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Recio v. Creighton University: EMPLOYMENT - no prima facie showing of retaliation; no materially adverse actions

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-2460
___________
Roxana Recio, *
*
Appellant, **
Appeal from the United States
v. * District Court for the
* District of Nebraska.
Creighton University, *
a Nebraska Nonprofit Corporation, *
*
Appellee. *
___________
Submitted: December 10, 2007
Filed: April 8, 2008
___________
Before LOKEN, Chief Judge, WOLLMAN, and SHEPHERD, Circuit Judges.
___________
SHEPHERD, Circuit Judge.
Appellant Roxana Recio filed this action, alleging that her employer, Creighton
University, retaliated against her for filing a discrimination charge. Creighton moved
for summary judgment, asserting that Recio had failed to demonstrate the materially
adverse action and causation elements of a prima facie case of retaliation and that,
even if she had, there was no evidence that Creighton’s legitimate explanations for the
1The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
-2-
alleged acts of retaliation were a pretext for retaliation. The district court1 granted
summary judgment to Creighton, and Recio appeals. We affirm.
I.
Creighton University is a private university in Omaha, Nebraska. In 1994,
Creighton hired Dr. Roxana Recio as an Associate Professor of Spanish in the
Department of Modern Languages and Literatures (the “Department”) in the College
of Arts and Sciences (the “College”). Recio is of Spanish origin and a naturalized
citizen. Creighton also hired Recio’s husband, Dr. Enrique Rodrigo, as a Spanish
professor. In 1998, Recio was granted tenure as an Associate Professor. As of the
time this court heard oral argument in this case, both Recio and her husband retained
their positions at Creighton.
In January 2001, members of the Department, including Recio, interviewed
Michelle Evers, a candidate for a Spanish professorship. Recio and Evers then
engaged in email correspondence that continued from January 2001 to April 2001.
Creighton hired Evers; she began teaching in August 2001. Two-and-a-half years
later, on February 10, 2004, the Spanish faculty held a section meeting that was
attended by both Recio and Evers. On February 12, 2004, Recio made a written
complaint about Evers’s behavior at the meeting as well as problems that Recio was
experiencing in the Department. On February 18, 2004, Evers sent a letter to the dean
of the College, stating that she had received “inappropriate and offensive”
communications from Recio. The communications referenced by Evers consisted of
some of the emails Recio had sent Evers from January to April 2001.
-3-
On March 17, 2004, Evers formally complained to Creighton that Recio had
sexually harassed her, alleging that: (1) in 2001, shortly after Evers interviewed for
employment as a faculty member at Creighton, Recio sent her a series of “obsessive,
stalker-like” email communications and made “inappropriate advances . . . of a strong
sexual nature”; (2) when Evers ended email contact with Recio, Recio “repeatedly and
relentlessly tried to re-initiate contact”; and (3) Evers believed that the portion of
Recio’s February 2004 complaint concerning Evers was in retaliation for Evers’s
refusal to communicate with Recio. Pursuant to Creighton’s policies and procedures,
a four-person Sexual Harassment Committee (the “Committee”) heard evidence and,
on April 22, 2004, issued a report to Creighton’s president, Rev. John Schlegel, S.J.
(“Fr. Schlegel”). The Committee recommended that Recio’s employment be
terminated. Although Fr. Schlegel concluded that the Committee’s report had
“substantial merit,” he did not terminate Recio. Rather, on May 12, 2004, Fr. Schlegel
placed Recio on probation until May 31, 2005, conditioning her continued
employment on Recio: (1) having no communication or contact with Evers; (2)
making no statements to others about Evers; (3) completing a program of
psychological counseling, approved by the Dean and at her own cost, “for a period of
one year ending May 31, 2005”; (4) attending an educational program, also approved
by the dean, “dealing with issues of communication, appropriate interaction with
others, teamwork, etc.”; and (5) submitting to close monitoring and documentation of
her conduct in the classroom, attendance at classes, scheduling and maintaining of
office hours for students, and her interactions with faculty throughout the year of
probation.
