ABSTRACT: A term, condition, or privilege of employment is affected by sexual harassment when the harassment either creates an intimidating, hostile, or offensive work environment, or results in a tangible employment action. A recent decision from the Missouri Court of Appeals – Eastern District bravely tackled two tough issues: (1) whether a subjectively hostile work environment also qualified as an objectively hostile work environment as a matter of law at the summary judgment stage; and (2) whether an employer’s delay in processing a request for medical leave and its alleged failure to investigate a complaint of discrimination qualified as “tangible employment actions” that could support a claim for sexual harassment.
Appellate Court Affirms Trial Court’s Grant of Summary Judgment in Favor of Employer
In M.S. Bracely-Mosley v. Hunter Engineering Co., the plaintiff argued on appeal that the issue of whether she was subjected to an objectively hostile work environment was not a legal question for the trial court judge to rule on, but instead was a fact issue that only the jury could decide. Ultimately rejecting this argument, the Court of Appeals held that, even though the co-worker’s conduct at issue was in fact intolerable and subjectively caused Appellant harm, as a matter of law, the objective reality was that the harassment was isolated, and Employer did not tolerate it.
Addressing whether Appellant was subjected to tangible employment actions, the Court held the delay in processing a request for medical leave and the alleged failure to investigate a complaint of discrimination were not tangible employment actions that could support a claim for sexual harassment under Missouri law.
Bracely-Mosley worked for Hunter since 2014. She had known her co-worker, David Henke, for nearly 15 years, having worked with him previously at another job. The two did not have any history of problems. Henke worked in the shipping department, which was a separate work area from where Bracely-Mosley worked.
The First Incident
In August 2016, Henke “swiped” Bracely-Mosley’s behind with a cardboard box as she left the breakroom. She responded, “I’m gonna get fired because you’re getting ready to get hit. Don’t touch me”. She told her Supervisor what happened but did not file a formal complaint or grievance. Her supervisor did not report the incident to Human Resources, as she was required to do.
The Second Incident
Five months later, in January 2017, the second and final incident occurred. Henke walked up behind Bracely-Mosley and, when she turned around, his hand was cupped near her left breast. If she had walked forward, her breast would have been in his hand. She jumped back stating, “Don’t touch me.” That evening, Henke texted her, stating “Go home, get some sleep, and you need to stop watching porn.” She reported what occurred to her supervisor the next day. The supervisor spoke to Human Resources, who immediately opened an investigation into this second incident.
When she was interviewed, Bracely-Mosley told Human Resources she did not want Henke to lose his job but believed he should be suspended. She also told Human Resources about the first incident and that she had told Henke to leave her alone. Henke was interviewed by Human Resources, but he was not asked about the first incident. Human Resources spoke with the plant manager and all supervisors, advising Henke was not permitted to be in Bracely-Mosley’s work area.
Hunter completed the investigation, finding Henke sexually harassed Bracely-Mosley. Henke received a disciplinary letter and a one-day suspension. He was prohibited from having contact with Bracely-Mosley and was warned that if he retaliated against her, he would face further disciplinary action up to and including termination. After issuing the disciplinary letter, Human Resources spoke with management to ensure Henke stayed away from her and her work area. Henke served his suspension and later resigned. Bracely-Mosley never had any other communication with Henke and never complained to Human Resources of additional harassment. She remained employed and was never disciplined.
Harm Alleged by Appellant
During the days and weeks that followedthe second incident, the record established Bracely-Mosley lost sleep, the ability to concentrate and focus, cried, was irritable and afraid, and experienced headaches. She felt Henke’s harassment impacted her relationship with her family and claimed a loss of enjoyment of life. She worried about Henke returning to her work area and did not feel safe. She did not want to go to work anymore, for anybody to speak with her, or for her husband to touch her. She became very jumpy.
In late January, Bracely-Mosley sought medical care for stomach cramps, diarrhea, inability to eat, loss of appetite, vomiting, and weight loss. Her doctor recommended medical leave. After encountering initial difficulty getting the requested medical leave approved, she was ultimately approved for leave several weeks after the second incident occurred.
Bracely-Mosley filed suit, claiming she was subjected to sexual harassment, a hostile work environment, and retaliation under the Missouri Human Rights Act. Hunter filed a motion for summary judgment, arguing the alleged sexual harassment did not affect a term, condition, or privilege of employment and that it took appropriate remedial action. The company denied it retaliated, claiming it did not take any adverse employment action against her. The trial court granted Hunter’s motion and Bracely-Mosley appealed.
