harasser’s comments were

motivated either by sexual desire, special attention to

plaintiff as a male, or that harasser treated males and

females differently in a mixed gender environment).

Oncale also emphasizes that “whatever evidentiary

route the plaintiff chooses to follow, he or she must

always prove that the conduct at issue was not merely

6a

tinged with offensive sexual connotations, but actually

966

.

constituted ‘discriminaltion] . . . because of . . . sex

Oncale, 523 U.S. at 81 (emphasis and alteration in

original) (quoting 42 U.S.C. § 2000e-2(a)(1)).

There is no evidence in the record to demonstrate that

Soller was homosexual and motivated by sexual desire

toward McCown. Nor is there evidence that Soller was

motivated by a general hostility to the presence of

males in the workplace. Instead, according to McCown,

it appears that Soller was just trying to “irritate” him

because “that’s just how Lloyd was.” Additionally, we

have previously found that crude gender-specific

vulgarity is not, by itself, probative of gender

discrimination. See Linville v. Sears, Roebuck & Co.,

335 F.3d 822, 824 (8th Cir. 2003) (per curiam) (finding

that employer’s backhanding plaintiff in the scretum

and laughing “was probative of crude, gender-specific

vulgarity [but] . . . was not, by itself, probative of

gender discrimination”). Thus, we must consider

whether McCown can offer direct comparative evidence

of how Soller treated males and females in a mixed-sex

workplace to determine if Soller’s conduct was based on

sex.

The key inquiry under Title VII is “whether members

of one sex are exposed to disadvantageous terms or

conditions of employment to which members of the

other sex are not exposed.“ Oncale, 523 U.S. at 30

(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25,

126 L. Ed. 2d 295, 114 S. Ct. 367 (1993) (Ginsburg, J.,

concurring)). In other words, Title VII does not

prohibit workplace harassment unless it is based on

sex. In this case, there is no evidence to demonstrate

that the area of the projects shop in which McCown

7a

worked was a mixed-sex workplace. The only evidence

before us is an affidavit by McCown stating that the

“workplace consisted of both men and women, although

women worked primarily in the offices.” The record

indicates that Soller only supervised the men who

worked outside the office area of the projects shop in

which the women worked. The record is silent as to the

amount of interaction that Soller had with the women in

the office area of the projects shop.

Even if the projects shop did qualify as a mixed-sex

workplace, the only evidence of Soller’s treatment

towards women is found in McCown’s affidavit which

states McCown never knew of Soller sexually harassing

female employees in the workplace. McCown’s express

absence of knowledge is not sufficient to generate a

jury question as to whether Soller’s conduct constituted

“discrimination . . . because of . . . sex.” 42 U.S.C. §

2000e-2(a)(1). -

Although Soller’s conduct was inappropriate and

vulgar, there is insufficient evidence to demonstrate

that Soller’s conduct towards McCown was based on

sex.

Accordingly, we affirm.

Footnotes

nl The Honorable James C. England, United States

Magistrate Judge for the Western District of Missouri,

presiding by consent of the parties under 28 U.S.C.A. §

636(c)(1).

8a

n2 Soller’s name is spelled incorrectly in the district

court’s caption of the case and appears as “Solar.”

9a

Civil Action No. 01-38327-CV-5-JCE

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

SOUTHERN DIVISION

JAMES A. MCCOWN,

Plaintiff,

V.

ST. JOHN’S HEALTH SYSTEM, INC., SISTERS

OF MERCY HEALTH SYSTEM, ST. JOHN’S

REGIONAL HEALTH CENTER, LLOYD SOLAR,

WILLIAM SYLER, ROBERT HAMMONS,

PAUL ELMORE, JOHN SWOPE, and

ROBERT NORTON, CENTER, et al.,

Defendants.

January 21, 2003, Filed

ORDER

Plaintiff has filed a two-count complaint alleging that he

has been a victim of sexual harassment in violation of

Title VII, 42 U.S.C. § 2000e et sec. and the Missouri

Human Rights Act [“MHRA”]. Specifically, he alleges

that his supervisor, Lloyd Soller, caused him to suffer

sexual harassment at defendants’ workplace, and that

he was retaliated against and constructively discharged

as a result. In his amended complaint, plaintiff has

alleged disparate treatment because of gender.

Defendants have moved for summary judgment in this

action. Defendants assert that they are entitled to

10a

summary judgment because plaintiffs claim of sexual

harassment is insufficient as a matter of law. It is

defendants’ position that plaintiff cannot show that any

alleged harassment was because of sex, and that he

cannot show that defendants failed to take proper

remedial action. Defendants also contend that plaintiff's

alleged retaliation claim must fail as a matter of law

because he failed to exhaust administrative remedies

regarding any alleged retaliation claim, and further,

that even if the Court finds that he did exhaust

administrative remedies, he cannot establish that he

suffered a materially adverse employment action. They

assert, further, that he cannot establish that he was

subject to a constructive discharge. Additionally,

defendants assert that with reference to the separate

defendants Soller, Syler, Hammons, Elmore, Swope and

North, his complaint fails as a matter of law because

they are not employers within the meaning of Title VII

or the MRHA and cannot be held individually liable,

and that he failed to exhaust administrative remedies

regarding these defendants. With reference to separate

defendants Sisters and SJHS, defendants assert that

these defendants were not plaintiff's employers within

the meaning of Title VII or MRHA, and that he has

failed to exhaust administrative remedies regarding

them.

In regard to plaintiff's amended complaint, defendants

assert that plaintiff has failed to make a prima facie

showing that their actions were based on illegal

discrimination by showing either the disparate

treatment of plaintiff compared to a similarly situated

co-worker, or an illegal discriminatory reason for their

actions. Defendants assert that plaintiff cannot show

that he suffered illegal discrimination on the basis of

lla

sex nor that they took adverse action against him.

Additionally, defendants contend that plaintiff cannot

show that he was treated differently from similarly

situated females because no similarly situated females

existed.

Standard of Review

Summary judgment is appropriate when there is no

genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c). In ruling on motions for summary judgment, the

Court must give the nonmoving party all reasonable

inferences that can be drawn from the underlying facts.

Fischer v. NWA, Inc., 883 F.2d 594, 598-99 (8th Cir.

1989), cert. denied, 495 U.S. 947 (1990). The nonmoving

party must, however, resist a summary judgment

motion by setting forth specific facts that show there is

a genuine issue of fact for trial. Fed. R. Civ. P. 56(e);

Burst v. Coors, 650 F.2d 930, 932 (8th Cir. 1981). The

motion may then be granted only if there is no

substantial evidence in support of that party’s position.

In the employment context, it is recognized that for a

variety of reasons, “courts have shown an increasing

willingness to make use of the tool of summary

judgment in discrimination cases .. . .” Nancy Gertner,

United States District Court Judge, Changing Times:

Summary Judgment and Employment Law, (1996

Annual Convention Manual of the National

Employment Lawyers Association). The Eighth Circuit

has stated that, although “summary judgment should

seldom be granted in employment discrimination

cases,” Crawford v. Runyon, 37 F.3d 574, 586-87 (8th

Cir. 1994), summary judgment is proper when a

a aaa

12a

plaintiff fails to establish a factual dispute on an

essential element of his case. See Bialas v. Greyhound

Lines, Inc., 59 F.3d 759, 762 (8th Cir. 1995).