Recio and her husband spent the summer of 2004 in Spain, as they had done
every summer for the 10 years they had been at Creighton. On July 14, 2004, Recio
dual-filed with the Nebraska Equal Opportunity Commission (“NEOC”) and the Equal
Employment Opportunity Commission (“EEOC”), alleging that Creighton’s
imposition of probation was based on her Spanish national origin. Creighton received
notice of the complaint on July 26, 2004. On August 9, 2004, Creighton wrote Recio
2When a claimant dual-files with the NEOC and the EEOC, he or she can write
to the EEOC and request a substantial weight review within 15 days of the NEOC’s
decision. See http://www.neoc.ne.gov/faq/faq.htm (last visited Apr. 1, 2008). The
EEOC will then examine the case and render its determination. See id. Here, the
record provides no indication that Recio requested an EEOC review.
-4-
to notify her that, because she could not commence the counseling program specified
by the terms of her probation while she was in Spain, the one-year program would
begin upon her commencement of the program after her return.
On April 15, 2005, when College faculty were to receive their employment
contract for the following year, the dean notified Recio that her contract would be
delayed because he needed to confer with general counsel as to the appropriate form
of her contract as a result of her probationary status. On April 22, 2005, the dean sent
Recio a new employment contract that required her agreement to the terms of the
August 9, 2004 letter regarding the duration of the counseling program. The dean also
noted that, because Recio was again planning to spend the summer of 2005 in Spain,
her one-year counseling requirement would not be completed until she resumed
counseling upon her return from Spain. Recio, through counsel, objected to the
contract’s language, and an agreement was reached in which Recio’s employment
contract stated only that she was “on probation through May 31, 2005.” A separate
letter agreement addressed the counseling requirement.
On May 10, 2005, Recio dual-filed a second complaint with the NEOC and the
EEOC, alleging that Creighton had retaliated against her for filing the July 2004
discrimination charge. Recio completed her probation on May 31, 2005, with no
violations. On June 15, 2005, the NEOC, having completed its investigation of the
July 2004 discrimination charge, issued a Determination of No Reasonable Cause,
stating that “[t]here [was] no evidence to show that the level of discipline was based
on [Recio’s] national origin.”2 On May 3, 2006, the NEOC terminated the processing
of the retaliation charge and, at Recio’s request, issued a right-to-sue letter.
-5-
Recio filed this action on May 10, 2006, alleging that Creighton retaliated
against her for the filing of the July 2004 discrimination complaint in violation of Title
VII of the Civil Rights Act of 1964 (“Title VII”). 42 U.S.C. §§ 2000e to 2000e-17.
Recio seeks injunctive relief prohibiting Creighton from discriminating against her for
engaging in conduct protected by Title VII, damages in excess of 0,000, and other
relief. Recio’s complaint alleges 21 acts of retaliation but she does not challenge the
process Creighton used that resulted in her discipline for alleged misconduct or raise
any issue of discrimination based on her national origin. The district court divided the
alleged retaliatory actions into acts that preceded Recio’s retaliation charge and those
that followed the charge. However, we note that, in determining whether Creighton
retaliated against Recio for filing the July 2004 discrimination complaint, the basis of
this Title VII action, it is the date of the July 2004 complaint, not the May 2005
retaliation complaint, that is key.
The district court granted Creighton’s motion for summary judgment, finding
that Recio failed to show two of the three elements of a prima facie case of retaliation:
(1) the materially adverse element–that a reasonable employee would have found the
allegedly retaliatory actions to be materially adverse and (2) the causation
element–that Creighton’s allegedly retaliatory actions were causally linked to her
protected conduct. The district court further found that, even if Recio had
demonstrated a prima facie case, Creighton had offered legitimate reasons for each
of the 21 allegedly retaliatory actions, and Recio had not provided any evidence that
Creighton’s reasons were pretexts for retaliation. Recio brings this appeal.
