1

The Honorable Harry F. Barnes, United States District Judge for the Western

District of Arkansas. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-2952

___________

Mytosha Merritt, *

*

Plaintiff/Appellant, *

* Appeal from the United States

v. * District Court for the 

* Western District of Arkansas.

Albemarle Corporation, *

*

Defendant/Appellee. *

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Submitted: May 18, 2007

Filed: August 6, 2007

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Before WOLLMAN, BRIGHT, and JOHN R. GIBSON, Circuit Judges. 

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WOLLMAN, Circuit Judge.

Mytosha Merritt appeals from the district court’s1

 order granting summary

judgment in favor of Albemarle Corporation (Albemarle), on her claim that she had

been constructively discharged in violation of the Arkansas Civil Rights Act of 1993,

Ark. Code Ann. § 16-123-101, et seq. We affirm. 
2

Merritt does not appear to advance this theory on appeal. Instead, she argues

that there is a danger of moving machine parts and a risk of exposure to sulphuric

acid.

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I.

Merritt worked for Shaw Group, Inc. (Shaw), an employee leasing company.

After working for approximately four months as a general laborer, she was assigned

to work at Albemarle’s brine plant as a lubrication technician in the lubrication

subgroup of Albemarle’s Predicative Maintenance/Preventive Maintenance Group

(PM/PD Group). The PM/PD Group was responsible for maintaining equipment such

as pumps and compressors. The lubrication subgroup was responsible for changing

the oil in the pumps and other equipment. Sometimes changing the oil would require

two individuals; sometimes it would require only one. 

In the lubrication subgroup, Merritt worked with Eric Eades, another individual

from Shaw, and Greg Dodson, an Albemarle employee. Both Merritt and Eades were

lubrication technicians. Dodson was a reliability technician. Merritt considered Eades

to be an unsafe worker because, when changing the oil on equipment (including

sulphuric acid pumps), Eades sometimes neglected to lock out and tag out the

machine. Dodson and the individual in charge of the PM/PD Group, Jason Bitting,

testified in their depositions that the lock-out/tag-out procedure involves cutting off

the energy to a machine. The procedure prevents equipment (many of the machines

are automated) from restarting automatically and moving unexpectedly, which could

catch an employee by surprise. Bitting acknowledged that exposure to sulphuric acid

was within the range of possible hazards if something unexpected and out of the

ordinary occurred. In her deposition, Merritt contended that failing to perform the

lock-out/tag-out procedure is “very dangerous” because “pressure could build up,

chemicals could leak, burn up a pump or burn up a compressor, anything.”2

 Merritt

testified that it was sometimes necessary to not follow the procedure. On such

occasions, permission was required, as well as knowledge of “what was going on with
3

Apparently, Eades had been told by an operator that it was not necessary to

lock out or tag out that particular pump. 

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that particular piece of equipment.” Merritt acknowledged that she had sometimes

changed oil on machines without first locking out or tagging out the equipment, but

contends that she had been granted permission to omit the procedure. Others,

including Eades and Eades’s predecessor, had also omitted the procedure with

permission. Merritt could recall four or five occasions on which Eades, lacking

permission, omitted the procedure. When Merritt worked with Eades, she would try

to double-check to see if the equipment had been locked and tagged out. She was

unable to do so on every occasion, however, because she and Eades would sometimes

be separated by a short distance when they worked together. 

On one occasion, Merritt refused to perform a task because Eades had not

locked out or tagged out the equipment.3

 Dodson spoke with Eades and told him to

lock out and tag out the machine. Eades complied. There is nothing in the record

indicating that Eades had failed to comply with the lock-out/tag-out procedure

thereafter. 

Approximately three or four months after Merritt had started in the lubrication

subgroup, Dodson began making unwelcome sexual advances toward her. When she

resisted these advances, Dodson threatened to contact her supervisors at Shaw and

have her fired. In the face of this pressure, Merritt succumbed, and they had sexual

relations. On numerous subsequent occasions, Dodson continued to pressure Merritt

to have sexual relations with him, threatening her job and threatening to assign her to

work with Eades, whom he knew Merritt considered dangerous. Merritt testified that

when she resisted Dodson’s advances he would assign her to work with Eades.

