8th U.S. Circuit Court of Appeals: Numbers unnecessary in harassment

St. Louis Daily Record & St. Louis Countian, Sep 3, 2008 by Donna Walter

A former civilian employee for the Navy recruiting district office in Kansas City may pursue her sexual harassment claims, the 8th U.S. Circuit Court of Appeals said Tuesday.

But the plaintiff, Gina Jenkins, may not pursue her claims of retaliation or any claims against End to End Inc., the Navy contractor that hired Jenkins. End to End provided technical and administrative workers for the Navy.

When U.S. District Judge Fernando J. Gaitan Jr., of the Western District of Missouri, granted the employers' motions for summary judgment, he based it on the Navy's statement of facts. According to Gaitan, Jenkins' facts were not admissible because Jenkins "failed to specifically controvert in numbered paragraphs" the Navy's statement of facts.

But the 8th Circuit panel said Jenkins wasn't required to reference the specific paragraph numbers under the District Court's local rules. In fact, Jenkins included a "concise listing" of material facts in dispute in her opposition to the Navy's motion for summary judgment, the court said.

"The list contained 37 separate facts set forth in separate paragraphs. Each fact, except one, referred specifically to portions of the record," Circuit Judge Duane Benton wrote for the panel.

The 8th Circuit also found that two affidavits by witnesses for Jenkins should have been admitted to dispute summary judgment.

Although both affidavits include hearsay statements, they also include information based on personal knowledge, the court said. Both witnesses were in the same district Jenkins was in, they contacted Command Managed Equal Opportunity officer about the harassment, and they were in meetings when the harassment was discussed, the court said.

Those affidavits are enough to create a fact question about when the Navy learned about the harassment, the court said. Jenkins had argued the Navy had constructive notice of the harassment, meaning it was so pervasive that the people in command had to have known about it.

The affidavits show that witnesses reported the harassment well before Dec. 4, 2003, when the officers in command held a meeting about Jenkins' allegations. The court noted Jenkins' statement that the harassment ended that day. Following a formal investigation, Jenkins' harasser, Command Master Chief Wesley Jones, was detached for cause on Feb. 23, 2004.

According to the record, Jenkins alleged the harassment began two days after Jones began working in the Kansas City recruitment office. That was in October 2003. She reported his conduct in November. But the evidence in the affidavits could persuade jury that the Navy did not take immediate steps to end the harassment, the court said.

The 8th Circuit, as did Gaitan, evaluated the harassment claims as if the acts were committed by a co-worker and by a supervisor. Jones' status is in dispute.

Jenkins alleged Jones leered at her, told her she was sexy and repeatedly asked her for sex. She also alleged he slipped his hand under her skirt and fondled her leg and inner thigh. It was soon after this incident that she talked with the Command Managed Equal Opportunity officer.

Jenkins also alleged the Navy retaliated at her by isolating her, defaming her and trying to drive her to quit. But those allegations won't be part of any trial because Jenkins failed to brief the retaliation claim in her opening brief, the court said.

In addition, she won't be able to pursue any claims against End to End. Gaitan had granted the contractor's motion for summary judgment at the same time he granted the Navy's motion. Jenkins, however, failed to identify the judge's decision to grant summary judgment for End to End as an issue on appeal.

Cari Franke Walsh, an assistant U.S. attorney, represented the Secretary of the Navy in this case. She could not be reached for comment by press time. Jenkins' lawyer, Basil L. North Jr., of Kansas City, did not return calls for comment.