II.
On appeal, Recio contends that the district court erred in granting summary
judgment to Creighton because she demonstrated a prima facie case of retaliation and
made a showing of pretext, rebutting Creighton’s stated legitimate reasons for the
allegedly retaliatory actions. Recio further claims that the district court erred by
-6-
failing to identify the significant number of disputed issues of material fact present in
this case; resolving factual disputes in Creighton’s favor by inappropriately drawing
factual inferences and determinations of credibility in a light most favorable to
Creighton; and applying a standard of review improperly slanted in favor of
Creighton. We review the district court’s grant of summary judgment de novo, taking
the evidence in the light most favorable to Recio, as the nonmoving party. Harris v.
Brownlee, 477 F.3d 1043, 1046 (8th Cir. 2007).
III.
Title VII prohibits retaliation against employees who initiate or participate in
a proceeding or investigation that claims their employer violated Title VII. 42 U.S.C.
§ 2000e-3(a). Under the McDonnell Douglas burden-shifting framework, Recio must
first demonstrate a prima facie case of retaliation. Hughes v. Stottlemyre, 506 F.3d
675, 678-79 (8th Cir. 2007) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-03 (1973)). “A prima facie case of retaliation requires showing that: (1) the
employee engaged in protected conduct; (2) reasonable employees would have found
the challenged retaliatory action materially adverse; and (3) the materially adverse
action was causally linked to the protected conduct.” Brenneman v. Famous Dave’s
of Am., Inc., 507 F.3d 1139, 1146 (8th Cir. 2007). Upon a prima facie showing, “a
presumption of retaliation arises, and the burden of production shifts to the employer
to advance a legitimate reason for the employment action.” Hughes, 506 F.3d at 679.
If the employer does so, “the presumption drops out and ‘the trier of fact proceeds to
decide the ultimate question: whether plaintiff has proven that the defendant
intentionally discriminated against the plaintiff.’” Id. (quoting Ryther v. KARE 11,
108 F.3d 832, 836 (8th Cir. 1997) (en banc)). However, “[t]he ultimate burden of
persuasion remains with the employee to show the adverse employment action was
motivated by intentional retaliation.” Id.
-7-
The first element of Recio’s prima facie case of retaliation has been met here
because she filed a charge of national origin discrimination against Creighton in July
2004. The second element, the materially adverse element, is disputed. On appeal,
we can discern nine actions that Recio claims Creighton engaged in and are materially
adverse: (1) extending the duration of the counseling requirement of her probation in
August 2004 and April 2005; (2) requiring that she maintain a Monday, Wednesday,
and Friday (“M-W-F”) teaching schedule; (3) shunning by faculty; (4) failing to
provide her prior notification of a vacancy in the Spanish faculty; (5) keeping the
temperature in her office too cold; (6) requiring her to acknowledge her probation in
her employment contract; (7) failing to assign her to teach advanced classes; (8)
denying her the opportunity to teach summer courses; and (9) denying her
opportunities to participate in a study program in Spain.
A few of Recio’s allegations, that Creighton twice extended the duration of the
counseling program imposed by her probation and denied her the opportunity to teach
summer courses, must be dismissed at the outset because she has not offered any facts
indicating that Creighton actually took such actions. See Haas v. Kelly Servs., Inc.,
409 F.3d 1030, 1036 (8th Cir. 2005) (“Evidence, not contentions, avoids summary
judgment.” (quoting Mayer v. Nextel West Corp., 318 F.3d 803, 809 (8th Cir. 2003))).
