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O'Brien v. Dep't of Agriculture: EMPLOYMENT - work conditions not hostile work environment; no constructive discharge, retaliation

1The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
United States Court of Appeals
No. 07-2274
Sandra L. OBrien; Donna E. Peterson, *
Plaintiffs - Appellants, **
Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Department of Agriculture, *
Mike Johanns, Secretary, *
Defendant - Appellee. *
Submitted: February 15, 2008
Filed: July 16, 2008
Before MELLOY, GRUENDER, and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
Appellants, Sandra L. OBrien, a white employee of the United States
Department of Agriculture (USDA), Natural Resources Conservation Service
(NRCS), and Donna E. Peterson, a white former employee of NRCS, appeal the
district courts1 grant of the USDAs motion for summary judgment on all their
claims. We affirm.
We recite the facts in the light most favorable to Appellants, as the nonmoving
parties. Elnashar v. Speedway SuperAmerica, LLC, 484 F.3d 1046, 1055 (8th Cir.
2007). Peterson served as NRCS Human Resources Officer in Little Rock, Arkansas.
Her immediate supervisor was Joseph Manuel, a white employee. Petersons second
line supervisor was Kalven Trice, the State Conservationist for Arkansas and the chief
NRCS official in the state. Trice is African-American. Peterson supervised OBrien,
a Human Resources Specialist. OBriens position entails rating and ranking job
applicants, including utilizing the Delegated Examining Unit (DEU) to rank
applicants from outside the Agency.
In 2003, OBrien was undergoing chemotherapy following several cancer
surgeries. Trice did not respond to OBriens request to work from home in May
2003. Trice approved OBriens second request in September 2003. On October 9,
2003, Trice held a meeting in which he informed OBrien of what Trice perceived to
be deficiencies with the list OBrien issued of the best qualified candidates for two
secretarial positions. OBrien testified that Trice was upset that a friend of his, an
African-American, was not on the list of rated applicants. During the meeting, both
Trice and OBrien raised their voices, and OBrien was reduced to tears. On October
15, 2003, OBrien filed an informal complaint of discrimination with the Equal
Employment Opportunity Commission (EEOC); Peterson provided a supportive
statement. Trice was aware of this. OBrien lodged a formal EEOC complaint on
December 2, 2003.
Following Appellants EEOC activity, Trice scrutinized Appellants travel
documents arising out of a training session they attended in San Diego, California and
issued a memorandum stating that they had acted improperly in relation to their travel
vouchers; did not allow Peterson to serve as acting state administrative officer though
Manuel had designated her to do so; suspended OBriens DEU authority; sent partial
files concerning the secretarial applicants to regional and national headquarters to be
reviewed; did not allow OBrien to attend a training session in Texas; failed to
respond to Petersons request to work from home in a sufficient manner; denied
OBrien a performance award; discussed suspending them; and attempted to institute
disciplinary action against them. In addition to the discrete events described above,
Appellants state, without specificity, that Trice: interfered with their work on a daily
to weekly basis; embarrassed, isolated, and ostracized them; closely scrutinized and
criticized their work; and increased their workload .
OBrien filed a second EEOC complaint on May 29, 2004. Peterson filed an
EEOC complaint on July 14, 2004. On April 30, 2005, Peterson retired; she was
replaced by a white employee. On June 13, 2006, Appellants filed this action against
the USDA under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e to
2000e-17, claiming hostile work environment based on race discrimination and
retaliation. Peterson also alleges constructive discharge.
The district court granted the USDAs motion for summary judgment on all
claims. The court determined that Appellants failed to: (1) satisfy the affecting a term,
condition, or privilege of employment element of a prima facie case of hostile work
environment and (2) show a prima facie case of retaliation because they had not
proffered evidence that Trices treatment of them was materially adverse. The court
also concluded that Petersons constructive discharge claim failed as a matter of law
because the record did not contain evidence suggesting: (1) the requisite objectively
intolerable working conditions or (2) that Trice intentionally created the conditions
in an effort to cause Peterson to quit. Appellants bring this appeal.
