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Hervey v. County of Koochiching: EMPLOYMENT - summary judgment for defendant on gender discrimination, hostile environment; Minnesota Government Data Practices act without prejudice to renew in state court

United States Court of Appeals
No. 06-3891
Florence Hervey, *
Appellant, **
Appeal from the United States
v. * District Court for the
* District of Minnesota.
County of Koochiching; Sheriff Duane *
Nelson, individually and in his official *
capacity; Undersheriff John Mastin, *
individually and in his official capacity, *
Appellees. *
Submitted: October 19, 2007
Filed: June 9, 2008
Before RILEY, MELLOY, and COLLOTON, Circuit Judges.
COLLOTON, Circuit Judge.
Florence Hervey brought a claim pursuant to Title VII of the Civil Rights Act,
42 U.S.C. 2000e et seq., and the Minnesota Human Rights Act, Minn. Stat. 13.01
et seq., alleging that her employer, Koochiching County, and supervisors Duane
Nelson and John Mastin, discriminated against her on the basis of her sex, and
retaliated against her for participation in a protected activity. She also brought a state
claim against the County for violation of the Minnesota Government Data Practices
1 The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota.
Act, Minn. Stat. 13.02, subd. 7. The district court1 granted summary judgment in
favor of the defendants on all claims. Hervey v. County of Koochiching, No. 04-4537,
2006 WL 2990515 (D. Minn. Oct. 20, 2006). We affirm the dismissal of the
discrimination and retaliation claims, and remand with directions to dismiss the Data
Practices Act claim without prejudice.
Because we are reviewing a grant of summary judgment, we describe the facts
in the light most favorable to Hervey. Hervey worked for 25 years as a corrections
officer in the Koochiching County Jail. In 2002, she was promoted to the newlycreated
position of jail administrator. At that time, Sheriff Duane Nelson decided that
the jail administrator would report directly to him, rather than to Robert Byman, the
undersheriff and second in command.
Hervey, Byman, and Nelson worked without incident for two years. Byman
then announced his retirement, and Nelson selected John Mastin to be the new
undersheriff. Even before his official start date, Mastin convinced Nelson to change
the reporting structure of the department, so that all employees, including Hervey,
reported through him. On April 3, 2003, a new organizational chart was distributed
to the staff indicating this change.
Hervey objected to the new reporting structure. She e-mailed Nelson,
explaining that her job description showed her reporting directly to him, not to the
undersheriff. Two days later, Nelson called a meeting with Hervey, Byman, and
Mastin. At the meeting, Nelson became upset with Hervey. He told Hervey that her
e-mail had made him so damn mad, that she was disrespectful, and that he had
received complaints from employees in the courthouse who were concerned that
Hervey was trying to run the department. He also told her that the county
commissioners wanted to reevaluate the need for a jail administrator. During this
exchange, Hervey told Nelson that he had respectful workplace issues. After an
hour, Byman and Mastin left the room and Nelson apologized to Hervey. He gave her
a hug and said, youre going to have problems with [Mastin], arent you?
Disputes continued between Hervey and her two supervisors, Nelson and
Mastin. On September 15, 2003, Hervey sent an e-mail to the county attorney asking
whether it was lawful for her to be driving in a patrol car with a shotgun in it. When
Nelson learned that Hervey had sought advice outside of the department without
checking with him, he became angry. Nelson and Mastin stormed into Herveys
office and asserted that her action was in direct violation of a departmental directive,
which stated that [p]rior to going outside the department with any departmental
concerns, approval shall be obtained from the Sheriff or [Undersheriff]. Nelson also
accused Hervey of going behind his back to the county board and county coordinators.
After this incident, Mastin and Nelson gradually reduced Herveys duties as jail
administrator. Shortly after Mastin became the undersheriff, he asked Hervey to
provide a written explanation of her job duties, and an explanation of who performed
those duties before the jail administrator position was created. Hervey perceived this
request as a message that her position was unnecessary. Then, in late October 2003,
Mastin told Hervey that he was going to take some of her responsibilities away from
her, and transfer them to himself and the sheriffs secretary. Mastin also informed
Hervey that she would keep the title of jail administrator, but that the position would
be eliminated after she left the department.
During the fall of 2003, the County Board expressed concern that a jail
administrator position was not necessary. As an alternative to eliminating the
position, Nelson agreed to cut the budget for part-time corrections officers, with a
consequence that Hervey was required to fill some of the lost shifts. Mastin informed
Hervey that she must work two hours each day as a corrections officer, starting
January 1, 2004, because the department was having budget problems.
On February 6, 2004, Mastin conducted a performance evaluation of Hervey,
and gave her mixed reviews. He gave her high ratings for her knowledge of the
position and productivity, but low ratings for teamwork, judgment, and dependability.
Mastins overall rating of Hervey was two out of five. He felt that she was supportive
of her own staff in the corrections area, but needed to become a team player within the
overall department.
Hervey did not agree with Mastins evaluation. The next Monday, February 9,
she decided that she was going to take time off to prepare a formal complaint against
Mastin and Nelson. She left a message on Mastins voicemail on Monday, and told
two of her subordinates that she would not be at work on Tuesday. Tuesday night,
Hervey again called two of her subordinates to inform them that she would be gone
on Wednesday. She asked them to leave a voicemail for Mastin. Hervey did not
inform Mastin and Nelson, however, that she intended to file a complaint against
Mastin called Hervey at home Wednesday morning to ask why she had not
been at work. He claimed that he had not received a voicemail from her, and that he
wanted to meet with her on Thursday morning to discuss her absences. At the
Thursday morning meeting, Mastin called Hervey a liar, again stating that he had not
received a voicemail message. Hervey then told Mastin that she had filed a complaint
with the Minnesota Department of Human Services. Mastin told Hervey that when
the sheriff returned to the office, the three of them would meet, and Mastin told her
he would suggest to the sheriff that you report to work from now on in brown
because you are no longer a supervisor. (Hervey App. 34).
