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Liles v. C.S. McCrossan, Inc.

United States Court of Appeals, Eighth Circuit

March 21, 2017

Mandy Liles Plaintiff-Appellant
C.S. McCrossan, Inc.; C.S. McCrossan Construction, Inc. Defendants-Appellees

          Submitted: October 19, 2016

         Appeal from United States District Court for the District of Minnesota - St. Paul

          Before GRUENDER, BEAM, and SHEPHERD, Circuit Judges.

          SHEPHERD, Circuit Judge.

         Mandy Liles brought this action against C.S. McCrossan, Inc. and C.S. McCrossan Construction, Inc. (collectively "CSM") asserting a number of civil rights claims. The district court[1] granted CSM's motion for summary judgment and Liles appealed. We affirm.

         I. Background

         CSM is engaged in the construction business and specializes in providing highway and heavy general contracting to various levels of government transportation departments. CSM hired Liles in 2004 following her graduation from college. The first several years of her employment were generally positive, and she was promoted from her original role of project engineer to assistant project manager. During this time, she had a good relationship with Tom McCrossan, the owner of CSM. McCrossan took a personal interest in Liles's career development by taking her to lunch meetings and attempting to introduce her to influential people in the construction industry. Her experience changed toward the end of 2009, however, when she turned down the romantic advances of fellow employee Tom Peterson, Jr. ("Junior"). According to Liles, after this event, Junior made a number of lewd comments to her in person and via email. She reported this conduct to CSM, and the company reprimanded Junior. After that reprimand, Junior's conduct ceased and Liles testified that she had no further communication with Junior after December of 2009.

         Junior's father, Tom Peterson, Sr. ("Senior"), is the Underground Division Manager[2] at CSM, and he was known around CSM as someone who would hold grudges and make people's "lives at work difficult for a long time." Senior was apparently so enraged by the fact that Liles reported his son that Senior thereafter began calling her names such as "rotten" and "tuna fish." Although he never said these things directly to her, Liles claims she heard Senior call her these names to other people between two and five times in a two-year period between 2010 and 2011. The final comment she alleges is that he told another employee to "put the screws to her" in late 2010 or early 2011. Liles did not report these comments to anyone at CSM.

         In 2010, Liles was assigned to work with a woman named Deb Petry on the Devil's Triangle project in Brooklyn Park, Minnesota, on which CSM was contracted to construct bridges across a number of major throughways and a railroad line. Although Petry was certified as a crane operator, she was employed by CSM as a crane oiler.[3] At some point, Petry told Liles that Petry was not getting the training on the lattice boom crane that she was supposed to receive. After Liles reported the issue to both the foreman on the project and a CSM division manager, Petry was still not given training time on the crane. Liles then told McCrossan, and, shortly thereafter, Petry was given training on the crane.

         In the fall of 2010, Liles accepted an offer to be an assistant project manager in charge of Project Controls on the Central Corridor Light Rail Transit ("CCLRT") project. This project was a joint venture between CSM and Ames Construction with the ultimate goal of constructing a transit line between the cities of Minneapolis and St. Paul. Justin Gabrielson, an Ames employee, was assigned as the project manager. On the first day of the project, Gabrielson remarked that "he had never worked with a female" assistant project manager, and he asked Liles if "she was going to cry on him." Over the next few months, Gabrielson made numerous comments[4] about Liles being attractive and asked her on one occasion if she needed a hug. He would also stand in doorways with his arms stretched above his head in such a manner that his stomach was exposed and ask Liles if it aroused her. Liles testified that Gabrielson's inappropriate behavior ceased in February of 2011, and that she reported some incidents of Gabrielson's behavior to McCrossan the next month.[5]

         Around the time that Liles began work on the CCLRT project, Manny Walk became her direct supervisor at CSM. As with Senior, Walk had a reputation for being a difficult supervisor. Walk became involved in the CCLRT project at some point early in 2011, and he quickly noticed that Liles was having difficulties fulfilling many of her job duties. In March, Gabrielson sent an email to Walk noting that Liles broke down in tears and that he felt she was "overwhelmed by the complexity of the job." McCrossan made similar remarks by email to Walk around that same time. As a result, CSM transferred Liles into a position performing field work-a transfer Walk described on April 28, 2011, as "allow[ing] Mandy the opportunity to gain field experience . . . [because] [w]e have recognized that Mandy's skill level is not yet at the position to assume all duties necessary for [the Project Controls role]." In an internal memorandum dated May 2, 2011, Walk described in detail a conversation he had with Liles the day after she was reassigned to the field. In response to a question from Liles during that meeting regarding why she had been removed from her original position, Walk "told her that it was mainly due to work product performance on the project and the inability to trust that she had the relevant skills needed . . . to meet the demands of . . . being Assistant PM." Walk provided Liles with specific examples of deficient performance-including work being completed improperly or late and her failure to follow proper protocols on assignments-and Liles responded that this was the first she had heard about these issues. Walk further noted that he told Liles "that her success lies in her hands and this may be the last opportunity to move ahead in her role with [CSM]."

         Liles's performance deficiencies followed her into her new position in the field. On her "satisfactory" performance review dated June 25, 2011, Walk wrote that no one calls Liles when they have problems, an issue he later described as being indicative of employees not trusting her ability to do her job. By email on November 8, 2011, Walk sent Liles a document titled "Performance Improvement Corrective Action" in which he stated that she was still failing to perform at an acceptable level with respect to many of the issues they had discussed in April and May. The document presented a Corrective Action Plan ("CAP") that required Liles to complete a number of assignments designed to test her ability to perform. Liles signed the document, but she also attached an addendum in which she attempted to refute or explain every performance issue raised by the CAP. The parties dispute whether she properly completed the plan. CSM terminated Liles on January 24, 2012.

         Liles filed a charge of discrimination with the Equal Employment Opportunity Commission, which dismissed the charge and issued a right-to-sue letter on February 13, 2014. Thereafter, Liles filed suit in the United States District Court for the District of Minnesota alleging she experienced "Sex Harassment, Discrimination, [and] Retaliation" in violation of Title VII and "Sexual Harassment, Discrimination, [and] Reprisal" in violation of the Minnesota Human Rights Act (MHRA). After discovery, CSM moved for summary judgment on all six claims, and the district court granted this motion. The court first dismissed Liles's gender discrimination claims by assuming that she could establish her prima facie case, but finding that she had failed to show that CSM's proffered reason for her termination-her failure to sufficiently perform her work duties-was pretext. Next, the court dismissed the harassment claims, concluding that Liles had failed to establish either that the complained-of incidents altered a term or condition of her employment or that the harassment was committed on the basis of her gender. Finally, the court dismissed the retaliation and reprisal claims because the two instances of protected conduct that occurred were too remote in time from the adverse action to support the causation element.

         II. Discussion

         Because Liles appeals the district court's grant of summary judgment to CSM, our review is de novo. Guimaraes v. SuperValu, Inc., 674 F.3d 962, 971 (8th Cir. 2012). After viewing the facts in the light most favorable to Liles as the non-moving party, we will affirm if "there is no genuine dispute as to any material fact and [CSM] is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In her notice of appeal, Liles challenges the district court's grant of summary judgment on all six of her original claims. However, in her brief, Liles does not make distinct arguments with respect to her claims for sexual harassment and gender discrimination under the MHRA.[6] At any rate, Minnesota generally follows the federal courts' analysis on these two ...

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