Recio admits that she has spent every summer in Spain since joining the faculty at
Creighton, thus, there is no indication that she has been denied an opportunity to teach
summer courses at Creighton. With regard to the duration of Recio’s counseling
requirement, Recio’s May 2004 probation imposed a year-long counseling
requirement that would be completed on May 31, 2005. However, Recio did not
begin attending counseling sessions in May 2005 because she took her annual trip to
Spain during the summer of 2004. In August 2004, Creighton recognized that Recio
would not be able to complete the one-year counseling program on May 31, 2005 and
advised her that she was still required to complete a year-long program. Creighton
also requested notification of the date of Recio’s first counseling session because the
one-year requirement would be imposed from that date, resulting in a new completion
-8-
date for the counseling requirement. Similarly, the April 2005 notification merely
acknowledged the impact of Recio’s impending trip to Spain for the summer of 2005
on the counseling requirement. Thus, the August 2004 and April 2005 notifications
did not impose an extension of the original year-long counseling requirement of
Recio’s probation. Rather, the date of completion merely shifted in accordance with
Recio’s voluntary decisions to begin the sessions after the summer of 2004 and
suspend the sessions during the summer of 2005.
We next address whether any of Recio’s remaining allegations satisfy the
materially adverse element. This element is objective such that we must determine
whether any of the actions challenged here “might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 2415 (2006) (quotation
omitted). Most of the allegations, a two-month delay between the time Recio was
notified of a vacancy in the Spanish faculty compared with the rest of the faculty,
keeping the temperature in her office too cold, requiring her to acknowledge her
probation in her employment contract, and denying her the opportunity to participate
in a study program in Spain, “are akin to the sort of trivial harms that do not rise to the
level of retaliation,” Weger v. City of Ladue, 500 F.3d 710, 728 (8th Cir. 2007), and
even fall short of those which this court has previously found lacking. See Clegg v.
Ark. Dept. of Corr., 496 F.3d 922, 929-30 (8th Cir. 2007) (lower performance
evaluation; employer’s failure to provide Clegg with employment tools, notice of new
department policies, and not immediately having her attend certain meetings;
temporary remedial training done in order to help her improve on her next evaluation;
and denial of permission to attend one training session insufficient); Devin v.
Schwan’s Home Serv., Inc., 491 F.3d 778, 786-87 (8th Cir. 2007) (supervisor’s
presence on delivery route manager’s truck; assignment of poorly organized substitute
truck; unfair issuance of written notice for failing to turn in customer postcards; false
report that she had twice as many customer complaints as other route managers; and
employer’s refusal to assign her a route builder who would accompany her and obtain
-9-
new customers insufficient). The allegations that come closest to articulating a
potentially significant harm are Recio’s contentions that Creighton altered her
teaching schedule, that she was shunned by faculty, and that Creighton failed to assign
her to teach advanced classes.
Recio contends that she suffered a materially adverse action when Creighton
notified her on August 31, 2004 that, though she would be able to maintain her
Tuesday-Thursday (“T-Th”) teaching schedule for the Fall 2004 semester, she would
have a M-W-F class schedule during the Spring 2005 semester. Recio and her
husband were the only members of the Spanish faculty that taught on a T-Th schedule.
On September 3, 2004, Recio wrote the Department chair that “[she] would prefer to
teach during Tuesdays and Thursdays, which is the schedule that fits best for [her]
work habits.” Despite Recio’s complaint, she and her husband taught on a T-Th
schedule in the Fall of 2004 and, along with all Spanish faculty, maintained a M-W-F
schedule for the Spring 2005 semester. The mere fact that Creighton disallowed
Recio from maintaining her preferred teaching schedule, without any indication that
Recio suffered a material disadvantage as a result of the action, does not “meet the
significant harm standard set forth in Burlington Northern.” Clegg, 496 F.3d at 929;
see Higgins v. Gonzales, 481 F.3d 578, 584 (8th Cir. 2007) (“Minor changes in duties
or working conditions, even unpalatable or unwelcome ones, which cause no
materially significant disadvantage do not satisfy the [materially adverse] prong.”).