On February 13, Mastin wrote to Sheriff Nelson, recommending that Hervey
continue as Jail Administrator with duties to be reviewed and discussed but wear the
same uniform as the other correctional officers. (Hervey App. 174). Mastin opined
that Hervey had many admirable abilities, but that her leadership and judgment
were inadequate. (Id. at 173). He listed six reasons for his recommendation: (1)
Herveys wearing the white shirt of a supervisor has caused and will continue to
cause tension among staff and lower morale within our office and other agencies, (2)
the position of Jail Administrator as it had been conducted was not consistent with the
formal job description, (3) Hervey failed to responsibly supervise and provide
adequate attention to individuals that were not . . . able to attain the skills to perform
their duties, and failed to provide accurate, timely, and pertinent information
required for the safety of the public and officers, (4) Hervey failed to maintain
credibility and integrity with supervisors by repeatedly providing misleading or
incorrect requested information, not following directives, [and] causing or provoking
situations by being argumentative or threatening, (5) Hervey failed to work toward
a teamwork approach that . . . would support the entire office in its mission to provide
security and integrity to [the] community, and (6) Hervey was not truthful with her
supervisor when asked a direct question regarding an absence from work. (Id.).
Nelson did not change Herveys job title or reduce her pay in response to
Mastins memorandum. Hervey points to no evidence that she was prohibited from
wearing a white shirt to work, as Mastin had recommended. On February 18, 2004,
however, Mastin issued a memorandum, stating that all vacation time, office
schedules, and memoranda regarding the agency must be cleared by him. (County
App. 190). Mastin stated that the sheriff already had made this clear to him, but in
light of Herveys recent absences, Mastin wanted to make this point clear to Hervey
and the rest of the staff. Mastin also took away Herveys master key, because he was
told that Hervey had been in his office while he was not there. Mastin replaced the
master key with a key that would open only Herveys office. In a letter to the county
attorney, Herveys attorney asserted that these actions completely undermine[d] any
2Nelson summarized his frustration with Hervey in this way: You know, their
offices are 10 feet apart. And there isnt any reason why they shouldnt be able to
meet even if its just to say, geez, you know, theres nothing going on today . . . its
perfectly quiet, do you have any questions for me. Thats what we just asked of her.
(R. Doc. 132, Exh. 8, at 152). Mastin, on the other hand, refused to make
appointments. The district court aptly summarized the situation: And round and
round they would go: Two employees, sitting ten feet from each other, tapping away
on their keyboards, arguing about how they might meet. Hervey, 2006 WL 2990515,
at *5.
authority Ms. Hervey has with her subordinates, and demean[ed] her publicly to her
colleagues in all law enforcement agencies that use the law enforcement center.
(County App. 188).
On March 2, 2004, Nelson and Mastin placed documentation in Herveys
personnel file of the oral warning regarding events of February 10. The
memorandum warned Hervey for (1) not following the directive to properly request
leave from your supervisor before taking time off, and (2) not being truthful to your
supervisor regarding the notification of the request for time off. (Id. at 122). The
notice advised that [f]urther reoccurrence of these actions will result in discipline,
and that the documentation would be removed from Herveys personnel file in one
year, if there were no reoccurrence. (Id.)
In 2005, Nelson and Mastin suspended Hervey twice for insubordination. Each
suspension was based on two points: (1) Herveys failure to meet with Mastin on a
daily basis, and (2) Herveys failure to comply with directives and to meet job
expectations. (County App. 7-9, 131-34). As to the former, Nelson and Mastin
required Hervey to meet with Mastin each day. Because Mastin felt his job did not
lend itself to a set schedule, he asked Hervey simply to stop by his office once each
day. Hervey wanted to make an appointment, however, and e-mailed Mastin every
day asking what time he would like to meet. Hervey failed to meet with Mastin on
several occasions, and Nelson and Mastin ultimately cited this failure when
suspending her for five days in March 2005 and fifteen days in July 2005.2 The
March suspension notice also cited two specific instances in which Hervey failed to
comply with supervisory directives. The July notice cited sixteen specific instances
in which Hervey failed to meet the reasonable expectations of her position. The July
notice further warned Hervey that if she did not correct her deficiencies and comply
with directives, then she would be terminated.
After receiving a right-to-sue letter from the EEOC, Hervey brought this claim,
alleging that the defendants violated Title VII and the Minnesota Human Rights Act,
because they discriminated against her based on sex, and retaliated against her for
taking protected actions. She also brought a state-law claim against the county under
the Minnesota Government Data Practices Act (MGDPA). Hervey claims that the
county violated the act because Mastin, while working within the scope of his
employment, disclosed private personnel data.
The district court granted summary judgment on the sex discrimination claims,
holding that Hervey had not produced any evidence that Nelson and Mastin acted
against her because she was a woman. Hervey, 2006 WL 2990515, at * 13. The court
noted that Nelson and Mastin might have been the worlds worst supervisors, and
they might have run the worlds most hostile workplace, but, as long as they did not
act against Hervey because she is a woman, they cannot be held liable under Title
VII. Id. The district court also granted summary judgment in favor of the defendants
on the retaliation claim, concluding that evidence of timing that her adverse
employment actions occurred within a short time of her engagement in protected
activity was insufficient to make out a prima facie case of retaliation. Id. at *16.
Alternatively, even if temporal proximity were sufficient to establish a prima facie
case, the court held that Hervey provided no evidence on which a reasonable jury
could rely to find that the defendants explanations were pretextual. Id. The district
court granted summary judgment in favor of the county on the MGDPA claim,
because it found that Mastin had not acted within the scope of his employment when
he disclosed the private data. Id. at *17.
We first consider the district courts grant of summary judgment on the Title
VII and MHRA claims, which are governed by the same standards. See Wittenburg
v. Am. Exp. Fin. Advisors, Inc., 464 F.3d 831, 842 n.16 (8th Cir. 2006). We review
the district courts grant of summary judgment de novo, viewing the evidence and
drawing all reasonable inferences in the light most favorable to Hervey, the
nonmoving party. Holland v. Sams Club, 487 F.3d 641, 643 (8th Cir. 2007). We will
affirm if no genuine issue of material fact exists and the defendants are entitled to
judgment as a matter of law. Id. But [o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of
summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Title VII and the MHRA prohibit discrimination against an employee, with
respect to compensation, terms, conditions or privileges of employment, because of
sex. 42 U.S.C. 2000e-2(a)(1). Hervey presented no direct evidence of
discrimination, so the district court analyzed her claim under the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Because the record has been fully developed in connection with the motion for
summary judgment, however, we may now focus on the ultimate question of
discrimination vel non. See U.S. Postal Serv. Bd. of Governors v. Aiken, 460 U.S.