To establish a prima facie case that he was subjected to

a hostile work environment based on_ sexual

harassment, plaintiff must show that: 1) he is a member

of a protected group; 2) unwelcome harassment

occurred; 3) the harassment was based on sex; 4) the

harassment affected a term or condition of his

employment; and 5) the employer knew or should have

known of the harassment and failed to take prompt and

effective remedial action. Carter v. Chrysler Corp., 173

F.3d 693, 700 (8th Cir. 1999); Schmedding v. Tnemeck

Co., Inc., 187 F.3d 862, 864 (8th Cir. 1999). In evaluating

plaintiffs claim, the totality of the circumstances must

be considered, including the frequency and severity of

the alleged harassing conduct, whether it is physically

threatening or humiliating, and whether it

unreasonably interferes with an employee’s work

performance. Harris v. Forklift Systems, Inc., 510 U.S.

17 (1993). If a plaintiff establishes that a supervisor

with authority over him created a hostile work

environment, he maybe able to hold the employer

vicariously liable. Faragher v. City of Boca Raton, 524

US. 775, 118 S.Ct. 2275, 2292-93 (1998); Burlington

Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257,

2270 (1998). :

Discussion

Sexual Harassment Claim.

The parties do not appear to disagree regarding the

basic facts of this case, which are primarily set forth in

13a

Defendants’ Suggestions in Support of Their Motion for

Summary Judgment. Essentially, plaintiff contends

that he was subjected to sexual harassment by his

supervisor, Lloyd Soller, when he was employed by

defendants in the projects shop. In October of 1999, he

began having problems with Soller. It is his contention

that Soller “began a pattern of grabbing and making

sexually suggestive remarks to [plaintiff] .. making

comments about plaintiffs genitals and actually

grabbing plaintiff from behind and simulating

homosexual intercourse.” [Exhibit B, p. 33]. He also

contends that Soller told crude jokes and made crude

comments to plaintiff and others, that he was degrading

to him and others, and that Soller frequently flexed his

authority. When asked why Soller was doing these

things, plaintiff stated that he did not know, that he

didn’t know if it was because he was a male, and he

didn’t know if Soller was sexually aroused by plaintiff

or was trying to arouse him. It was his statement that

besides Soller trying to irritate him, he did not know

what his motivation was. He contends that he

complained about the harassment, and was retaliated

against by being criticized for his job performance and

being given demeaning job assignments. Eventually, he

asserts that he was constructively discharged.

In an affidavit submitted by plaintiff in response to

defendants’ motion for summary judgment, he asserts

that there were men and women in the workplace,

although he admits that the women were mainly

working in the office. He states that he never saw

Soller sexually harass any women employees, nor did

he have knowledge that he had ever done so. He also

stated that he did witness Soller sexually harass some

of his other male co-workers. Plaintiff mentioned

14a

incidents beginning about October of 1999 and

continuing until the end of June of 2000. Specifically, he

mentioned that Soller grabbed him by the waist and

chest from behind and made comments such as “hey,

little piggy,” and “hey, sweetie, what kind of work you

going to do today?” [Exhibit A, p. 2]. He stated that by

the end of December of 1999, Soller was touching him

and grabbing him more frequently, and was telling

more dirty jokes around him. Plaintiff stated that Soller

grabbed his buttocks, grabbed him by the waist and

told him to “squeal like a pig,” on two occasions, and

grabbed him by the waist and made pig noises, and

would not stop. Rather, Soller laughed when plaintiff

told him to stop. He stated that Soller grabbed him by

the waist in February and began grinding his genitals

against his buttocks and anus, and on other occasions in

February, grabbed him by the waist. It was his

statement that in March, Soller attempted to stick the

handle of a shovel in his anus, and when plaintiff told

him to stop, Soller replied that if he needed his job, he

would not complain to anyone about it. He stated that

in March, Soller grabbed him by the waist and then

slapped him on the buttocks with his hand; in April he

attempted to stick the end of a tape measure in

plaintiff's anus on two occasions and continued to grab

him by the waist. In May, plaintiff stated that Soller

again grabbed him by the waist and began grinding his

genitals into his buttocks while he was cleaning a

shower, and also kicked him in the buttocks while he

was working on some tile. Plaintiff stated that in May,

he ran out of gas on the way to work, and Soller asked

him if he didn’t know how to suck, because he had heard

he was good at it. Plaintiff complained about an incident

in June when he was digging a hole with four other

employees and one said they needed to dig deeper,

15a

about another 4-6 inches. When Soller overheard them,

plaintiff stated that he shoved the end of his tape

measure in plaintiffs crotch and said, “I’ve got your 4-

to-6 inches right here.” [Exh. A. at 6].

In support of their summary judgment motion,

defendants point to Soller’s admissions that he would

occasionally pat plaintiff on the back, that he put a tape

measure between his legs in the knee area on one

occasion, and that he sometimes told jokes of a sexual

nature. They assert that such actions are “horseplay,”

“juvenile,” and commonplace in some _ circles.

Defendants assert that while the environment in which

plaintiff worked may have been unfriendly and

unprofessional, he has failed to state a Title VII claim

because he has failed to establish that the treatment

was harassment against him because of sex. To be

cognizable, they contend that there must be some other

evidence, such as whether the perpetrator is married, a

homosexual, sexually attracted to the plaintiff, or

motivated by sexual desire in his actions. Because

Soller is married, denied that he ever grabbed plaintiff

in a sexual manner, and only admitted to shaking a tape

measure between plaintiffs legs, at knee level, to get

him to jump, defendants contend that plaintiff has not

produced evidence to support his claim. They also rely

on plaintiff's testimony that he didn’t know why Soller

was acting the way he did, didn’t know if he was

sexually aroused or trying to arouse plaintiff, and did

not know if his actions were based on plaintiff's gender.

Additionally, they assert that Swope testified that

other men with whom he worked, including plaintiff,

stated that they didn’t think Soller was attracted to

them or was homosexual, but rather, that he was just

being inappropriate and trying to irritate them.

16a

As defendants assert, in this case the tantamount issue

before the Court is whether there is a genuine material

issue existing regarding whether the harassment that

plaintiff alleges was based on sex. Courts have

emphasized that workplace harassment is_ not

automatically discriminatory if the words or actions

have sexual content or connotations, but rather, the

conduct must actually constitute discrimination because

of the individual’s sex. E.g., Oncale v. Sundowner

Offshore Services, Inc., 528 U.S. 75 (1998); Scusa v.

Nestle U.S.A. Co., Inc., 181 F.3d 958, 965 (8th Cir.

1999); Quick v. Donaldson Company, Inc., 90 F.3d 1372

(8th Cir. 1996).

