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Brannum v. Missouri Department of Corrections: EMPLOYMENT - no prima facie Title VII case regarding fellow emplyee comment; no protected conduct

1Judge Colloton and Judge Benton concur in all but the last sentence of footnote
2The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri.
United States Court of Appeals
No. 07-1598
Lola Ann Brannum, *
Appellant, **
Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Missouri Department of Corrections, *
Appellee. *
Submitted: December 10, 2007
Filed: March 3, 2008
Before COLLOTON, BEAM, and BENTON, Circuit Judges.
BEAM, Circuit Judge.1
Lola Ann Brannum appeals from a grant of summary judgment in favor of her
employer, the Missouri Department of Corrections (MDOC), on her retaliation claim
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district
court2 held that Brannum failed to establish a prima facie case of retaliation and,
furthermore, that Brannum did not prove MDOC's proffered reasons for the adverse
employment actions she suffered were a pretext for retaliation. We affirm.
We recite the facts in the light most favorable to Brannum, the nonmoving
party, and give her the benefit of all reasonable inferences. Cherry v. Ritenour Sch.
Dist., 361 F.3d 474, 476 (8th Cir. 2004). Brannum is a correctional officer employed
by MDOC at the Potosi Correctional Center. In the summer of 2003, Brannum
worked in the Special Needs Unit (SNU), a unit for developmentally disabled and
mentally ill inmates.
On June 23, 2003, Brannum was working a shift with a new officer, William
Bjork, when they were approached by Sharon Gifford, the functional unit manager of
the SNU. Gifford asked Bjork whether he was enjoying his SNU placement. Bjork
responded that the SNU was not what he had expected and that he planned to "bid out
of the [SNU]" eventually. Gifford became visibly upset, and told Bjork he could not
continue working in the SNU without special training. Brannum, who witnessed this
exchange, then reminded Gifford that she (Brannum) had worked in the SNU for over
a year without the required SNU training. In response, Gifford allegedly told
Brannum, "[y]ou 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 had no complaints about you." Gifford then went to several other correctional
officers on duty and told them she was removing Bjork from his post. Bjork was
removed from the SNU for the remainder of the day, but he remained assigned to the
unit and returned to work there the following day.
On June 23, Bjork filed a memorandum with Captain Garry Branch describing
his conversation with Gifford and accusing Gifford of sexual harassment. Brannum
signed the memorandum as a witness to the conversation. On June 27, Bjork filed a
3The "soft empty hand" escort is a method of escorting a handcuffed inmate by
holding onto the handcuffs and leading the inmate. According to Superintendent Don
Roper, the "soft empty hand" escort is considered "normal course of business," and
is not a reportable use of force.
formal employee grievance with MDOC Superintendent Don Roper, relating Gifford's
comment and accusing her of sexual harassment and "prejudice towards opposite sex
(men)." Brannum was also listed on this document as a witness to the conversation.
On July 1, 2003, Brannum was on duty in the SNU when an inmate, Bruce
Samson, became upset with her. Brannum asked Officers John Barker, Reuben Cook
and Rodney Beers, also on duty in the SNU at the time, to speak with Samson and
attempt to calm him down. According to Brannum, those officers and Samson briefly
exchanged words and the officers eventually escorted Samson back to his cell using
a "soft empty hand" escort.3 According to Samson, however, the officers roughly
grabbed him by the arm and forced him into his cell, slamming his leg in the cell door
in the process. Samson reported the incident to Sergeant Kelley Brownlee, another
correctional officer, that same day. Pursuant to MDOC policy, officers must
immediately notify a superior about any use of force (other than a soft empty hand
escort or verbal command), fill out a use-of-force report and submit the report to a
supervisor before going off duty. The following day, Sergeant Brownlee notified
Gifford of Samson's allegations after Brownlee determined that none of the officers
on duty at the time reported the incident to a supervisor or recorded it in the control
room log.