711, 715 (1983); Riser v. Target Corp., 458 F.3d 817, 820-21 (8th Cir. 2006); Johnson
v. Ready Mixed Concrete Co., 424 F.3d 806, 810 (8th Cir. 2005).
We consider first Herveys allegation that she suffered an adverse employment
action because of her sex. Hervey claims that Nelson and Mastin took away many of
her major responsibilities, and suspended her twice without pay, because she is a
woman. The defendants argue that these actions were taken because of Mastins
management style and Herveys insubordination. Hervey does not dispute that Mastin
had a different management style, but instead claims that Mastin never should have
been managing her, because Nelson and Mastin cannot change the reporting structure
without the approval of the county board. Hervey thus confuses a grievance about
internal county management with a claim of discrimination. Whether or not Mastin
should have been supervising Hervey, she has no claim under Title VII unless the
actions of Mastin or Nelson were based on sex. We see nothing about the alleged lack
of authority to change the management structure that supports an inference that
subsequent actions taken by the new management team were based on sex.
Hervey also points to Mastins numerous comments that the jail administrator
position was unnecessary as evidence of sex discrimination. She highlights Mastins
comment that the boys in blue (referring to the sheriffs deputies) and the boys in
brown (referring to the corrections officers) do not think that the position of jail
administrator is needed. That Mastin reported that male employees thought the
position unnecessary, however, does not support an inference that Mastin acted based
on Herveys sex. It is undisputed that the county was suffering budget difficulties,
and that the sheriffs office operated for many years without a jail administrator. In
any event, a single comment that merely references gender is not sufficient to create
a genuine issue of material fact of sex discrimination. See Fjelsta v. Zogg
Dermatology, PLC, 488 F.3d 804, 809-10 (8th Cir. 2007).
Hervey argues that the defendants claim that she was insubordinate is a pretext
for adverse employment actions based on sex. Nelson and Mastin suspended Hervey
twice without pay for acts of insubordination, including her failure to meet with
Mastin on a daily basis as directed. Hervey first argues that Mastins insistence on
meeting every day, without scheduling an appointment, was designed to cause failure.
She also claims that a jury could find that Nelson directed and encouraged Mastin to
be uncooperative in scheduling meetings. She cites testimony of the former
undersheriff that scheduling meetings was possible. It may be that Hervey is right and
Mastin is wrong that scheduling a meeting time each day would have been more
efficient. But [e]mployers are free to make employment decisions based upon
mistaken evaluations, personal conflicts between employees, or even unsound
business practices. Edmund v. MidAmerican Energy Co., 299 F.3d 679, 685-86 (8th
Cir. 2002) (internal quotations omitted). Hervey has not produced evidence that the
personnel actions taken against her were based on sex, rather than on an effort to
implement a management directive, whether that directive was sound or unsound as
a business practice.
Hervey also claims that similarly-situated male employees were not punished
as severely for their misconduct, and that this differential treatment establishes a
submissible case of discrimination based on sex. To prove discrimination based on
similarly-situated persons of another sex, however, the individuals used for
comparison must have dealt with the same supervisor, have been subject to the same
standards, and engaged in the same conduct without any mitigating or distinguishing
circumstances. Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000). Hervey cites
two employees that she claims were not punished for similar acts of misconduct:
Mastin, and Mastins step-son, a part-time deputy.
Hervey argues that Sheriff Nelson learned recently that, in 1980, Mastin lied
on his application to become a licensed police officer by stating that he had not been
convicted of a felony. Hervey claims that Mastin was not suspended for this
falsehood, while she was reprimanded for lying to Mastin about leaving a voicemail
on his telephone. A comparison of these two incidents does not support an inference
of sex discrimination. Even assuming Mastin was not disciplined at all when Nelson
learned of the 1980 statement, the two circumstances are substantially different.
Hervey was sanctioned for lying to her current supervisor in a manner that was
insubordinate; Mastins falsehood occurred more than twenty-five years ago. The
differential treatment of these two dissimilar incidents does not support an inference
of sex discrimination.
Hervey also claims that Mastin was not disciplined for mishandling a
disciplinary hearing with another employee, while she was disciplined for a similar
incident. This allegation is based on an affidavit of a former employee who claims
that Mastin failed to provide union representation for the employee during a
disciplinary meeting. Hervey has produced no evidence, however, that this incident
was reported to the sheriff or anyone else with supervisory authority over Mastin.
Without such evidence, there is no showing that supervisors treated Mastin and
Hervey differently for an allegedly similar infraction.
Hervey next contends that Mastins collective violations of department policy
over his career are more serious than her acts of insubordination, but that Mastin has
never been suspended without pay. In addition to the allegations above, Hervey
claims that Mastin violated department policy when he was involved in domestic
disputes, and recently violated Minnesota law by giving his step-son a transcript of
a meeting between Mastin and Hervey that was prepared in contemplation of this
litigation. The focus of our inquiry, however, is whether other employees were treated
differently despite committing the same violations as Hervey: whether they were
involved in or accused of the same offense and [were] disciplined in different ways.
Riser, 458 F.3d at 821 (internal quotation omitted) (emphasis added); see also Clark,
218 F.3d at 918. Mastins off-duty misconduct and other incidents dating to 1980 are
not the same as Herveys recent insubordination while on the job. That the two sets
of behavior were treated differently does not support an inference of sex
discrimination. As to Mastins step-son, Richard Mastin, Hervey claims that the
departments failure to discipline him for driving while intoxicated shows that
management disciplined her based on sex. Again, however, this off-duty misconduct
by Richard Mastin is not an offense that is the same or similar to Herveys
insubordination, so the two employees are not similarly situated in all relevant
respects for purposes of disparate treatment analysis.