In Quick, the Eighth Circuit held that same sex sexual

harassment claims are cognizable under Title VII, and

that the harassment must be based on the plaintiff's

sex. Id. at 1378. In Quick, about 85% of the workforce

was male, and the Court of Appeals found that there

was a genuine issue regarding whether the alleged

harassment was gender based because it could be

reasonably concluded from the record that the male

employees were treated worse than the female

employees. Quick, 90 F.3d at 1379. “The proper inquiry

for determining whether discrimination was based on

sex is whether ‘members of one sex are exposed to

disadvantageous terms or conditions of employment to

which members of the other sex are not exposed.”

Quick, at 1378, quoting Harris v. Forklift System, Inc.,

510 U.S. 17 (1993). The behavior complained about in

Quick included at least 100 occasions of “bagging,”

described as intentionally grabbing and squeezing

another person’s testicles; an assault where plaintiff

was attacked by two co-workers and his testicle was

brutally squeezed; verbal harassment; and being

17a

labeled a homosexual through name calling, having tags

placed on his equipment, and having “queer” written on

his identification card. The Eighth Circuit found that

the district court erred in concluding that the

harassment was not gender based, but rather, was

based on “personal enmity or hooliganism.” Id. at 1379.

Based on the fact that the record only contained

incidents of bagging male employees, the Court found

that a fact-finder could reasonably conclude that men

were treated worse than women, and therefore, that

plaintiff had raised a genuine issue of material fact

regarding whether the alleged harassment was gender

based. Id.

In Oncale, the Supreme Court, in recognizing same-sex

harassment, made clear that “harassing conduct need

not be motivated by sexual desire to support an

inference of discrimination on the basis of sex.” 523 U.S.

at 80. Rather, sex-specific and derogatory terms in a

same-sex harassment case may be found if “the

harasser is motivated by general hostility to the

presence of [the same sex] in the workplace.” Id.

Additionally, a same-sex harassment plaintiff may offer

“direct comparative evidence about how the alleged

harasser treated members of both sexes in a mixed-sex

workplace.” Id. at 80-81. The Court emphasized that, as

in other Title VII cases, the conduct must be severe

and pervasive to create a hostile work environment,

and “so objectively offensive as to alter the ‘conditions’

of the victim’s employment.” Id. at 81. Accordingly,

“male-on-male horseplay” must not be mistaken for

discrimination because of sex. Id. Further, the Court

reiterated that the harassment should be judged based

on the totality of the circumstances, and the “inquiry

requires careful consideration of the social context in

18a

which particular behavior occurs and is experienced by

the target.” Id. The Court, for example, pointed out the

difference between a professional football player’s

working environment, and that of an office secretary.

In insuring that Title VII is not transformed into a

“general civility code” for the workplace, the Court

summarized that courts and juries should consider the:

“surrounding circumstances, expectations, and

relationships which are not fully captured by a simple

recitation of the words used or the physical acts

performed. Common sense, and an _ appropriate

sensitivity to social context, will enable courts and

juries to distinguish between simple teasing or

roughhousing among members of the same sex, and

conduct which a reasonable person in the plaintiffs

position would find severely hostile or abuse.” Id. at 81-

82.

Plaintiff primarily relies on Shepherd v. Slater Steels

Corp., 168 F.3d 998 (7t” Cir. 1999), to support his

contention that Soller’s actions constituted

discrimination on the basis of sex. He asserts that there

is a factual issue regarding whether the harassment

was motivated by some type of sexual desire, and that

plaintiff does not necessarily have to establish that the

harasser was an actual homosexual to create an issue on

this. Plaintiff relies on Shepherd for the proposition

that Soller’s connotations of sexual interest in him

suggest that he might be sexually oriented toward

members of the same sex, and ieaves ample room for

the inference that Soller harassed plaintiff because he is

a man. Depending on the context of the harassment, if

there is room for the inference that the “sexual overlay

was not incidental-that the harasser was genuinely

19a

soliciting sex from the plaintiff or was otherwise

directing harassment at the plaintiff because of the

plaintiff's sex-then the task of deciding whether the

harassment amounts to sex discrimination will fall to

the finder of fact.” Shepherd, 168 F.3d at 1010-011.

Plaintiff distinguishes Johnson v. Hondo, Inc., 125 F.3d

408 (7t” Cir. 1997), the primary decision relied on by

defendants, stating that that decision does not stand for

the proposition that sexual conduct could never give

rise to an inference that the conduct was based on the

victim’s sex. In Johnson, the 7th Circuit held that

vulgar provocations, which have no causal relationship

to the plaintiff's gender as a male, will not alone raise a

material issue regarding the sex-based character of the

harassment. 125 F.3d at 413.

The courts, with no bright line rule, have attemped to

distinguish cases of actual sexual harassment from the

occasional vulgarity and sexual innuendo of coarse or

boorish workers. In an effort not to confuse distasteful

or inappropriate words and actions with deeply

offensive and sexually harassing behavior, courts have

recognized that sexually suggestive horseplay and

locker-room type behavior does not necessarily invoke

the protection of Title VII. The treatment meted out

must have created a hostile work environment because

plaintiff was singled out because he was a male, and the

treatment must have been so severe as to alter the

conditions of his employment in a significant way. See

Mentor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1985). The

Courts have focused on the context in which the

harassment occurs, the objective severity of the

harassment, the intensity and frequency of the

harassment, the sexual content of the behavior, and

20a

whether there is a “relentless sexual tenor to the

harassment,” Shepherd, 168 F.3d at 1011, to determine

if a plaintiff has established that the harassment was

because of sex. Vulgar methods of antagonizing a

plaintiff, horseplay, crudeness, even sexual explicit

conduct do not necessarily lead to the inevitable

inference that the harasser acted because of the

plaintiffs sex.

Although there is a paucity of Eighth Circuit law on the

issue of same-sex harassment, district court cases from

the Eighth Circuit provide guidance for how the Court

should proceed in this case. In Fry v. Holmes Freight

Lines, Inc., 72 F. Supp.2d 1074, 1078-79 (W.D.Mo. 1999),

summary judgment for a dockworker was denied on the

grounds that “persistent sexual propositions, epithets,

and offensive touching engaged in by [plaintiff's] co-

workers suggest that one or all of them may be

oriented toward members of the same sex.” The Court

emphasized that the plaintiff did not have to prove that

his harassers were homosexual, nor did he have to

investigate their sexual history to withstand summary

judgment, an argument made by defendants in this

case. In Fry, however, the Court denied summary

judgment because it found that plaintiff presented

credible evidence that the harassers were homosexual.

“If the conduct directed at [plaintiff] allows the

inference that [he] was harassed because he is a man,

then those acts constitute “credible evidence that the

harasser is homosexual.” Id. at 1077. Evidence relied

upon by the Court in Fry included a co-worker kissing

plaintiff on the neck on a regular basis; throwing him on

the ground and attempting to grab his genitals

approximately once a month; grabbing him by the waist

and pounding him on the buttocks in simulation of

2la

intercourse; another co-worker asking him once a

month if he would “suck his dick,” or “take it in the

ass”; attempting to sit on his lap once a week; regularly

pinching or patting his buttocks; commenting on his

nice ass; and referring to plaintiff as “Sally. He’s

everybody’s bitch.” Id. at 1076-77. Viewing the facts

most favorable to the plaintiff, the Court found there

was a genuine issue for trial regarding whether plaintiff

was discriminated against because he was a man.