Also, the instances of ostracism that Recio experienced amount to no more than
“nonactionable petty slights” under Burlington Northern. 126 S. Ct. at 2415. Recio
alleges that she received “the silent treatment,” Appellant’s Br. at 60, from other
faculty and was excluded (along with her husband) from a picture of the Spanish
faculty posted on its website in December 2004. Ostracism of this variety is not
materially adverse. See id. at 2415-16 (“A supervisor’s refusal to invite an employee
to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding
an employee from a weekly training lunch that contributes significantly to the
-10-
employee’s professional advancement might well deter a reasonable employee from
complaining about discrimination.”); see also Somoza v. Univ. of Denver, 513 F.3d
1206, 1218 (10th Cir. 2008) (“[Plaintiffs] may have had to withstand colleagues that
do not like them, are rude, and may be generally disagreeable people. However, [a]
court’s obligation is not to mandate that certain individuals work on their interpersonal
skills and cease engaging in inter-departmental personality conflicts.”).
Next, though there may be some fact situation where a professor is denied the
opportunity to teach advanced classes in a way that so hinders her professional career
that it constitutes a materially adverse action, we need not decide whether that is the
case here because Recio has failed to demonstrate a causal connection between her
discrimination complaint and her course assignments. The relevant time period is
from July 26, 2004, when Creighton received notice of Recio’s discrimination
complaint, onward. Recio first raised the allegation of preferential teaching
assignments to other faculty in October 2001. Creighton’s actions at that time cannot
be causally connected to Recio’s discrimination complaint as a matter of law because
Recio had not yet engaged in any protected activity. See Culton v. Mo. Dept. of Corr.,
515 F.3d 828, 831 (8th Cir. 2008) (finding the plaintiff’s “failure to present any
evidence that [his supervisor] was aware of [his] protected activities [was] fatal to
[employee’s] retaliation claim”).
In addition, Recio offers some evidence indicating that she was assigned fewer
advanced level courses than other Spanish faculty during the Spring 2005 to Fall 2007
semesters. However, she failed to show any nexus between such evidence and her
discrimination complaint. Generally this court requires more than a mere temporal
connection in order to infer causation, Green v. Franklin Nat. Bank of Minneapolis,
459 F.3d 903, 915 (8th Cir. 2006), and the temporal connection here, six months, is
not close enough to raise an inference of causation. See Weger, 500 F.3d at 726
(“Though not dispositive, we have previously ‘held that an interval as brief as two
months did not show causation for purposes of establishing a retaliation claim, . . . and
3Because we find Recio failed to demonstrate a prima facie case of retaliation,
we need not address the issue of whether alleged retaliation against Recio’s husband
is relevant to her claim where the allegations relating to him mirror those raised by
Recio; nor do we need to address the issue of whether the district court erred in
finding that, even if Recio had made a prima facie showing, summary judgment in
favor of Creighton was proper because Creighton had offered legitimate reasons for
each of the allegedly retaliatory actions, and Recio had not produced any evidence that
Creighton’s reasons were pretexts for retaliation.
-11-
that a two-week interval was sufficient, but barely so . . . .’” (internal quotation and
citation omitted)). Recio’s inability to show a link between her course assignments
and her discrimination complaint is further demonstrated by: (1) the fact that this
issue has a history preceding Recio’s protected conduct and (2) Recio’s concession
on September 3, 2004 (about six weeks after her complaint) that she “ha[d] no
problem with the course levels . . . assigned to [her],” for the Fall 2005 semester, the
semester closest in time to her complaint. Joint Appendix at 125. In sum, Recio has
not shown a causal connection between her discrimination complaint and her teaching
assignments. Accordingly, Recio has failed to establish a prima facie case of
retaliation.3
Finally, the record evinces no basis for Recio’s contentions that a multitude of
disputes of material fact are present in this case, that the district court improperly
viewed the facts by resolving disputes in favor of Creighton, or that the standard of
review was improperly slanted in favor of Creighton. Summary judgment in favor of
Creighton was appropriate.
IV.
For the foregoing reasons, we affirm the judgment of the district court.
______________________________
 

 
 
 

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