Among a host of other assertions, Hervey also cites her poor performance
evaluation, and the requirement that she act as a corrections officer for two hours each
day. In each instance, however, Hervey failed to produce evidence linking these
actions to sex discrimination. We thus agree with the district court that summary
judgment was appropriate on Herveys disparate treatment claim of sexual
Hervey next claims that the defendants discriminated against her based on sex
by creating a hostile work environment. To establish even a prima facie case of sex
discrimination on this theory, Hervey was required to demonstrate that: (1) she
belongs to a protected group; (2) she was subjected to unwelcome harassment; (3) the
harassment was based on sex; (4) the harassment affected a term, condition, or
privilege of employment; and (5) her employer knew or should have known of the
harassment and failed to take proper remedial action. Nitsche v. CEO of Osage Valley
Elec. Co-op, 446 F.3d 841, 845 (8th Cir. 2006). We agree with the district court that
Hervey failed to establish a submissible case of a hostile work environment, because
she did not produce evidence that the alleged harassment was based on sex.
Hervey claims that Nelson and Mastin created a hostile work environment by,
among other things, constantly criticizing her, requiring her to report to Mastin, and
yelling at her on several occasions. As an example, Hervey cites to Nelsons comment
that she made him so damn mad. Even if we assume that Nelson and Mastins
actions were abusive, Hervey must prove that she was the target of harassment
because of her sex and that the offensive behavior was not merely non-actionable,
vulgar behavior. Pedroza v. Cintas Corp. No. 2, 397 F.3d 1063, 1068 (8th Cir.
2005). This distinction is important because Title VII does not prohibit all verbal or
physical harassment in the workplace and is not a general civility code for the
American workplace. Id. (internal quotations omitted). Hervey has failed to produce
such evidence. She simply recites a list of actions that Nelson and Mastin took against
her, and claims they were taken because she is a woman. There is insufficient
evidence to support an inference of discrimination. See Joens v. John Morrell & Co.,
354 F.3d 938, 941-42 (8th Cir. 2004).
Herveys final discrimination claim is that the defendants retaliated against her
based on protected activity. Federal law prohibits an employer from discriminating
against an employee who has opposed any practice made unlawful by Title VII, or
made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding or hearing under the statute. 42 U.S.C. 2000e-3(a); see Barker v.
Missouri Dept. of Corrections, 513 F.3d 831, 834 (8th Cir. 2008). To establish even
a prima facie case of retaliation, Hervey must demonstrate that (1) she engaged in
statutorily 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. Weger v. City of Ladue, 500 F.3d 710,
726 (8th Cir. 2007). An employee must show that the employer had actual or
constructive knowledge of the protected activity in order to establish unlawful
retaliation. Buettner v. Arch Coal Sales Co., Inc., 216 F.3d 707, 715 (8th Cir. 2000).
A materially adverse action is one that would have dissuaded a reasonable worker
from making or supporting a claim of discrimination. Burlington N. & Santa Fe R.
Co. v. White, 126 S. Ct. 2405, 2415 (2006) (internal quotation omitted). Once again,
because the record is fully developed, we need not proceed through each step of the
McDonnell Douglas burden-shifting framework, but may consider whether Hervey
has provided sufficient evidence of retaliation to create a submissible case. See Riser,
458 F.3d at 821. The plaintiff in a retaliation case must present sufficient evidence
for a reasonable jury to conclude that her protected conduct was a determinative factor
in a materially adverse employment action taken by the employer. Van Horn v. Best
Buy Stores, L.P., No. 07-2677, 2008 WL 2151692, at *3 (8th Cir. May 23, 2008);
Carrington v. City of Des Moines, 481 F.3d 1046, 1053 (8th Cir. 2007).
Hervey claims that she engaged in protected conduct for the first time on April
11, 2003, when she met with Nelson, Mastin, and Byman to discuss the new chain of
command. In response to Nelsons comments to Hervey that an e-mail she sent had
made him so damn mad, and that she was disrespectful, Hervey told Nelson that
he was violating the countys respectful workplace policy. The Koochiching County
Respectful Workplace Policy prohibits acts of discrimination, but also addresses
rudeness, angry outbursts, and disrespectful language, whether or not such
actions relate to a protected class. Hervey gave Nelson no indication that the
respectful workplace issues to which she referred concerned anything more than
what she perceived to be rude or angry comments that were inconsistent with the
respectful workplace policy. Therefore, we conclude that Nelson and Mastin did not
have actual or constructive knowledge of protected activity by Hervey as of April
Hervey did engage in protected conduct on February 12, 2004, when she told
Mastin that she had filed a claim with the Minnesota Department of Human Rights,
and thereafter when she participated in the processing of her complaint. Hervey
claims that Nelson and Mastin retaliated against her several times, including (1) when
Mastin said on February 12 that he would recommend to Nelson that Hervey wear a
brown shirt to work because she was no longer a supervisor, (2) two weeks later, when
Nelson and Mastin documented an oral warning for failing properly to gain approval
for leave, and being untruthful with her supervisor about a request for time off, and
(3) in March and July 2005, when Hervey was suspended for insubordinate conduct.
To establish that these actions were retaliatory, Hervey relies principally on the
timing of her protected activity and subsequent discipline. Generally, however, more
than a temporal connection between the protected conduct and the adverse
employment action is required to present a genuine factual issue on retaliation. Kiel
v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (en banc). The wisdom
of this rule is evident in a case such as this, where the employee was accused of
insubordination before she notified the employer of her protected activity.
Insubordinate employees may not insulate themselves from discipline by announcing
an intention to claim discrimination just before the employer takes action. Evidence
that the employer had been concerned about a problem before the employee engaged
in the protected activity undercuts the significance of the temporal proximity. Smith
v. Allen Health Sys., Inc., 302 F.3d 827, 834 (8th Cir. 2002). See also Slattery v. Swiss
Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001) (Where timing is the only
basis for a claim of retaliation, and gradual adverse job actions began well before the
plaintiff had ever engaged in any protected activity, an inference of retaliation does
not arise.).