Although Merritt and Eades were the only two lubrication technicians, Dodson would

occasionally change the oil on equipment as well. Consequently, on tasks requiring

two people, Dodson could have assigned himself to work with Merritt or Eades, thus
4

The district court assumed for purposes of the summary judgment motion that

Albemarle was Merritt’s employer. 

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preventing Merritt from having to work with Eades. Merritt also testified that she

could elect to work alone (presumably leaving Dodson to work with Eades on twoperson jobs) unless Dodson chose to intervene and assign her to work with Eades,

which he did on a regular basis. 

Merritt was distraught over her situation and began to take up drinking. She did

not tell anyone about the harassment until June 16, 2004, when she told Bitting that

Dodson had been pressuring her to have sex with him. When Bitting asked Merritt

whether she wanted to tell Shaw about this, Merritt declined, stating that she was not

emotionally capable of doing so. Merritt then walked out and never returned. 

Merritt filed this action against Albemarle and Dodson in the Circuit Court of

Columbia County, Arkansas. The case was subsequently removed to federal district

court under 28 U.S.C. §§ 1441(a) and 1332(a), and Dodson was dismissed from the

case. The district court granted Albemarle’s motion for summary judgment,

concluding that because there was no evidence that Dodson was Merritt’s supervisor

or that Albemarle knew or should have known of Dodson’s alleged conduct,

Albemarle was entitled to judgment as a matter of law.4

 

II.

We review the district court’s order granting Albemarle’s motion for summary

judgment de novo. Ferguson v. United States, 484 F.3d 1068, 1072 (8th Cir. 2007)

(citation omitted). Summary judgment is appropriate when the evidence viewed in the

light most favorable to the nonmoving party presents no genuine dispute of material

fact and the moving party is entitled to judgment as a matter of law. Fischer v.

Andersen Corp., 483 F.3d 553, 556 (8th Cir. 2007).
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Although Merritt’s claim is based on Arkansas law, we review cases arising

under the Arkansas Civil Rights Act of 1993 in the same manner as Title VII claims.

Henderson v. Simmons Food, Inc., 217 F.3d 612, 615 n.3 (8th Cir. 2000) (citation

omitted); Island v. Buena Vista Resort, 103 S.W.3d 671, 675-76 (Ark. 2003) (stating

that Arkansas courts will look to “Title VII and federal cases interpreting Title VII for

guidance on sexual-harassment claims brought pursuant to the Arkansas Civil Rights

Act”). Merritt must show that she was “‘subjected to unwelcome sex-based

harassment that was sufficiently severe or pervasive to alter a term, condition, or

privilege of her employment.’” Cheshewalla v. Rand & Son Constr. Co., 415 F.3d

847, 850 (8th Cir. 2005) (quoting Joens v. John Morrell & Co., 354 F.3d 938, 940 (8th

Cir. 2004)), cert. denied, 546 U.S. 1091 (2006). 

If this threshold is met, we must determine whether Dodson was a co-worker

or a supervisor. If Dodson was a co-worker, Merritt must show that Albemarle

“‘knew or should have known of [Dodson’s] conduct and failed to take proper

remedial action.’” Joens, 354 F.3d at 940 (quoting Dhyne v. Meiners Thriftway, Inc.,

184 F.3d 983, 987 (8th Cir. 1999)). If, however, Dodson was Merritt’s supervisor,

Albemarle “is vicariously liable for the harassment unless it can establish the

affirmative defense defined” in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765

(1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998). Id.

“[T]o be considered a supervisor, ‘the alleged harasser must have had the power

(not necessarily exercised) to take tangible employment action against the victim, such

as the authority to hire, fire, promote, or reassign to significantly different duties.’”