Mindful that summary judgment should be granted in employment
discrimination cases only if the evidence could not support any reasonable inference
of discrimination, we review the district courts grant of summary judgment de novo,
affirming if there is no genuine issue of material fact and [the USDA] is entitled to
judgment as a matter of law. Elnashar, 484 F.3d at 1055. In conducting this review,
[w]e view all the evidence in the light most favorable to the non-moving part[ies],
[Appellants], and draw all reasonable inferences in [their] favor. Id.
A. Hostile Work Environment
A racially hostile work environment violates Title VII. 42 U.S.C. 2000e-
2(a)(1); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). To make a prima facie
showing of such a claim, Appellants must demonstrate, among other things, that the
harassment affected a term, condition, or privilege of [their] employment. Elnashar,
484 F.3d at 1058. This requires offering facts that show the harassment to have been
sufficiently severe or pervasive to alter the conditions of [Appellants] employment
and create an abusive working environment as viewed objectively by a reasonable
person. Carpenter v. Con-Way Cent. Express, Inc., 481 F.3d 611, 618 (8th Cir.
2007) (quoting Tademe v. Saint Cloud State Univ., 328 F.3d 982, 991 (8th Cir.
Appellants contend that the district court failed to consider the totality of the
circumstances, examining instead only a few instances of Trices alleged harassment.
Hostile work environment claims are assessed based on the totality of the
circumstances, Vajdl v. Mesabi Acad. of KidsPeace, Inc., 484 F.3d 546, 551 (8th Cir.
2007); however, Appellants seem to argue that the sheer number of alleged instances
of harassment must equate to a racially hostile work environment. We disagree. The
frequency of the alleged harassment is only one of the relevant factors in determining
whether it was sufficiently severe or pervasive. Harris, 510 U.S. at 23. We also
consider its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employees work
performance. Id. Despite the hyperbolic and conclusory nature of Appellants
supporting affidavits, Trices actions, as alleged, lack the requisite severity to be
actionable. See Nitsche v. CEO of Osage Valley Elec. Coop., 446 F.3d 841, 846 (8th
Cir. 2006) (To be actionable, the conduct complained of must be extreme in nature
and not merely rude or unpleasant.) (emphasis added).
Basically, the allegations may be distilled to verbal harassment and increased
scrutiny. Therefore, we find entirely unconvincing Appellants attempt to analogize
this case to Jackson v. Flint Ink N. Am. Corp., 382 F.3d 869 (8th Cir. 2004) and
Mems v. City of St. Paul, Dept. of Fire & Safety Servs., 224 F.3d 735 (8th Cir. 2000),
two cases in which this court reversed the district courts grant of summary judgment
for the employer on hostile work environment claims. The plaintiff in Jackson was
an African-American factory worker who faced his name being written in a shower
at his workplace with an arrow connecting his name with a burning cross and a KKK
sign. 382 F.3d at 870. Mems involved African-American firefighters who: were
required to leave the station promptly at the end of a shift and respond to all calls
wearing full protective gear, while white firefighters were not; endured the display of
racially offensive cartoons; and suffered the destruction of their property. 224 F.3d
at 738-39.
Moreover, Appellants attempt to characterize this fact situation as at least the
kind of borderline case presented by Rorie v. United Parcel Serv., Inc., 151 F.3d 757
(8th Cir. 1998), similarly falls short. The Rorie Court stated,
While we concede that the facts of this case are on the borderline of
those sufficient to support a claim of sexual harassment, we cannot say
that a supervisor who pats a female employee on the back, brushes up
against her, and tells her she smells good does not constitute sexual
harassment as a matter of law.
Id. at 762. Rorie involved physical touching, which distinguishes it from this case.
Rather, the district court correctly analogized this case to Bradley v. Widnall,
232 F.3d 626 (8th Cir. 2000), where we found an employers conduct was not so
severe or pervasive to have affected a term or condition of employment despite the
employees frustrating work situation characterized by her being: excluded from the
decision-making process, treated with disrespect, subjected to false complaints, and
curtailed in her supervisory duties. Id. at 631-32; see Devin v. Schwans Home Serv.,
Inc., 491 F.3d 778, 788 (8th Cir. 2007) (finding allegations amount[ed] to a
frustrating work environment rather than an objectively hostile work environment.);
see also Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1159 (8th Cir. 1999)
(concluding that unfair criticism and being yelled at did not amount to actionable
harassment). Although increased scrutiny might, at some point, amount to a hostile
work environment, nothing in this record warrants such a finding. See Harbuck v.