MDOC also has a nondiscretionary policy that requires an investigation be
made into any alleged unreported use of force. Pursuant to that policy, MDOC
launched an investigation into Samson's allegations. The day after the alleged
incident, MDOC Investigator Tom King photographed bruises on Samson's arm and
shoulder area and his right thigh. Shortly thereafter, MDOC Investigator Mike
O'Brien interviewed Samson and the officers on duty at the time of the incident, as
well as another inmate, just paroled, who witnessed the incident. The former inmate
corroborated Samson's allegations. Similarly, Officer Cook admitted to O'Brien that
he and the other officers used force against Samson. On August 18, 2003, O'Brien
submitted a final investigative report to MDOC authorities regarding the incident. In
his report, O'Brien concluded that Samson was likely the victim of an unreported use
of force, but was unable to determine whether the force used was excessive. O'Brien
also concluded that Brannum had violated MDOC policy by discussing the ongoing,
confidential investigation with persons inside and outside MDOC, including the
former inmate. On October 16, 2003, Brannum was permanently removed from her
post in the SNU and reassigned to a position as a temporary utility officer.
In October of 2003, Brannum filed an administrative charge of discrimination,
with the Equal Employment Opportunity Commission and the Missouri Commission
on Human Rights, alleging unlawful retaliation. She received a Right to Sue Notice
dated June 15, 2005. On December 2, 2003, George Lombardi, MDOC Director of
the Division of Adult Institutions, issued a formal letter of reprimand to Brannum as
a result of the Samson incident. Brannum was reprimanded for failing to summon a
supervisor during or after the incident, failing to report the use of force, collaborating
to mislead the investigation, soliciting and submitting false testimony to investigators,
providing false responses to investigators, and engaging in unauthorized discussions
about a confidential grievance that was under review. As a result of this letter,
Brannum was prevented from applying for promotions within MDOC for one year.
Brannum filed this action on July 2, 2005, and filed an amended complaint on
July 20, 2005, alleging unlawful retaliation in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-3(a). Brannum contends that MDOC initiated the
investigation into the Samson incident, removed her from her SNU post and
reprimanded her in retaliation for her assistance to Bjork in reporting Gifford's alleged
harassment. MDOC subsequently moved for summary judgment, which the district
court granted. The district court found Brannum could not establish a prima facie case
of retaliation, because she could not have reasonably believed she was objecting to
conduct made unlawful by Title VII. Moreover, the district court found Brannum
failed to rebut MDOC's legitimate, nonretaliatory reasons for its actions. This appeal
For reversal, Brannum argues the district court erred in finding she did not
engage in protected activity by assisting Bjork in reporting Gifford's comments. She
also contends she raised a genuine issue of material fact as to pretext.
We review the district court's grant of summary judgment de novo, Twymon
v. Wells Fargo & Co., 462 F.3d 925, 933 (8th Cir. 2006), and may affirm on any
ground supported by the record. Simpson v. Des Moines Water Works, 425 F.3d 538,
541 (8th Cir. 2005). "'We will uphold the judgment if the evidence, 'viewed in the
light most favorable to the nonmoving party, demonstrates no genuine issue of
material fact exists and the moving party is entitled to judgment as a matter of law.'"
Cherry, 361 F.3d at 478 (quoting Trammel v. Simmons First Bank, 345 F.3d 611, 613
(8th Cir. 2003)).
Title VII's anti-retaliation provision prevents employers from retaliating against
employees who have acted to vindicate their statutorily protected rights by reporting
harassment or discrimination in the workplace. Wallace v. DTG Operations, Inc., 442
F.3d 1112, 1118 (8th Cir. 2006). Thus, an employer may not take adverse action
against an employee because the employee has "opposed any practice made an
unlawful employment practice by [Title VII]," or "made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or hearing under [Title
VII]." 42 U.S.C. § 2000e-3(a). "'The two clauses of this section typically are
described, respectively, as the opposition clause and the participation clause.'" Barker
v. Mo. Dep't of Corr., No. 07-1422, slip op. at 4 (8th Cir. Jan. 24, 2008) (quoting
4Brannum asserts for the first time on appeal that her conduct falls within Title
VII's participation clause and that the district court erred in holding her to the
"objectively reasonable, good faith belief" standard. She contends that this clause
offers absolute protection for any participation in a Title VII proceeding or
investigation, whether or not the participant has an objectively reasonable, good faith
belief that discrimination actually occurred. We decline to address the merits of these
arguments, however, as Brannum did not pursue them before the district court and this
court generally "will not entertain a new argument on appeal from the grant of
summary judgment." Berg v. Norand Corp., 169 F.3d 1140, 1145 (8th Cir. 1999).