On February 12, 2004, Mastin summoned Hervey to his office to address her
recent absences. Mastin accused Hervey of taking leave without notifying her
supervisor and of lying about leaving him a voicemail before Hervey disclosed that
she intended to file a discrimination claim. Before the meeting ended, Mastin told
Hervey that he would recommend to the sheriff, based on events that occurred well
before Hervey engaged in protected activity, that she wear a brown shirt to work
because she was no longer a supervisor. Assuming for the sake of argument that
Mastins statement that he would make such a recommendation is a materially adverse
action, but cf. Somoza v. Univ. of Denver, 513 F.3d 1206, 1215 (10th Cir. 2008), or
that Mastin unilaterally demoted Hervey in the meeting while advising her that his
recommendation to the sheriff would address only what color shirt she should wear,
the action was a logical consequence of Herveys pre-existing disciplinary problems,
and Hervey cannot create a submissible case of unlawful retaliation by interjecting her
announcement of a discrimination claim in the middle of a previously scheduled
meeting to discuss her absences from work. See Green v. Franklin Natl Bank of
Minneapolis, 459 F.3d 903, 916 (8th Cir. 2006) ([T]iming alone is insufficient to
3As noted, when Mastin wrote to Nelson to recommend that Hervey be directed
to cease wearing the white shirt of a supervisor, the six reasons he cited did not
include her improper taking of leave. (Hervey App. 173). The sixth reason cited was
Herveys untruthfulness with her supervisor when asked a direct question about her
absence from work. (Id.)
show a pretextual motive rebutting a legitimate, non-discriminatory reason for an
adverse employment action.). The same goes for the written warning on March 2,
2004; this memorandum simply documented criticisms that Mastin made of Hervey
before she announced her protected activity. The later suspensions in March and July
2005 were premised on additional insubordinate acts and inadequate performance by
Hervey. The mere fact that her discrimination claim was proceeding at the same time
is insufficient to create a reasonable inference of retaliation. We reiterate that antidiscrimination
statutes do not insulate an employee from discipline for violating the
employers rules or disrupting the workplace. Kiel, 169 F.3d at 1136.
While professing to agree that generally more than a temporal connection is
needed to make a submissible case of unlawful retaliation, post, at 21, the dissent
proceeds in the next breath to argue that Hervey has indeed established a submissible
case based merely on a temporal connection. Hervey is entitled to a jury trial on
whether her February 12 demotion was due to her filing a complaint of
discrimination, it is said, because there is no evidence that Mastin planned on
disciplining Hervey for improperly taking leave before Hervey told Mastin that she
would be filing a complaint against him. Post, at 23.3 But the only evidence to
which the dissent points in support of this retaliation claim is that which is generally
insufficient temporal proximity. That is, the dissent relies solely on the fact that
Hervey disclosed the complaint to Mastin moments after Mastin accused her of taking
leave without providing advance notice and lying about whether she notified Mastin
by voicemail, but moments before Mastin told Hervey the consequences of her
misconduct. This is insufficient evidence to create a submissible claim of unlawful
retaliation. Green, 459 F.3d at 916. The defendant does not bear the burden to show
that he already intended to administer discipline before the plaintiff interjected
protected activity; the burden of persuasion is on the plaintiff to show that more than
temporal proximity supports her claim that the employers legitimate explanation is
a pretext for unlawful retaliation. Id.
Beyond temporal proximity, we agree with the district court that the record does
not support a reasonable inference of retaliation for protected activity. Hervey asserts
that Mastin was untruthful in claiming in February 2004 that she dissembled about
leaving him a telephone message concerning her intention to take leave. But even if
Mastin concocted his version of the voicemail incident, Mastin did so before Hervey
advised him of her protected activity, so a dispute about Mastins truthfulness
regarding the voicemail does not support a reasonable inference of retaliatory motive
for the discipline. See Smith, 302 F.3d at 834. The dissent argues that there is
evidence to support a retaliatory motive for the written warning placed in Herveys
file on March 2, 2004, because Hervey disputed whether she violated the office leave
policy, and because Mastin conceded that he retroactively granted leave all the time.
Assuming the placement of this documentation in Herveys file is a materially adverse
employment action, but cf. Devin v. Schwans Home Serv., Inc., 491 F.3d 778, 786
(8th Cir. 2007), the evidence does not support an inference of retaliatory motive for
the warning. Whatever Mastins practice regarding retroactive approval of leave,
Hervey was warned based on a combination of occurrences: her failure to comply
with the leave policy and her false statements to Mastin in trying to justify her
absence. She has not produced evidence that Mastin refrained from imposing
discipline all the time, or any time, under this confluence of circumstances.
Evidence that Mastin declined to warn or discipline other employees under different
circumstances does not satisfy Herveys burden to present proof that she was treated
4The dissent further asserts that a warning to Hervey in June 2004 that she made
improper use of a county credit card, (Hervey App. 169), is an example of selective
discipline. The credit card incident actually shows the opposite. Corrections officer
Gary Loop was warned at the same time as Hervey for improper use of a credit card,
precisely because the sheriffs office did not want to treat Hervey more harshly than
other employees. The dissent points to no evidence that Nelson or Mastin declined
to discipline other employees who made improper use of county credit cards to
support its assertion that this was discipline that only happens if Hervey is involved.
Post, at 26.
differently from other employees who were similarly situated in all relevant respects.
See Phillips v. Union Pac. R. Co., 216 F.3d 703, 707 (8th Cir. 2000).4
Hervey also disagrees with Mastins assessment of her insubordinate behavior
and poor performance, but her evidence must do more than raise doubts about the
wisdom and fairness of the supervisors opinions and actions. It must create a real
issue as to the genuineness of the supervisors perceptions and beliefs. See Scroggins
v. Univ. of Minn., 221 F.3d 1042, 1045 (8th Cir. 2000); Edmund v. MidAmerican
Energy Co., 299 F.3d 679, 685-86 (8th Cir. 2002). The dissent says there is such an
issue with respect to the July 2005 suspension, because the manner in which the
suspension was implemented deactivating Herveys cardkey and notifying staff of
the suspension before notifying Hervey was humiliating. The strongest support
the dissent can muster for this legal proposition is a Cf. citation to a case involving
an entirely different claim of hostile work environment. The dissent appears to mean
that Nelson and Mastin deviated from some unspecified norm when they selected the
manner of implementing Herveys suspension. We do not think it is self-evident,
however, that a suspended employee must be granted unfettered access to a secure
building until she is notified of her suspension from work at the building. And Hervey
herself admitted that staff members were notified of the suspension for a legitimate
reason, namely, to cover Herveys work shifts during her suspension. (R. Doc. 125,
Exh. B, at 219). Hervey does not assert that the staff notified her of the suspension
5The dissent also suggests that our analysis discounts the breadth of evidence
concerning temporal proximity, and overlooks Herveys supporting evidence, but
much of the evidence recounted by the dissent is overstated or simply not supportive
of her claim. The dissent recounts, for example, that on July 13, 2005, Hervey
requested several vacation days to attend depositions in this case, but that Mastin
denied her request two days after the defendants counsel received notice of the
depositions. The dissent does not assert that Mastin acted with knowledge that a
denial of leave would hinder Herveys ability to prosecute her lawsuit, and Hervey
acknowledges that when her counsel later notified Mastin that Hervey sought leave
to attend depositions, (R. Doc. 133, Exh. 112), the leave was granted. (Hervey Br. 15-
16). The dissent devotes another paragraph to a legal battle over documentation
regarding Herveys suspension, which culminated in the countys claim of attorneyclient
privilege with respect to any documentation not already disclosed to Hervey.