In Breitenfeldt v. Long Prairie Packing Co., Inc., 48 F.

Supp.2d 1170, 1172-73 (D.Minn. 1999), the plaintiff, who

worked in a meat packing plant, was subjected to

simulation of anal and oral sex, physical restraints by

whole groups of co-workers, and painful physical

assault on his genitalia. This included forcing and

rubbing a rod used to sharpen knives between his legs,

being held down by groups of men, sometimes in a bin

of raw meat or a trough of blood, and being subjected to

simulated sex acts, being called a fag, and being asked

about his sexual practice. The plaintiff alleged that this

behavior occurred on nearly a daily basis, and that

other male employees were also subjected to the

behavior. The Court found that it was not fatal to

plaintiffs case that the did not know why his co-

workers and one supervisor were acting this way

toward him, another argument defendants assert in this

case. It held, however, that “a reasonable fact finder

could conclude from the sexually explicit quality of the

verbal and physical assaults, especially the frequent

references to homosexual acts, that Plaintiff's gender

was one motivating factor of the offensive behavior.”

Id. at 1176. Recognizing that Title VII is not a “general

civility code,” it found that the facts presented in the

light most favorable to plaintiff, “could support a

22a

fording that Plaintiff was exposed to a sexually hostile

work environment because of his sex, a work

environment so beyond the pale, so beyond the bounds

of decency and propriety, that it could be actionable

under Title VII.” Id.

In this case, having carefully reviewed the evidence in

the light most favorable to plaintiff, the Court finds

that he has failed to raise a genuine issue of material

fact as to whether Soller harassed him because of his

gender. Based on applicable case law, the totality of the

circumstances, and the context in which the behavior

occurred, the Court finds that plaintiff has failed to

establish that he was discriminated against because of

sex. While Soller taunted him and used vulgar words,

accompanied sometimes by sexually-suggestive

gestures, the Court believes that plaintiff has failed to

establish a genuine issue for trial regarding whether

the actions, taken as a whole, in the context in which

they occurred, were because plaintiff was a male.

Although he stated in his affidavit that women also

worked in the projects shop, he acknowledged that the

women primarily worked in the offices. He admits in his

affidavit that he had no knowledge regarding whether

Soller ever sexually harassed women. Nothing in his

affidavit nor his testimony as a whole suggests that his

fellow co-workers in the shop were other than males,

and he admits that some, but not all of them, were

subjected to some of the same kind of treatment that he

endured. The fact that Soller did not harass all the male

co-workers is one factor in concluding that there is a

lack of evidence that he was acting on the basis of

discrimination against men.

23a

Additionally, while the absence of proof that Soller is a

homosexual does not defeat plaintiff's claim, the fact

that there is no evidence that Soller was acting out of

homosexual tendencies is one factor to consider in

determining whether he was harassing plaintiff on the

basis of sex.

Although the law does not require plaintiff to explain

the harasser’s motivation in acting towards him in such

a manner, in this case plaintiff did testify that he

believed Soller’s desire was mainly to irritate him.

[Plaintiffs Deposition, p. 55]. He testified that Soller

told crude jokes and grabbed other co-workers,

although not everyone, and “that’s just how Lloyd

was.” [Depo., p. 52]. In summary, plaintiff complained

about Soller touching him and making obscene sexual

innuendos, telling crude jokes, making vulgar

comments, degrading him and others, and flexing his

authority. Granted that Soller’s actions were

unprofessional, obnoxious, vulgar, and _ even

reprehensible, the Court cannot say that plaintiff has

established that he acted the way he did because of

plaintiff's gender. It cannot be said that Soller’s actions,

while rude and crude, were so objectively offensive that

they went “beyond the pale, so beyond the bounds of

decency and propriety, that [they] could be actionable

under Title VII.” Breitenfeldt, 48 F. Supp.2d at 1172-

73. Accordingly, the Court finds that plaintiff has failed

to raise a genuine issue of material fact that he has

suffered discrimination because of sex. Because he has

failed to establish this essential element of a same-sex

harassment cause of action, defendants’ motion for

summary judgment must be granted.

24a

Disparate Treatment.

In his amended complaint, plaintiff alleges that he was

treated differently than similarly situated female

employees and was subjected to disparate treatment

because of gender. It is his contention that similarly

situated female employees were not subjected to the

sexual comments and touchings to which he was

subjected.

It is defendants’ position that they are entitled to

summary judgment on this claim because plaintiff

cannot make a prima facie showing that the alleged

actions were based on illegal discrimination with an

intent to discriminate, or that there was disparate

treatment of plaintiff when compared to a similarly

situated co-worker. Mann v. Frank, 795 F. Supp. 1438

(W.D.Mo. 1992)(citations omitted). It is their position

that there is no evidence to demonstrate harassment or

discrimination on the basis of sex and no evidence of

adverse employment action by defendants. The Court

has previously ruled that there were no genuine issues

for trial on the sexual harassment claim. As more fully

explained in this opinion, plaintiff has failed to

demonstrate that he suffered any adverse employment

action. Further, defendants assert that plaintiff cannot

show that he was treated differently from similarly

situated females. Based on the record before the Court

in this case, plaintiff has failed to show that any

similarly situated females exist. According to his

affidavit, the project shops females worked in the

offices, and he has no knowledge that Soller sexually

harassed any females. Because plaintiff has failed to

establish that similarly situated females received more

25a

favorable treatment than he did, summary judgment

must be granted on his disparate treatment claim.

Retaliation Claim.

Plaintiff asserts that after he brought the alleged

harassment to the attention of management, he was

retaliated against. Specifically, he complains that he

was given demeaning jobs, that he didn’t think the

supervisors knew what they were doing in their

painting assignments, and that he was separated from

working with some of his co-workers. He admits that he

was removed from working with Soller, and that he had

no change in his hours, pay, or benefits.

To establish a claim of retaliation, an employee must

show that he filed a harassment claim, his employer

subsequently took an adverse employment action

against him, and the action was causally linked to his

protected activity. Scusa v. Nestle U.S.A. Company,

Inc., 181 F.3d 958 (8th Cir. 1999). Defendants assert

that plaintiff failed to allege retaliation in his charge of

discrimination, and that he has therefore failed to

exhaust his administrative remedies with reference to

any retaliation claim. It is plaintiff's position that the

retaliation did not occur until after he filed his claim

with the EEOC.

Assuming for the sake of argument, that the retaliation

claim is properly before the Court, it will be the finding

of the undersigned that plaintiff has failed to establish

that he was retaliated against for complaining about the

alleged harassment. It is his assertion that he was

criticized in his job performance, given negative

evaluations, and given demeaning and harassing job

26a

assignments. The Court fords, however, after fully

reviewing the specifics of plaintiff's complaints and

applicable case law, that none of these acts, even

assuming their truth and a causal relationship, rise to

the level of adverse employment actions under the law.

While plaintiff mainly complains about-his different job

duties and the fact that he was separated from some

people with whom he’d previously worked, there is

nothing about his complaints that suggest that adverse

action was taken against him in retaliation for his

sexual harassment complaints, or that the changes in

duties had a tangible, legally cognizable effect on his

employment. Accordingly, defendants are entitled to

summary judgment on plaintiffs retaliation claim.

