Retaliation Case Fails Where No Reasonable Person Could Objectively Believe That Manager's Comments Violated Title VII
John F. Barker, a correctional officer at the Potosi Correctional Center of the Missouri Department of Corrections (MDOC), was appointed shop steward in 2002. As shop steward, it was Barker's job to assist fellow employees with filing grievances. During 2003, Barker worked as an officer in the special needs unit (SNU), which houses inmates with mental diseases and disabilities.
On June 23, 2003, Shannon Gifford, the SNU manager, entered the control room in the SNU and asked Officer William Bjork, who was new to the SNU, if he was enjoying his new placement. Bjork responded that he did not like working in the SNU because the inmates behaved poorly and were different than other inmates he had worked with. Bjork also stated that he had no SNU training. Gifford then told Bjork, in a “commanding voice,” that he could not reenter the SNU without receiving training. A female SNU officer, upon hearing Gifford's statement, stated that she had worked in the SNU for a year but had not received SNU training. Gifford responded, “you don't need the training, women are better by and large as they do a better job than men do anyway and are more patient and nurturing than men and we have no complaints about them.” Despite Gifford's comments, Bjork remained assigned to the SNU until mid-October 2003.
The next day, Barker helped Bjork draft an incident memorandum describing Gifford's comments to the appropriate supervisory authority. Three days later, on June 27, 2003, Bjork filed an employee grievance, drafted by Barker, based on Gifford's comments alleging sexual harassment.
On July 1, 2003, an inmate accused Barker and another officer of using excess force. The inmate complained to the SNU officer whose shift followed Barker's, that Barker and the other officer forced him into his cell and slammed his leg in the door. The inmate told the officer that he had lost his shoe in the struggle, and the officer saw the inmate's shoe outside his cell. The SNU officer also observed bruises on the inmate's shoulders and right thigh. Two other inmates corroborated the injured inmate's story. Barker disputed the inmate's story and noted discrepancies in the age of the inmate's bruises.
According to MDOC policy, “the superintendent/designee shall be immediately notified of any use of force.”MDOC policy requires that use of force reports be filled out and submitted to a supervisor prior to leaving duty. Barker had not filed a use of force report before leaving work, and MDOC has a nondiscretionary policy that requires it to investigate any claim of an unreported use of force. MDOC investigated this incident during July 2003, and the investigator determined that Barker had not reported the use of force but made no determination whether the force used had been excessive.
MDOC policy also requires an annual performance review for each correctional officer. Barker received a rating of unsatisfactory on his 2003 performance review, the lowest possible rating. Barker's review noted that he had thirteen unscheduled absences, he had locked himself out of a major prison entrance, and he had failed to report use of force. As a result of this rating, Barker had to participate in a special employee appraisal. Barker was also found to have attempted to mislead investigators and solicit false testimony. Barker received a five-day suspension for his failure to report use of force.
About two years later, Barker filed the current action alleging that the MDOC violated Title VII of the Civil Rights Act of 1964 by retaliating against him for reporting the alleged sexual harassment of Bjork. The district court granted summary judgment for the MDOC, concluding that no reasonable person would objectively believe that Gifford's comment to Bjork violated Title VII. On appeal, the 8th Circuit affirmed.
Barker v. Missouri Dept of Corrections
The 8th Circuit Court of Appeals’ jurisdiction includes North Dakota, South Dakota, Minnesota, Nebraska, Iowa, Missouri and Arkansas.