We do not understand how invocation of an evidentiary privilege supports an
inference of retaliatory intent.
in the first instance, or that staff members somehow acted to humiliate Hervey before
she was notified of the suspension by her supervisors.
In any event, assuming that the manner of implementing Herveys suspension
may fairly be labeled humiliating, that fact alone is not probative of retaliatory
intent. The supervisors, after all, may have sought to embarrass Hervey because of
her insubordination alone, or simply because they were mean-spirited. Neither
Hervey nor the dissent points to evidence that Hervey was treated differently in these
respects than another similarly-situated employee who was suspended but who had
not filed a discrimination complaint. Hervey produced no evidence that any other
employee subject to suspension without pay was permitted access to a secure facility
through the use of a cardkey on the first day of the suspension. She has not presented
evidence that staffing arrangements to account for other suspensions were delayed
until after the suspensions formally began.5
We do not gainsay the importance of the prohibition on retaliation to the proper
functioning of the discrimination laws. An employer may not dissuade employees
from invoking the protections of the civil rights laws by retaliating against those who
bring discrimination to light. But the cause of action also should not be extended
beyond its proper role into an unwarranted regulation of the employer-employee
relationship. An employee in trouble with supervisors, and on the verge of
disciplinary action, may not insulate herself from discipline by filing a claim of
discrimination. Without our insistence that a claim of unlawful retaliation be
bolstered by appreciable evidence beyond a temporal connection with the filing of a
discrimination claim, an employer seeking to address the problem of underperforming
employees could be paralyzed by the fear (or reality) of retaliation lawsuits, and
unable to manage its workforce. This analysis does not call for adverse inferences
about an employees motivation or for the limitation of retaliation claims to model
employees, cf. post, at 28 n.6, but rather implements a background rule, established
in Green, 459 F.3d at 916, that defines timing alone as insufficient to support a
reasonable inference of pretext and retaliatory motive. We think the general rule on
temporal proximity is sound, and that it is properly applied in this case. Hervey has
failed to produce sufficient evidence to support a reasonable inference of retaliatory
motive on the part of her employer. We therefore agree with the district court that she
has failed to show a genuine dispute for trial.
Herveys claim under the Minnesota Government Data Practices Act was before
the district court based on supplemental jurisdiction under 28 U.S.C. 1367(a).
Because we conclude that the district court properly dismissed the federal claims, we
remand the case with directions to modify the final judgment so as to dismiss the
MGDPA claim without prejudice, so that it may be considered, if at all, by the courts
of Minnesota. See Birchem v. Knights of Columbus, 116 F.3d 310, 314-15 (8th
Cir.1997); Ivy v. Kimbrough, 115 F.3d 550, 552-53 (8th Cir.1997) (In most cases,
when federal and state claims are joined and the federal claims are dismissed on a
motion for summary judgment, the pendent state claims are dismissed without
prejudice to avoid needless decisions of state law . . . as a matter of comity and to
promote justice between the parties.) (internal quotation and citation omitted).
* * *
For the foregoing reasons, we affirm the district courts judgment on the federal
and state claims alleging discrimination and retaliation, and we remand the case to the
district court with directions to modify the final judgment so as to dismiss the claim
under the Minnesota Government Data Practices Act without prejudice.
MELLOY, Circuit Judge, concurring in part and dissenting in part.
I concur in the portions of the majority opinion that affirm the district courts
grant of summary judgment as to the sex discrimination claims (Sections II.A and
II.B) and that dismiss without prejudice the Minnesota Government Data Practices
Act claim (Section III). However, I respectfully dissent from the affirmance of the
grant of summary judgment on the retaliation claim (Section II.C). I would find the
district court erred by weighing the evidence of retaliation, resolving issues of
disputed fact, and ruling as a matter of law that Florence Hervey did not suffer
retaliation. The district court found that Hervey failed to establish the third element
of a prima facie retaliation case: a causal nexus between the protected conduct and the
adverse action. This finding was in error. The plaintiffs burden at the prima facie
case stage of the analysis is not onerous, and [a] minimal evidentiary showing will
satisfy this burden of production. Wallace v. DTG Operations, Inc., 442 F.3d 1112,
1119 (8th Cir. 2006) (citation omitted).
The majority discounts the breadth of evidence regarding the temporal
connection between Herveys protected conduct and the adverse employment actions
and overlooks Herveys other supporting evidence. The majority looks at the adverse
actions in isolation and fails to consider the totality of the circumstances. See Sherpell
v. Humnoke Sch. Dist. No. 5 of Lonoke County, Ark., 874 F.2d 536, 540 (8th Cir.
1989). While I agree with the majoritys statement that generally more than a
temporal connection is needed, evidence of temporal connection can be strong
evidence of retaliatory intent in some cases. Viewed within the context of the overall
record, temporal proximity may directly support an inference of retaliation, and it may
also affect the reasonableness of inferences drawn from other evidence. Wallace,
442 F.3d at 1122. Hervey provided strong evidence of timing and presented a
submissible case that is also based on evidence other than temporal connection.
Where reasonable fact finders could extend an inference in favor of the non-moving
party without resorting to speculation, we may not declare the inference unjustifiable
simply because we might draw a different inference. Id. at 1118. The evidence here
does create a real issue as to the genuineness of the supervisors perceptions and
beliefs, ante at 18, and support[s] a reasonable inference of retaliatory motive, ante
at 20.
As the majority states, Hervey did not go to work February 10-11, 2004.