Constructive Discharge Claim

Plaintiff also claims that he was constructively

discharged from his employment. Constructive

discharge occurs when an employer deliberately

renders the employee’s working conditions intolerable

and thus forces him to quit his job. Kimzey v. Wal-Mart

Stores, Inc., 107 F.3d 568, 574 (8t” Cir. 1997). Plaintiff

claims that he was forced to resign because of unlawful,

sexually motivated, and discriminatory treatment.

Based on the ruling herein regarding plaintiff's sexual

harassment claim, and based on the record as a whole,

there is no evidence to suggest that plaintiffs working

conditions were so intolerable that he was forced to quit

his job.

Plaintiffs Claims against separate defendants.

Plaintiff has named Soller, Syler, Hammons, Elmore,

Swope, and Norton as separate defendants in this case.

———

27a

Under the law in the Eighth Circuit, co-workers and

supervisors cannot be held individually liable under

Title VII or the MRHA. Lenhardt v. Basic Institute of

Technology, Inc., 55 F.3d 377, 380 (8th Cir. 1995);

Spencer v. Ripley County State Bank, 123 F.3d 690,

691-92 (8th Cir. 1997). Accordingly, plaintiffs claims

against the separate defendants have no legal basis and

should be dismissed.

Plaintiff's Claims against Sisters and SJHS.

Plaintiff has also named Sisters of Mercy Health

System [“Sisters”] and St. John’s Health System

(“SJHS”] as defendants in this case. It is defendants’

position that the only proper defendant should have

been St. John’s Regional Health Center [(“SJRHC”],

plaintiff's admitted employer and the entity named by

plaintiff in his charge to the EEOC and the Missouri

Commission on Human Rights. Plaintiff has amended

his complaint to name SJRHC as the correct party.

Accordingly, no further action is necessary on this

issue. Conclusion

The Court has carefully considered the totality of the

circumstances in this case, and finds that plaintiff has

failed to establish a genuine factual dispute for trial. On

plaintiff's claim of sexual harassment, the Court finds

that there are no material factual disputes and that the

claim is appropriate for summary judgment. On his

disparate treatment claim, summary judgment is

appropriate because he has failed to raise any genuine

issues for trial. On his claims of retaliation and

constructive discharge, plaintiff has failed to establish

that. he suffered any adverse employment action and

those claims fail as a matter of law.

28a

Accordingly, it is

ORDERED that defendants’ motion for summary

judgment be, and it is hereby, granted.

/s/ James C. England

JAMES C. ENGLAND

United States Magistrate

Date: 1/21/03

29a

Case No. 01-3327-CV-S-AE

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

SOUTHERN DIVISION

JAMES C. McCOWN,

Plaintiff,

V.

ST. JOHN’S HEALTH SYSTEM, SISTERS OF

MERCY HEALTH SYSTEM, LLOYD SOLAR,

WILLIAM SYLER, ROBERT HAMMONS, PAUL

ELMORE, JOHN SWOPE, and ROBERT NORTON,

Defendants.

AFFIDAVIT OF PLAINTIFF JAMES

CHRISTOPHER McCOWN

STATE OF MISSOURI _ )

; ) ss.

COUNTY OF TANEY _)

I, James Christopher McCown, Plaintiff herin, being

duly sworn, says:

‘ I am above the age of eighteen (18) years and in

all ways competent to make this affidavit.

2. I am plaintiff in the above styled case in this

court.

3. I was employed by St. Johns and, specifically, -

worked under the direct supervision of Lloyd Soller for

~ 30a

approximately two (2) year, ending in the fall of 2000,

when my immediate supervisor was changed.

4, Under the supervision of Lloyd Soller, I worked

as part of a team of employees in “projects” doing

various construction projects for St. Johns.

5. Our workplace consisted of both men and women

although the women worked primarily in the offices of

our “projects” shop.

6. Although there were women in our workplace, I

never saw Lloyd Soller sexually harass any women

employees, not do I have any knowledge that Soller

ever sexually harassed these women.

is I was personally, sexually harassed by Lloyd

Soller, however, and I witnessed Soller sexually harass

some of my other male co-workers.

8. Around October 1999, I recall Soller grabbing

my waist and chest from behind me on several different

occasions while I was in the shop. He made comments

to me such as. “hey, little piggy” and “hey, sweetie,

what kind of work you going to do today?”

9. Around early November 1999, I had taken time

off work to bow hunt for deer, and before I left Soller

asked me if I was going to find myself. When I

returned from my vacation, Soller grabbed my waist

and chest and told dirty jokes on several occasions.

10. Around the end of December 1999, I noticed

Soller was touching me and grabbing me more

frequently, and started telling more dirty jokes around

3la

me. I began to document the incidents at this time,

because Soller was getting way too “friendly” and he

would not stop.

11. On or about January 3, 2000, Soller grabbed my

buttocks from behind me while I worked in the Cancer

Building. I told him I did not like it and to stop. Soller

laughed.

12. On or about January 7, 2000, Soller grabbed my

body from behind while I worked. I again told him to

stop.

13. Onor about January 17, 2000, Soller grabbed me

by my waist and told me to “squeal like a pig.” I was so

embarrassed by this that I had to leave the area where

I had been working.

14. On or about January 31, 2000, Soller again

grabbed me by my waist.

15. Onor about February 1, 2000, Soller grabbed me

by my waist and made pig noises.

16. Onor about February 4, 2000, Soller grabbed me

by my waist from behind and began grinding his

genitals against my buttocks and anus while was

working. I told him to stop.

17. On or about February 10, 2000, Soller grabbed

my buttocks from behind me while I was bent over

cleaning the shop.

18. On or about February 15, 2000, Soller grabbed

me by my waist, and I told him to stop.

32a

19. On or about February 21, 2000, Soller again

grabbed my waist and I told him to stop.

20. On or about February 25, 2000, Soller grabbed

me by my waist while I was working in Audio/Video,

and I told him to stop.

21. On or about February 29, 2000, Swhile I was

working in the Emergency Room I noticed Soller had a

tape measure in his hand, and I stopped working.

Soller asked me why I stopped working and I told him

that because he was standing behind me, I didn’t trust

him. Soller laughed.

22. Onor about March 8, 2000, Soller grabbed me by

my waist and told me to “squeal like a pig, or a woman.”

23. On or about March 9, 2000, Soller attempted to

stick the handle of a shovel in my anus while I was

working in GNE. I told him to stop, or I would talk to

Bill Syler about it. Soller laughed and said, “yeah

right,” and told me if I needed my job I would not

complain.

24. Onor about March 14, 2000, about five (5) other

and I met with Bill Syler. We discussed Soller’s

behavior and other concerns. Concerning Soller’s

sexual harassment of the male employees, Syler told us

that Soller has had this problem before, ant that he

would “take care of it” and get back to us about the

problem.

Three of the other employees at this meeting

were Lannie Ingram, Chad Monneyham, and Ali

Ibrahim.

33a

25. On or about March 20, 2000, Soller grabbed me

by my waist and then slapped me on my buttocks with

his hand.