Appeal of Sexual Harassment Claim
Bracely-Mosley claimed Henke’s harassment affected a term, condition, or privilege of her employment. Under the Missouri Human Rights Act, the Court noted that a term, condition, or privilege of employment is affected by sexual harassment when the harassment either creates an intimidating, hostile, or offensive work environment, or results in a tangible employment action.
Hostile Work Environment
In order to establish this claim, the conduct must be sufficient to create a hostile work environment, both as it was subjectively viewed by the plaintiff and as it would be objectively viewed by a reasonable person. Here, the Court of Appeals noted Bracely-Mosley experienced serious physical and emotional effects after the second incident, which, at the very least, created a genuine dispute regarding whether she subjectively viewed Henke’s conduct as sufficiently severe to create a hostile work environment. The other issue for the Court to determine was whether Henke’s conduct reasonably could be objectively viewed as so severe or pervasive that it altered the conditions of her employment and created a discriminatorily hostile, abusive work environment.
Bracely-Mosley insisted the issue before the Court was strictly a fact issue that is never subject to judgment as a matter of law. The Court conceded that the objective test for a hostile work environment is “generally” or “largely” an issue for a jury to decide but noted that is not always the case. Instead, the issue before the Court involved a legal judgment of what, at a minimum, constitutes a hostile work environment as a matter of law.
Hostile work environments are typically characterized by “day-to-day harassment” and its “cumulative effect.” Those factors were absent in this case. The Court noted Henke’s swiping a cardboard box against Bracely-Mosley’s buttocks as she passed by was separated by five months from his standing close to her with his hand cupped near her breast. It found that the conduct, while unacceptable, lasted only seconds. Similarly, Henke’s text to her on the evening of the second incident was an offensive utterance, but it was not physically threatening and did not subject her to public humiliation. The Court determined the two harassing incidents could not reasonably be described as “severe or pervasive.” They also could not be reasonably construed as having altered the conditions of Bracely-Mosley ‘s employment.
The Court noted both Missouri and federal courts have repeatedly held that the MHRA and Title VII are not to be reduced to “general civility codes” or indiscriminate prohibitions on all “boorish, vulgar, and inappropriate” workplace conduct. The Court concluded Henke’s conduct was intolerable in the workplace and caused subjective harm to Bracely-Mosley. Despite this, it held the objective reality nonetheless was that the harassment was isolated and Employer did not tolerate it. Hunter intervened before the harassment could create an objectively hostile work environment. As a result, the Court affirmed the trial court’s decision granting summary judgment on the hostile work environment claim.
Tangible Employment Action
On appeal, Bracely-Mosley further argued Hunter took tangible employment actions against her by failing to investigate her complaint, interfering with her application for medical leave, and threatening to terminate her employment. The Court also rejected these arguments, holding neither a failure to investigate a complaint nor delaying approval of a leave application can be characterized as a tangible employment action or, in other words, a “significant change in employment status”. The Court also noted no material fact supported the claim that Henke’s harassment somehow caused or contributed to the delay in the approval of the request for medical leave.
Regarding the threatened termination, shortly after the second incident, Bracely-Mosley’s husband and Henke engaged in an altercation in Hunter’s parking lot. At the time, Bracely-Mosley wrote a journal entry that she was informed Employer “cannot have people coming up on the job, and if it happen[s] again that [she] would be fired”. On this point, the Court held, even taking that allegation as true, this was not a threat based on her making a complaint; instead, she had been admonished that she could be fired if her husband came to the job site and engaged in an altercation with Henke in the parking lot again.
As a result, the Court held summary judgment was also appropriate because the harassment alleged did not result in a tangible employment action. Regarding the remaining retaliation claim, the conduct Bracely-Mosley identified as retaliatory was Hunter’s alleged interference with her application for medical leave and threat to fire her. For largely the same reasons that Bracely-Mosley’s allegations of a tangible employment action failed, the Court determined her retaliation claim failed. (Hunter had also argued that the retaliation claim had been waived, but the Court concluded it did not need to decide that issue.)
Here, the employer was able to avoid trial and resolve the litigation at the dispositive motion level, despite the Court’s finding that the employee was subjected to unwanted sexual harassment that caused her subjective harm. This case demonstrates just how important it is that businesses promptly investigate complaints of harassment as soon as they learn about them and follow through with appropriate remedial action. While it would have been better (and subjected the employer to less risk) if the supervisor also reported the first incident to Human Resources, the employer was able to obtain summary judgment here because the two incidents were isolated and occurred five months apart.