Mastin called her on February 11 to find out why she had not been at work. He
claimed that she lied about leaving a voicemail message for him, and he told her they
would talk about it the next day. During their February 12 meeting regarding her
alleged failure to follow protocol for requesting leave, Hervey told Mastin that she had
contacted the Minnesota Department of Human Rights. Mastin responded that Hervey
was no longer a supervisor, that he would recommend that Hervey wear a brown shirt
(she wore a white shirt, signifying management status), and that when Nelson
returned, the three of them would meet. The majority states that Mastin told Hervey
that he would recommend . . . she wear [a different shirt] because she was no longer
a supervisor. Ante at 15. Viewing Herveys declaration in the light most favorable
to her, Hervey stated that Mastin demoted her. This was a materially adverse action,
and not merely a recommendation. Mastin told Hervey: I will suggest to the sheriff
that you report to work from now on in brown because you are no longer a
supervisor. Even assuming that Mastin only recommended Herveys demotion,
however, an unexecuted recommendation can constitute an adverse employment
action in combination with other retaliatory acts. See Phillips v. Collings, 256 F.3d
843, 849 (8th Cir. 2001) ([The defendant] argues that her draft evaluation of [the
plaintiff], which was never in fact implemented, cannot constitute an adverse
employment action because it did not have a tangible effect on his employment duties.
While it is true that a draft evaluation alone could not be considered an adverse
employment action, we consider the cumulative effect of [the defendants]
discriminatory actions rather than determining whether any individual action upon
which the claim relies was sufficiently adverse. (emphasis added)).
Significantly, no evidence cited by the defendants supports their argument that
Mastin planned on disciplining Hervey for improperly taking leave before Hervey told
Mastin that she would be filing a complaint against him. The district court states that
Mastin informed Hervey of his intention to discipline her before Hervey informed
Mastin of her intention to file a complaint. However, the exhibit that the district
court cites for support does not support this statement. The exhibit merely states that
Mastin said, Well, stop in my office when you come to work tomorrow . . . [t]o
discuss this issue. Culberth Decl. Ex. 89 at 16. All Mastin told Hervey on February
11 was that when [Hervey] came into work the next day, he wanted to talk to
[Hervey.] Hervey App. 34 (emphasis added). Mastin said nothing about discipline
or a demotion.
The majoritys insistence that there is no reasonable inference of a retaliatory
motive because even if Mastin concocted his version of the voicemail incident,
Mastin did so before Hervey advised him of her protected activity is unjustified.
Ante at 17. The majority points to no evidence establishing that Mastin definitively
planned on disciplining Hervey prior to their meeting. The majority cites to notes that
Mastin made in Herveys personnel file about the February 12 meeting. The notes list
six reasons for his recommendation that Hervey continue as Jail Administrator with
duties to be reviewed and discussed but wear the same uniform as the other
correctional officers. Mastin, however, wrote the notes after the meeting, and there
is no evidence tending to show he believed any of the reasons warranted discipline
prior to Herveys disclosure of her complaint. According to Hervey, Mastin did not
discuss five of the six reasons listed on the note. Accepting Herveys characterization
of the meeting and viewing Mastins notes in a light most favorable to Hervey, at least
two reasonable inferences adverse to the defendants exist. First, Mastin disciplined
Hervey solely for her untruthfulness, and because Hervey denies she was untruthful,
a jury question exists as to whether the perceived untruthfulness was Mastins true
motivation for the discipline. Second, Mastin retaliated against Hervey for filing the
complaint and attempted to conceal his retaliatory motive by listing numerous, facially
valid reasons for discipline in the notes.
Contrary to the majoritys assertion that Mastins action was a logical
consequence of Herveys pre-existing disciplinary problems, ante at 16, his action
was not logical because it was the first time that Hervey had been disciplined at all for
her alleged insubordination and incompetence. Previously, she had only been given
oral reprimands to follow directives and to improve her performance. The sudden
demotion was unexpected and came moments, ante at 17, after Hervey told him she
was filing a complaint against Mastin. Further, the notes do not suggest that Mastin
had made up his mind to strip Hervey of her supervisory role or to recommend that
she not wear a supervisor uniform before Mastin and Hervey met on February 12.
The notes are a reflection of his thoughts after the meeting and do not rebut the
retaliatory inference. Taken in a light most favorable to Hervey, we may not assume
that Mastins calling of a meeting on February 12 shows a preexisting plan to
discipline her. Thus, a material question of fact was raised as to whether Herveys
demotion was due to her failure to request leave properly and alleged lies, or due to
Mastins reasons listed in her personnel file, or due to her filing of the complaint.
On February 18, Mastin took Herveys master key to the courthouse and
replaced it with a key that only opened her office door. He also assumed some of her
responsibilities: he posted a memo stating that he would approve all vacation and
leave requests, office schedules, and memos regarding the agency. The same day,
Hervey alleged that her loss of supervisor status was retaliation by Mastin in a letter
to the Koochiching County Attorney; she cited the taking of her key and her
responsibilities as indications that the situation was worsening. On March 2, Mastin
and Nelson called a meeting with Hervey regarding the events of February 10. They
reprimanded her for her failure to properly request leave from Mastin before taking
time off and for lying to Mastin regarding her request for time off. Mastin and Nelson
stated that reoccurrences of these actions would result in discipline. However, Hervey
disputes that she violated any procedure for taking time off, and Mastin admitted that
he retroactively approved leave all the time. Given the procedural posture of this
case and our duty to view facts favorably to Hervey, we must assume that Hervey
properly requested time off.
But even if we assume that she did not comply with the leave policy, a question
of fact remains regarding whether Hervey alone was singled out for discipline for
retaliatory purposes. See Wallace, 442 F.3d at 1123 (Viewed in a light most
favorable to [the plaintiff], a reasonable jury could find [her supervisors] adverse and
selective application of the policy to be evidence that his reliance on the policy was
merely pretext to hide a retaliatory motive.). Although the majority tries to rebut the
retaliatory inference regarding selective discipline, ante at 18, the majority and
Phillips v. Union Pacific Railroad Co., 216 F.3d 703 (8th Cir. 2000), focus on the
amount of evidence of disparate treatment necessary to support a finding of pretext.