26. On or about April 4, 2000, Soller attempted to

stick the end of a tape measure in my anus. I told him

to stop.

27. Onor about April 18, 2000, Soller grabbed me by

my waist.

28. Onor about April 21, 2000, Soller grabbed me by

my waist two (2) more times.

29. On or about April 24, 2000, Soller attamped to

stick the end of a tape measure in my anus while I was

hanging blinds in the MAC Building with another

employee. I told him to stop and to get away from me.

30. On or about April 26, 2000, Soller attempted to

stick the end of a tape measure in my anus while I was

working at. Heatlhtracks with another employee. I

slapped the tape measure away and told him to stop.

31. On or abow: May 5, 2000, Soller grabbed me by

my waist and began grinding his genitals against my

buttocks and anus while I was cleaning the men’s

Shower at the Hammons Building with another

employee. I pushed Soller away and asked, “why can

you leave me alone?” Soller laughed and asked me,

“what are you going to do?”

32. Onor about May 11, 2000, I ran out of gas on my

way to work. When I arrived at work, Soller asked me

“don’t you know how to suck?” I asked him what he

34a

meant by that, and he said he had heard that I was good

at it and I should have sucked some gas out. I got

angry at these comments and left the room.

33. Onor about May 17, 2000, Soller kicked me in my

buttocks while I was working outside on some tile with

another employee.

34. On or about June 28, 2000, four (4) other

employees and I were digging a hole on East Kearny

Street when one of us commented that we needed to

dig deeper, “about another 4-to-6 inches.” Soller

overheard this and said, “I got your 4-to-6 inches right

here,” as he shoved the end of his tape measure in my

crotch. Soller then did the same to another employee. I

told Soller that “I could have gone all day” without him

doing that. Soller laughed.

35. On or about June 19, 2000, I had a meeting with

Bob Hammons, at which time I informed him of Soller

continuing to touch and grab me, as well as other male

employees. I told Hammons about the incident with

the tapes measure the day before, and asked him to do

something about it. Hammons’ response was “oh,

Chris, you’re just mad about being wrote up and put on

probation” (the result of a separate, earlier incident),

I denied that I was mad, and pointed out that

Hammons has known that this problem with Soller had

been going on for nearly one year. Hammons blamed

Soller’s behavior on the fact that we work construction

and that things like Soller’s activity was always going

to occur. Hammons told me to “deal with it.” When I

asked Hammons “What would happen if I was a girl?”

he responded that Soller would be fired, but that I was

35a

not a woman, and if I did not like it, I should “find a new

job.”

I told Hammons that other employees and I had

gone to Syler and told him about Soller’s harassment.

Hammons denied knowing this. I told Hammons that I

knew that another employee who was at the meeting

with Syler had already told Hammons about the

meeting. I complained to Hammons that nothing had

been done by Syler about the meeting we had with him.

36. ON or about October 3, 2000, about four (4) other

employees and I met with Paul Elmore, of Human

Resources, about our complaints against Soller,

including the sexual harassment by Soller. Jon Swope,

Chief Operating Officer at St. Johns, was also at that

meeting. My complaints about Soller were heard, and

Swope responded, starting that he could not “make him

be nice.”

I left the meeting angry because my impression

was that neither Swope, nor Elmore were going to take

action to stop Soller’s sexual harassment of me and

other male employees.

37. I filed my complaint with the EEOC and the

Missouri Commission on Human Rights on or about

October 4, 2000

38. I suffered an injury soon after filing my

complaint and had to miss severa: weeks of work,

followed by light duty work.

39. Upon returning to regular duty, I was required

to work in seclusion from other employees in the

36a

“projects” shop. I was told to report to Bob Hammons

or Robert Norton or Bill Syler for work. I was then

ordered to paint the stairwells from the basement to

the top floor. Once that painting was done, I was told

that I would “start over again.”

40. I worked for several more weeks before I finally

became disgusted with being treated differently that I

quit St. Johns.

41. 1 feel that the individually named defendants

should have helped me resolve my sexual harassment

complaints against Lloyd Soller, but they failed to do

so. Only after I filed my complaint with the EEOC and

MCHR did they take any action, and then I was

segregated from the rest of the “projects” shop work

crews. I feel like they failed me in their official

capacities as employees and supervisors of St. Johns.

Therefore, I believe they should be defendants in their

respective official capacities.

Further affiant sayeth not.

James C. McCOWN, Plaintiff

STATE OF MISSOURI )

) Ss.

COUNTY OF TANEY )

I hereby certify that on the 12th day of November 2002,

personally appeared before me James C. McCown, who

being by me personally sworn, declared that he is the

person who signed the foregoing document, and that

37a

the statement therein contained are true and accurate

according to his best knowledge and belief.

/s/

Notary Public

My Commission Expries 10/26/05

MARLA HARRIS

Taney County

My Commission Expires

October 28, 2005

38a

Case No. 01-3327-CV-S-AE

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

SOUTHER DIVISION

JAMES C. McCOWN,

Plaintiff,

V.

ST. JOHNS HEALTH SYSTEM, SISTERS OF

MERCY HEALTH SYSTEM, LLOYD SOLAR,

WILLIAM SYLER, ROBERT HAMMONS, PAUL

ELMORE, JOHN SWOPE, and ROBERT NORTON,

Defendants

THE DEPOSITION OF JAMES McCOWN,

produced, sworn, and examined on Friday,

August 30, 2002, at 9:00 a.m. of that day, pursuant to

Federal Rules of Civil Procedure and Notice to Take

Deposition at the Law Offices of Merrell & Long, P.C.,

16215 U.S. Highway 160, in the city of Forsyth, County

of Taney, State of Missouri, before Melissa Kay

Hannah, CSR, CCR and Notary Public, in a certain

cause now pending in United States District Court, for

the Western District of Missouri, Southern Division,

wherein the parties are as above set forth; taken on

behalf of the Defendants.

39a

APPEARANCES

For Plaintiff: MR. JEFFREY M. MERRELL

Merrell & Long, P.C.

P.O. Box 1036

16215 U.S. Highway 160

Forsyth, MO 65653

For Defendants: MS. TINA G. FOWLER

Lathrop & Gage, L.C.

P.O. Box 5288

Springfield, MO 65808-4288

Also Present: Mr. Robert Norton

Mr. Paul Elmore

INDEX

Witness: JAMES C. McCOWN

PAGE

Re AIRE CY BG. FOIE vicssccicccsnnncsenesorscnsecnssinsenccctiionse 3

Notorial Certificate and Costs ................sccseessssesseeeeeeee L47

EXHIBITS

DEFENDANTS’ .

EXHIBITS DESCRIPTION IDENTIFIED

1 Staff Combined Job

Description And Performance

Evaluation Form 94

40a

(Original Defendants’ Exhibit Nos. 1 is attached

to the original transcript, and a copy is attached to each

copy of the transcript.)

Phonetic spelling: (ph.)

Exactly as stated: (sic)

JAMES C. MCCOWN,

being first duly sworn to testify the truth, the whole

truth, and nothing but the truth, testified as follows:

EXAMINATION

BY MS. FOWLER:

Q Please state your name for the record.

A James Christopher McCown.