Weyers v. Lear Operations Corp., 359 F.3d 1049, 1057 (8th Cir. 2004) (quoting Joens,

354 F.3d at 940). The fact that an alleged harasser may have been a “team leader”

with the authority “to assign employees to particular tasks” will not be enough to

make that person a supervisor. Id. (holding that the fact that the alleged harasser may

have been a team leader who was responsible for ensuring that an assembly line ran
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according to schedule and assigned tasks on the line – which had an impact on the

employees’ training – was not enough to make that person a supervisor). 

Dodson lacked the authority to take such tangible employment actions as hiring,

firing, or promoting Merritt. Nor could he assign her to significantly different duties.

In other words, Dodson was not empowered to effect “a significant change in

[Merritt’s] employment status,” and lacked the authority “to make economic decisions

affecting other employees.” Pa. State Police v. Suders, 542 U.S. 129, 144 (2004)

(quotation omitted). His authority was restricted to assigning Merritt to work on

various tasks that were part of her work duties; sometimes with Eades. This authority,

which was no greater than that possessed by the team leader in Weyers, was not

sufficient to make Dodson a supervisor. 

Merritt contends that Dodson was a supervisor because he had the power to

assign her to work with an unsafe co-worker. In making this argument, she relies

upon the Supreme Court’s decision in Suders, which quotes language from the First

Circuit suggesting that giving someone “‘an extremely dangerous job assignment to

retaliate for spurned advances’” may constitute a tangible employment action. Suders,

542 U.S. at 150 (quoting Reed v. MBNA Mktg. Sys. Inc., 333 F.3d 27, 33 (1st Cir.

2003)). Merritt thus contends that Dodson was her supervisor because he had the

power to take tangible employment action against her by giving her the “extremely

dangerous job assignment” of working with Eades. This argument is unavailing.

Merritt offers no support for the suggestion that scheduling her to work with Eades

should be considered a job assignment (extremely dangerous or otherwise) triggering

vicarious liability on the part of Albemarle, rather than a mere assignment to particular

tasks. There is no indication, for example, that Dodson’s assignments were

“documented in official company records” or were “subject to review by higher level

supervisors.” Id. at 144-45 (quotation omitted), which are circumstances that typically

accompany a tangible employment action. Accordingly, even if a hazardous job

assignment may, in some cases, constitute a tangible employment action indicative of
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supervisory authority (a question we need not resolve today), we are not convinced

that Dodson’s authority to assign Merritt to work on tasks with Eades sufficed to make

him a supervisor. We note, moreover, that the language upon which Merritt relies was

dicta in both Reed and Suders, as in neither case was the quoted language material to

the resolution of the issues before those respective courts. In light of the foregoing,

we conclude that Suders does not support Merritt’s contention that Dodson was her

supervisor. Moreover, because Dodson was simply a co-worker, Merritt’s other

citations to Suders do not materially assist her. Cf. Suders, 542 U.S. at 143 n.6

(“Ellerth and Faragher expressed no view on the employer liability standard for coworker harassment. Nor do we.”). 

Merritt also suggests that she was not afforded the opportunity to conduct

discovery pertaining to various factual issues that Albemarle discusses on appeal,

arguing that these matters were neither raised by Albemarle’s motion for summary

judgment nor addressed by the district court. We reject this argument. Although the

factual issues relevant to this appeal could have been articulated with greater fullness

and specificity, we believe that they were sufficient to apprise Merritt whether further

discovery would have been helpful. Finally, we reject Merritt’s invitation to adopt a

broader definition of supervisor, as this court has already settled upon the definition

reflected in Joens. 

In sum, under Weyers, Dodson’s authority to assign Merritt to particular tasks

was not sufficient to make him a supervisor. Accordingly, because Dodson was not

her supervisor, Merritt was required to show that Albemarle either knew of or should

have known of Dodson’s conduct. Since there is no evidence to this effect, summary

judgment was appropriate.

The judgment is affirmed. 

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