Phillips, 216 F.3d at 706. In doing so, the majority fails to take the facts in a light
most favorable to Hervey, looks at the evidence of disparate treatment as a series of
isolated events, and fails to consider the totality of all of the evidence viewed in
context. For example, beyond the fact that Hervey was disciplined in the first place,
it is significant that she was severely disciplined for violating a policy that Mastin
rarely upheld. Further, the majority discounts the gravity of inferences a jury might
draw if the jury concludes Mastin concocted post-hoc rationales for his actions, as
Hervey alleges regarding Mastins six point memo.
On June 4, 2004, Hervey filed a notice of claim with the Koochiching County
Auditor. A fax dated June 21 and addressed to Nelson contained a notice of a charge
of discrimination filed with the EEOC. A week later, Mastin disciplined
E911/Corrections Officer Gary Loop and Hervey for improper use of a county credit
card. Nelson told Loop that Nelson did not want to discipline Loop, but that Nelson
had to because of Hervey. Loop stated that [Nelson] told me that he had been close
to reconciling the conflict with Florence Hervey and her then attorney, Bruce Biggins,
but that he had gotten angry about what had been said in trying to reconcile the
conflict and that, in essence, no way was he going to do it now. This type of
selective disciplinediscipline only happens if Hervey is involvedagain creates an
inference of retaliatory intent towards Hervey. The majority disagrees, ante at 18 n.4,
taking the opposite inference: that the incident shows the lack of selective discipline
because Loop was also disciplined. But given our duty to resolve inferences in favor
of Hervey, I must conclude that this incident shows retaliatory intent.
On July 13, 2005, Hervey requested several vacation days to attend depositions
in this case. Although she did not indicate the purpose for her request, the days she
requested were the days that depositions, including those of Mastin and Nelson, were
scheduled, and the defendants counsel received notices of the depositions on July 8.
Mastin denied Herveys request two days later. On July 18, Herveys current counsel
wrote to the defendants counsel regarding the denial and stated that Hervey timely
submitted the request and ensured her shifts were covered and that Hervey was
unaware of any other such denials of vacation requests by Mastin. Mastin later
approved the request without any explanation. A few days after Herveys counsels
letter, Mastin and Nelson issued a final notice that unless Herveys performance
immediately improved, she would be terminated. They suspended her without pay for
fifteen days for failing to meet daily with Mastin and failing to meet job expectations,
citing sixteen specific examples. They also notified her staff of the suspension before
notifying her and deactivated her card key such that she could not let herself into the
building that morning. The adverse employment actions occurred close in time to the
depositions, but even more significant is the humiliating way the actions were carried
out: she was the last to know and had to be let into the building she used to run. The
humiliation creates a stronger inference of retaliation than the discipline alone. Cf.
Brannum v. Mo. Dept of Corr., 518 F.3d 542, 548 (8th Cir. 2008) (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 . . . whether
it is . . . humiliating . . . . (quotation omitted)); Swain v. Spinney, 117 F.3d 1, 8 (1st
Cir. 1997) (holding there was a distinct possibility in a 1983 action that the strip
search and accompanying sexual humiliation was in retaliation for the individuals
non-cooperation and noting the possibility that the search was merely a pretext to
The majoritys response to the retaliatory inference drawn from the humiliation
falls short. The majority comments that Herveys supervisors may have wanted to
embarrass Hervey because of her insubordination alone, or simply because they were
mean-spirited, but this comment is a result of drawing an inference against Hervey,
which should not be done at the summary judgment stage.
On August 17, 2005, Hervey met with Mastin and Nelson regarding the
suspension. Hervey again requested documentation (she had asked for documentation
twice during her suspension) supporting the allegations listed in the suspension letter
because she did not understand why she had been suspended. Mastin and Nelson
refused, stating that the attorneys wrote the letter and had all the documentation. After
ten months and at least one motion to compel, the defendants responded to Herveys
request for documentation on May 17, 2006. They claimed attorney-client privilege
and stated that Hervey already had the other listed documents. While the majority
sees nothing wrong with this discovery dispute, ante at 19 n.5, I think it is significant
6In particular, the majority emphasizes the need to protect employers from
unscrupulous employees who interject allegations of discrimination or retaliation as
shields to insulate themselves from discipline after becoming cognizant of their
disfavored status in the workplace. Ante at 15. I note two difficulties with undue
reliance on this line of reasoning. First, while it is important to point out that this
strongly voiced and commonly repeated suspicion of employees motives may be an
important consideration, it is also important to point out that this characterization of
employees is difficult to support at the summary judgment stage. It requires courts
to make strong adverse inferences about the employees states of mind. In general,
I do not believe it is appropriate, at the summary judgment stage, to ascribe such
manipulative motives to employees. Second, just as an instance of protected conduct
by an employee should not be viewed as an impenetrable shield against future
discipline by an employer, the existence of a blemished work record, or an employees
pre-existing status as a less-than-ideal-employee, should not be used as a rug under
which employers and courts may sweep claims of retaliation. Our laws against
discrimination and retaliation are not in place merely to protect employees with
otherwise unblemished records, and we must guard against the establishment of
standards that deprive all but the most deserving employees of jury trials. While I
share the majoritys concern that some employees may attempt to work the system
that it took ten months and judicial intervention before the defendants could respond
that they were not producing any additional documents at all. Hervey notes that she
never refused to meet with Mastin, and a January 6, 2005, directive stated that she
must meet with Mastin every day unless there is a reasonable cause not to. Hervey
argues that she had reasonable causeeither her or Mastins schedule did not permit
a meetingon each occasion that she failed to meet with Mastin.
The timing of the adverse employment actionseach shortly after
developments in the litigationis important in this case. I believe that the timing and
other evidence in this case strongly support an inference of causation for the purpose
of the prima facie case. Additionally, this same evidence raises material questions of
fact as to whether the defendants legitimate, nondiscriminatory reasons for the
adverse employment actions were pretext. The majority and I argue back and forth
on the inferences that should or can be drawn from the facts.6 When genuine issues
by taking protected actions when they believe discipline is imminent, we should not
support granting summary judgment based in large part on suspicions of employees
of fact exist, summary judgment is not appropriate. Credibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facts are
jury functions, not those of a judge, whether he is ruling on a motion for summary
judgment or for a directed verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). Our disputes illustrate that the jury needs to decide this issue. For these
reasons, the summary judgment on the retaliation claim should be reversed and
remanded for trial.


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