While the author of this opinion recognizes that this firmly established precedent has
been disregarded in two instances by this court, see Walker v. City of Kansas City,
Mo., 911 F.2d 80 (8th Cir. 1990); United States v. Lucas, 499 F.3d 769 (8th Cir. 2007)
(en banc), it is nonetheless the correct rule and is applicable here. See Walker, 911
F.2d at 98-99 (Lay, C.J., dissenting); Walker v. City of Kansas City, Mo., 919 F.2d
1339, 1342 (8th Cir. 1990) (Lay, C.J., dissenting from the denial of the petition for
rehearing en banc); Lucas, 499 F.3d at 789-92 (Beam, J., dissenting). See also Jeffrey
Brandon Morris, Establishing Justice in Middle America: A History of the United
States Court of Appeals for the Eighth Circuit, 248 (Univ. of Minn. Press 2007).
Gilooly v. Mo. Dep't of Health & Senior Servs., 421 F.3d 734, 741 (8th Cir. 2005)
(Colloton, J., concurring in part and dissenting in part)).
We analyze Brannum's Title VII claim under the familiar burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which both
parties invoke. Under this analysis, Brannum bears the initial burden of establishing
a prima facie case of retaliation. Buettner v. Arch Coal Sales Co., 216 F.3d 707, 713-
14 (8th Cir. 2000). To do so, Brannum must show that she engaged in statutorily
protected activity, she suffered an adverse employment action, and there is a causal
connection between her involvement in the protected activity and the adverse
employment action that she suffered. Wallace, 442 F.3d at 1119. This court has held
that "a plaintiff employee need not establish that the conduct he opposed was in fact
prohibited under Title VII" to satisfy the first element. Bakhtiari v. Lutz, 507 F.3d
1132, 1137 (8th Cir. 2007). Rather, at least in the opposition clause context,4
Brannum must simply prove she "had a 'good faith, reasonable belief that the
underlying challenged conduct violated [Title VII].'" Id. (alteration in original)
(quoting Buettner, 216 F.3d at 714).
If Brannum succeeds in establishing a prima facie case, a presumption of
retaliatory motive arises and the burden shifts to MDOC to rebut that presumption by
offering a legitimate, nonretaliatory reason for any adverse employment action that
Brannum suffered. Id. If MDOC can do so, the burden shifts back to Brannum to
prove the proffered reason is merely a pretext for retaliation and, ultimately, that
MDOC was actually motivated by retaliatory animus. Buettner, 216 F.3d at 714.
Here, the district court found Brannum could not satisfy her initial burden under
McDonnell Douglas, because she failed to show she engaged in statutorily protected
activity. Brannum contends she did so by assisting Bjork in reporting Gifford's
comment, which Bjork primarily characterized as sexual harassment. The district
court found, however, that this was not protected activity because no reasonable
person could have believed Gifford's single comment amounted to unlawful sexual
We agree that Brannum could not have reasonably believed this comment
violated Title VII's prohibition against sexual harassment in the workplace. The
Supreme Court has repeatedly reiterated that actionable "sexual harassment . . . must
be sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment
and create an abusive working environment.'" Meritor Sav. Bank v. Vinson, 477 U.S.
57, 67 (1986) (quoting Henson v. Dundee, 682 F.2d 897, 904 (11th Cir. 1982)). This
is a high bar, and it requires a showing that "the workplace is permeated with
'discriminatory intimidation, ridicule, and insult.'" Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993) (quoting Meritor, 477 U.S. at 65)). Moreover, "[w]orkplace
conduct is not measured in isolation." Clark County Sch. Dist. v. Breeden, 532 U.S.
268, 270 (2001) (per curiam). Rather, whether a work environment is so hostile or
abusive as to alter the terms and conditions of employment is to be judged in light of
all the circumstances, including the "frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's work
performance." Harris, 510 U.S. at 23.
A recurring theme to be derived from these cases "is that simple teasing,
offhand comments, and isolated incidents (unless extremely serious) will not amount
to discriminatory changes in the terms and conditions of employment." Faragher v.
City of Boca Raton, 524 U.S. 775, 788 (1998) (internal citation and quotations
omitted). Thus, in Breeden, the Supreme Court rejected a Title VII retaliation claim
premised on an employee's contention that she was punished by her employer for
objecting to a single sexually offensive remark made by her male supervisor.