Q And do you go by Chris?

A Yes, ma'am.

Q Chris, my name is Tina Fowler, and we met a

few weeks ago at the depositions -- other

depositions in this case. And as you know, I

represent St. John's and the other defendants

named in this case.

And today I -- I'm here just to really ask you

some questions and find out more about the

claims that you have against the named

defendants.

Ala

Have you ever given your deposition before?

No.

As you notice when you sat in on the other

depositions, the court reporter's going to be

taking down your responses. So, please, try to

make a verbal response to her, yes or no. If you

have any questions at any time or if you don't

understand a question that I ask you, please ask

me and I'll gladly repeat it.

Also, if you want to take a break at any time or,

you know, need something to drink, just let me

know, and I'll be happy to stop the deposition.

Is there any reason that you can't answer the

questions today truthfully? Are you on any kind

of medications or anything like that at this time?

No.

Have you been on any medications in the last

week?

No.

Do you anticipate being on any predications in

the future?

No, not that I know of.

Okay. Are you presently under a doctor's care?

No.

oOo - O& PF

42a

Um, then I'm going to assume that you're going

to be able to answer the questions today to the

best of your ability, is that fair?

Yes.

Okay. Have you reviewed any documents prior

to being here today?

Like dealing with this case?

Yes. Dealing with this case, yes.

Just what my attorney sent me.

Okay. And I don't want to talk with you about

the’ conversations that you've had with your

attorney,

* * *

this may call for legal speculation. But subject to

that, or a legal conclusion, but subject to that

objection you may answer

Can you rephrase that for me?

(By Ms. Fowler) Yes. Why is it today basically,

why was it at the time, and the purpose of us

being here today, that you have a complaint

against St. John's?

MR. MERRELL: same objection.

a ae

43a

Um, there -- there was a problem, and it wasn't

taken care of in my opinion in the right way. And

-- because I complained about the problem, I felt

like I was retaliated against.

And what was -- what is the problem that you're

speaking of?

There was a supervisor that had problems

keeping his hands to himself, and he would tell

some pretty crude jokes and make crude

comments to me and other people.

Okay. When you said he had a hard time keeping

his hands to himself. Why do you think he was

doing that?

I don't know.

When he was telling the rude and the crude

jokes, why do you think he was doing that?

MR. MERRELL: Objection. Calls for

speculation. You may answer.

A

Q

I don't -- I don't know why he was doing it.

(By Ms. Fowler) So you stated that you felt like

you had a problem with a supervisor keeping his

hands to himself, telling crude jokes. Were there

any other problems that you had with that

particular supervisor?

He was degrading to you and other people -- or

to me and other people. I mean, he would -- he

A

Q

44a

would say things that would degrade you to a

point where you felt bad. And -

And -- go ahead

And flexing his authority.

Why do you think be was flexing his authority?

MR. MERRELL: objection. Calls for

speculation. You may answer.

A

For instance, you know, you would say, you

know, stop whatever you're doing, or whatever

he was doing, and be would tap his finger on his

name badge and -- and says, "What are you going

m do? I am the supervisor." Stuff like that.

(By Ms. Fowler) You stated that you felt you

were retaliated against: How were you

retaliated against?

Well, I made a complaint, not just me, several

people made a complaint and -- to other

supervisors, and afterwards that supervisor was

still doing his job, which I don't understated it.

But I was separated from my partners, the

people I worked with everyday and told to do

another job, which was fine. But it was painting.

We had a paint shop.

Okay. And I would start -- they told me to start

down in the basement and work my way upstairs

doing door jams and doors. And none of the

supervisors could figure out what color of paint

45a

they wanted or where they wanted the to start.

They could not work together and figure out

what they wanted me to do.

Do you think that those actions, though, had

anything to do with the fact that you'd brought a

eomplaint?

MR. MERRELL: objection. Calls for

speculation. You may answer.

A

Q

- © FPF 6

I personally believe, yes.

(By Ms. Fowler) And why is that?

Because nobody else was asked to do that. And

there was a paint shop with guys sitting down in

the paint shop.

So there wasn't anyone else in projects that

painted?

Be -- well, there was one guy that painted while

I was on medical leave. But as soon as I came

back, he went back to his partner, and I started

painting.

And who was that?

Laney Ingram.

And Laney was in projects with you?

That is correct.

emia ie ne

46a

Q You stated you were on medical leave. Why

were you on medical leave?

A I had an accident, and I got a concussion and

broke some ribs.

You ever had a broken rib?

No. But I -- but I'm asking you. I mean, is it -

Q Did that affect the jobs that you were given?

A Pardon me?

Q Did that affect the jobs that you were given?

A Yes.

Q And why was that?

A

Q

A

You can't lift anything. You can't -- it affects you

quite a bit.

Q. Okay. Do you have any knowledge of anything

else that was going on at the hospital at the time

with reference to the new CEO and - and

painting that needed to be done?

A I -- I don't know what you're talking about.

Q Do you -- but you do understand as part of

projects you could have been asked to paint?

A That is correct. But the whole: time I was there,

and these other employees were there, that very

Oo - O& FP &

—ATa

seldom happened. There's two employees that

have been in the project shop for at least ten

years.

And very seldom were they ever asked to paint

and especially asked to start in basement and

work their way up. That is why they had a paint

crew to keep on top of that.

In addition to painting, were there any other

jobs that you felt were degrading that you were

asked to do?

None that I can recall, no. And -- and there was

nothing degrading about painting.

Okay. Then I'm sorry, I misunderstood you.

Then why was it that -- that you felt that you

were retaliated against for being asked to paint?

When you're told to start in the basement and

work your up, I said, that sounds like it will take

the rest of the year to do. And they said, exactly.

And who told you that?

It was Bob.

Bob?

Hammons.

You've also named in your complaint some

individual defendants in this case including

Lloyd Solar, William Syler, Robert Hammons

48a

Paul Elmore, Jon Swope and Robert Norton.

Why is it that you're bringing the complaint

against these six individuals?

MR. MERRELL: I object because I think this

may call for a legal conclusion. But subject to that

objection, you may answer.

A Can you re- -- rephrase that for me?

Q (By Ms. Fowler) The six individuals that you've

named in your complaint -

A Yes, ma'am.

Q -- why is it that you've named them in this

lawsuit?

MR. MERRELL: same objection. You may

answer.

A Because I've been to each and every one of them

discussing the problem. When this fast started

out, you know, I wasn't looking to try to get

anybody fired or whatever. I was just looking to

get the problem resolved

Q (By Ms. Fowler) When you say you weren't

trying to get anyone fired, who are you referring

to?

A Lloyd

Q So is it your testimony that these individuals

didn't resolve the problem?

A

Q

49a

They did not resolve the problem, no.

And why did they not resolve the problem?

MR. MERRELL: objection. Calls for

speculation. You may answer.

A

> O© - O& PP

Because he continued with his crude jokes, his --

his hands, his touching, his -- you know,

whatever the -- what all he was doing to me and

other people, he kept doing.

And when you say other people, who are the

other people -

Well, they're -

-- that he was doing this to?

My fellow workers.

Including who?