Teets, 152 F. Appx 846, 847-48 (11th Cir. 2005) (unpublished per curiam) (holding
that employers conduct, including keeping workplace too cold, subjecting employee
to heightened scrutiny, and revealing some information disclosed in prior lawsuit to
her co-workers, did not constitute a hostile work environment); Martinelli v. Penn
Millers Ins. Co., No. 07-1956, 2008 WL 723973, *3 (3d Cir. March 18, 2008)
(unpublished) (finding that employers scrutiny of employees work, while
unpleasant and annoying, did not create the sort of hostile work environment that
would satisfy Title VIIs anti-retaliation provision). Because Appellants working
conditions were not so severe or pervasive that they rose to the level of a racially
hostile work environment, the district court properly granted summary judgment to
the USDA on this claim.
B. Constructive Discharge
Peterson asserts that the district courts grant of summary judgment to the
USDA on her constructive discharge claim is improper because genuine issues of
material fact exist. Even though Peterson resigned, she may still have a Title VII
claim by demonstrating that she was constructively discharged. Carpenter, 481 F.3d
at 616. To do so, she must first show that a reasonable person in [her] situation
would find the working conditions intolerable . . . . Anda v. Wickes Furniture Co.,
517 F.3d 526, 534 (8th Cir. 2008) (quoting Carpenter, 481 F.3d at 616). This burden
is substantial, Fisher v. Forestwood Co., 525 F.3d 972, 980 (10th Cir. 2008), as
[t]he bar is quite high in [constructive discharge] cases. Garrett v. Hewlett-Packard
Co., 305 F.3d 1210, 1221 (10th Cir. 2002); see Poland v. Chertoff, 494 F.3d 1174,
1184 (9th Cir. 2007) (stating that conditions must be sufficiently extraordinary and
egregious in order to establish constructive discharge (quotation omitted)).
Peterson premises her constructive discharge claim on the same allegations we
found insufficient to establish a hostile work environment. As such, her claim fails.
See Penn. State Police v. Suders, 542 U.S. 129, 147 (2004) (A hostile-environment
constructive discharge claim entails something more [than an actionable hostile work
environment].); Tran v. Trs. of State Colls. in Colo., 355 F.3d 1263, 1270-71 (10th
Cir. 2004) (recognizing that a plaintiff has a higher evidentiary burden when seeking
to establish a constructive discharge than an adverse employment action).
Accordingly, the district court properly granted summary judgment for the USDA.
C. Retaliation
Appellants also claim that the district court erred in granting summary judgment
for the USDA on their retaliation claim because there is evidence, in the form of
affidavits of NRCS employees, that Trice treated people who engaged in protected
activity differently than those who had not. In order to establish a prima facie case of
retaliation, Appellants must produce evidence that the alleged retaliation was such that
a reasonable employee would have found the challenged action materially adverse
. . . . Smith v. Internatl Paper Co., 523 F.3d 845, 848 (8th Cir. 2008) (quoting
Carrington v. City of Des Moines, 481 F.3d 1046, 1050 (8th Cir. 2007)). We first
note that Trices conduct at the October 9, 2003 meeting preceded Appellants EEOC
2We also note that the meeting occurred six years after Petersons 1997 EEOC
complaint and three years after OBriens 2003 testimony on Petersons behalf such
that no inference of retaliation can be made between Appellants activities related to
the 1997 case.
3Though Peterson said that Trice denied OBrien a monetary award due to her
EEO activity in September 2004, this bare assertion and speculation as to Trices
motive does not create a genuine issue of material fact. Anda v. Wickes Furniture
Co., 517 F.3d 526, 531 (8th Cir. 2008).
complaints that led to this case,2 and, therefore, cannot constitute retaliation for those
complaints. See Stewart v. Indep. Sch. Dist. No. 196, 481 F.3d 1034, 1042 (8th Cir.
2007). Furthermore, the remaining allegations, viewed as a whole, do not satisfy the
significant harm standard imposed by the materially adverse element. See Clegg
v. Ark. Dept. of Corr., 496 F.3d 922, 929 (8th Cir. 2007). Accordingly, the district
court properly granted summary judgment to the USDA on this claim.3
For the reasons stated above, we affirm.


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