Breeden, 532 U.S. at 269-71. The Court found the employee did not engage in
statutorily protected activity by objecting to the comment, because "[n]o reasonable
person could have believed that the single incident . . . violated Title VII's" prohibition
against sexual harassment. Id. at 271. That logic is equally applicable here. We do
not doubt that Brannum and Bjork were genuinely offended by Gifford's comment,
but "Title VII . . . does not set forth a general civility code for the American
workplace." Burlington N. & Sante Fe Ry. Co. v. White, 126 S. Ct. 2405, 2415
(2006) (internal quotations omitted). Thus, we agree with the district court that the
single, relatively tame comment at issue here is insufficient as a matter of law to
support an objectively reasonable belief it amounted to unlawful sexual harassment.
See, e.g., Meriwether v. Caraustar Packaging Co., 326 F.3d 990, 992-93 (8th Cir.
2003) (finding that a single incident in which a co-worker grabbed the plaintiffemployee's
buttocks and later joked about it in front of her and another co-worker did
not rise to the level of actionable sexual harassment).
5Before the district court, Brannum argued that while the documents she signed
mistakenly characterized Gifford's comment mainly as sexual harassment, she was
trying to object to what she believed was an official MDOC policy of treating male
and female officers differently with regard to SNU training requirements. In her
submissions to this court, Brannum vacillates between arguing that she was objecting
to the disparate treatment of a male co-worker and arguing that she was objecting to
what she believed was MDOC's official, gender-biased policy. We note, however,
that while Brannum may have believed Officer Bjork was being subjected to disparate
treatment, her assertion that she believed Gifford's comment or actions represented an
official MDOC policy finds no support in the record. Indeed, the formal grievance
listing Brannum as a witness specifically states that Gifford "substituted her views
over that of the dep[artment] and then tried subjecting [Bjork] to them based on her
point of view and not the Dep[artment]." (Emphasis added.)
We recognize that Brannum now contends she was actually attempting to object
to what she perceived as disparate treatment of Officer Bjork on account of his gender.5
Even assuming this to be the case, we analyze the reasonableness of Brannum's belief
that she was opposing disparate treatment in light of the applicable substantive law.
See Breeden, 532 U.S. at 270-72. And, in doing so, we find such a belief equally
unreasonable on these facts. Disparate treatment requires, among other things, that an
affected employee have suffered "an adverse employment action under circumstances
that would permit the court to infer that unlawful discrimination was involved." Sallis
v. Univ. of Minn., 408 F.3d 470, 476 (8th Cir. 2005). As our cases have repeatedly
emphasized, however, "[a]n adverse employment action means 'a material employment
disadvantage.'" Id. (emphasis added) (quoting Tademe v. Saint Cloud State Univ., 328
F.3d 982, 992 (8th Cir. 2003)). Thus, we have held that "[t]ermination, reduction in
pay or benefits, and changes in employment that significantly affect an employee's
future career prospects meet this standard." Spears v. Mo. Dep't of Corr., 210 F.3d
850, 853 (8th Cir. 2000). We have also reiterated, however, that "minor changes in
working conditions that merely inconvenience an employee or alter an employee's
work responsibilities do not." Id.
Here, Gifford removed Bjork from the SNU for a few hours at most, and it is
not even clear from the record whether he was actually sent home or was merely
reassigned to another unit for the remainder of the day. In any event, there is no
dispute that Bjork remained assigned to the SNU and returned to work there the
following day. Moreover, nothing in the record indicates Bjork had to undergo any
additional training before returning to the SNU. On these facts, no reasonable person
could have believed Officer Bjork was being subjected to disparate treatment, because
there is no evidence from which a reasonable person could conclude that he had even
suffered an adverse employment action. See, e.g., Talanda v. KFC Nat'l Mgmt. Co.,
140 F.3d 1090, 1097-98 (7th Cir. 1998) (finding plaintiff's subjective belief that his coworker
was the target of unlawful discrimination objectively unreasonable where,
among other things, there was no evidence she suffered anything amounting to an
adverse employment action).
In sum, we agree with the district court that Brannum cannot establish a prima
facie case of retaliation. Having made this determination, we need not consider her
evidence of pretext. Bakhtiari, 507 F.3d at 1138.
For the foregoing reasons, the judgment of the district court is affirmed.


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