Well, Ali, Laney, Chad. And I never saw

anything happen with Jay. I never saw him do

anything or say anything negative around Jay.

Okay. Is there anyone else that you recall seeing

him do these things to besides Ali, Laney, and

Chad?

Well, there's other shops, I mean - I mean, be --

pretty much Lloyd. I mean, he'd go up and make

jokes and, you know, grab people. I mean -

A

Q

50a

That you personally witnessed. Is there anyone

else that you personally witnessed Lloyd do

these things to?

Uh, I can't remember. There's Jimmy in the

electric shop. Uh, and there was -- I can't

remember all their names. It's been a while since

I've been there. But, I mean, he would make

jokes and gestures to a lot of people.

When you say gestures, what kind of gestures?

Just uh, touching, grabbing, Telling his jokes. I

mean, that -- that's just how Lloyd was. And he

wasn't that way with everybody.

And why wasn't he that way with everybody?

I don't know,

So what's you're understanding of why he was

acting the way he was acting?

My understanding?

Yes.

MR. MERRELL: Objection. That calls for

speculation, but you can answer.

A

I don't understand what he was going through or

why he was doing what he was. I don't

understand any of it.

5la

(By Ms. Fowler) Was he -- was he doing this to

you because you were a guy?

I don't -- I don't know.

Other than Ali, Laney, Chad, and Jimmy, is

there anyone else that you saw Lloyd touch or

grab?

Not that I can recall. I mean, there was -- I'm

sure there was. But a lot of times we worked

separate from everybody else so -

What -- what -- what was your impression of

what Lloyd was doing? How did you take it?

Wrong.

In what way?

Well, what gives him the right to grab me, to rub

against me and tell dirty jokes the way he was,

and shove rakes and measuring tapes and stuff

like that. That's not his job. That's not -- this is

my body. I don't have to hear that, and I don't

have to feel it or see it.

Do you think that he was doing that because be

was sexually aroused by you?

I don't know why he was doing it.

Do you think be was trying to sexually arouse

you?

52a

MR. MERRELL: objection. I think that calls for

speculation. But you can answer if you know.

A

I don't know why Lloyd was doing the things he

was doing on any of it.

Um, did you have -- get any hearsay information

that Lloyd had done these gestures or touching

and grabbing to other people?

I have -- no.

Okay. Did you ever hear that be -- he did it to

someone else that you didn't see him do?

Yes.

And who was that?

Well, I don't know exactly what this person

meant, but when we went to him to complain,

Bill Syler, we said -- he said that we've had this

problem with Lloyd before, and we will talk to

him, and it will be taken ere of. But I don't know

what all problems he meant we've had with

Lloyd before. He didn't specify. He didn't go into

details. He just said we've had this problem with

Lloyd before.

Okay. What was it about these actions by Lloyd

that -- that made you uncomfortable?

Pardon me?

53a

Q What was it about these actions by Lloyd that

made you -- that made you uncomfortable that -

that -

A You couldn't -

-- about his demeanor that -- that bothered you.

A Well, it made it bard to work. You couldn't think.

Whenever he came in the room, you stopped to

watch to see what he was going to do. You

couldn't -you couldn't concentrate on your job

everyday. He -- he invaded my privacy, my body,

and then threatened me with his authority.

"What are you going to do about it?"

Did he threaten you because you were a guy?

A I don't know why he threatened me, ma'am.

Q Okay. So as you're sitting here today, you don't

have any understanding of what his motivation

was?

A No. Besides to irritate me, no, I don't know.

Q Okay. Do you need to take a break? Are you

doing okay? -

MS. LONG: I think we can take a break and get

these flies out of here.

MS. FOWLER: we've been going for an hour

and -

d4a

(Break in proceedings)

(By Ms. Fowler) I'm going to backtrack a little

bit. You went from the yard into projects,

correct?

Correct.

And who was your initial supervisor when you

went into projects?

Bob Hammons was my -- the head supervisor of

project shop. But Lloyd was who I talked to

everyday. Gave me direction.

So you were told to -- you were to report to

Lloyd?

Yes, Ma'am.

Did you have any information prior to reporting

to Lloyd at that time about Lloyd? Did you know

anything about him?

No, I had none.

Okay. Had you received any prior information

about him harassing anyone?

None.

What were at -- your initial duties when you"

started, in projects?

ants detiblii

55a

Um, a lot of times we built-walls and hung

sheetrock And laid floor tile and ceiling tile and

repaired doors.

Could you be asked to go to a floor and fix

something that was damaged?

A lot of times, yes.

And how would those come about?

You would either receive work order. .. A lot of

times they handed -- Lloyd would just hand

work

56a

42 USC § 2000e-16b

SUBCHAPTER VI--EQUAL EMPLOYMENT

OPPORTUNITIES Sec. 2000e-16b. Discriminatory

practices prohibited

(a) Practices All personnel actions affecting the

Presidential appointees described in section 1219 \\\ of

title 2 or the State employees described in section

2000e-16c of this title shall be made free from any

discrimination based on— \l\ See References in Text

note below.

(1) race, color, religion, sex, or national origin, within

the meaning of section 2000e-16 of this title;

(2) age, within the meaning of section 683a of title 29;

or (3) disability, within the meaning of section 791 of

title 29 and sections 12112 to 12114 of this title.

(b) Remedies The remedies referred to in sections

1219(a)(1) \1\ of title 2 and 2000e-16c(a) of this title—

(1) may include, in the case of a determination that a

violation of subsection (a)(1) or (a)(3) of this section

has occurred, such remedies as would be appropriate

if awarded under sections 2000e- 5(g), 2000e-5(k), and

2000e-16(d) of this title, and such compensatory

damages as would be appropriate if awarded under

section 1981 or sections 198la(a) and 198la(b)(2) of

this title;

(2) may include, in the case of a determination that a

violation of subsection (a)(2) of this section has

occurred, such remedies as would be appropriate if

awarded under section 633a(c) of title 29; and

(3) may not include punitive damages.

(Pub. L. 102-166, title III, Sec. 302, Nov. 21, 1991, 105

Stat. 1088; Pub. L. 104-1, title V, Sec. 504(a)(1), Jan. 23,

57a

1995, 109 Stat. 40.) References in Text Section 1219 of

title 2, referred to in text, was repealed by Pub. L. 104-

331, Gee. 5(a), Oct. 26, 1996, 110 Stat. 4072. Codification

Section was formerly classified to section 1202 of Title

2, The Congress. Amendments 1994--Pub. L. 104-1

amended section generally. Prior to amendment, text

read as follows: “All personnel actions affecting

employees of the Senate shall be made free from any

discrimination based on-- “(1) race, color, religion, sex,

or national origin, within the meaning of section 2000e-

16 of this title; (2) age, within the meaning of section

633a of title 29; or *(3) handicap or disability, within the

meaning of section 791 of title 29 and sections 12112 to

12114 of this title." Effective Date Section effective

Nov. 21, 1991, except as otherwise provided, see section

402 of Pub. L. 102-166, set out as an Effective Date of

1991 Amendment note under section 1981 of this title.

Section Referred to in Other Sections This section is

referred to in sections 2000e-16a, 2000e-16c of this title;

title 2 section 1435.