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Kassera v. I.S.D. No. 11: US District Court : EMPLOYMENT | EDUCATION - incidents unpleasant but not objectively intolerable

1Because District 11 moves for summary judgment, the Court recounts the facts in the
light most favorable to Kassera.
NO. 11,
Case No. 07-CV-2292 (PJS/JJG)
Stephen M. Thompson and Tammy P. Friederichs, FRIEDERICHS & THOMPSON, PA,
for plaintiff.
Christopher Harristhal and Julia H. Halbach, LARKIN HOFFMAN DALY &
LINDGREN LTD., for defendant.
Plaintiff Julie Kassera contends that defendant Independent School District No. 11
(District 11) harassed and constructively discharged her because of her age and because she
protested discrimination against minority students. District 11 moves for summary judgment.
For the reasons that follow, the Court grants summary judgment to District 11 on all of Kasseras
Kassera worked for District 11 (also known as the Anoka-Hennepin School District) in
various capacities from 1998 or 1999 through June 2006. In 2001, she became a paraeducator
2Kassera and District 11 have each submitted partially overlapping portions of the
deposition transcripts of Ertl, Kassera, and Hall. Harristhal Aff. Exs. D (Ertl Dep.), B-C
(Kassera Dep.), E (Hall Dep.); Pl. Exs. 1 (Ertl Dep.), 5 (Kassera Dep.), 4 (Hall Dep.) [Docket
No. 34]. The Court cites the relevant pages of each deposition transcript without distinguishing
whether those pages are found in Kasseras or District 11s exhibits.
(para) in District 11s special-education program. Paras provide individual assistance to
In 2003, Kassera was hired as a para in the English as a Second Language (ESL)
department at Champlin Park High School (Champlin Park). Kassera was hired by Ann Ertl,
the head of the ESL department, and Steve Hall, an assistant principal at the school. Ertl Dep.
at 21-22.2
Kassera enjoyed working with students as an ESL para, but she was not happy with how
she was treated by ESL teachers and school officials. Kassera Dep. at 93-95. In early 2006,
Kassera shared her concerns with Ertl and with Heather Fremont, a fellow para and the
designated para representative at Champlin Park. Fremonts duties as para representative
included voicing the paras concerns to school administrators. Kassera Dep. at 61.
In February 2006, Kassera arranged a meeting with Hall, Ertl, and Fremont to further
discuss her concerns. Kassera told them that she felt she was being targeted and harassed and
being singled out and followed and questioned and harassed . . . . Kassera Dep. at 71. Kassera
thought that the meeting went well. Id. at 72 ([I]t ended in a positive note, I thought.). After
the meeting, Hall sent an email to the teachers at Champlin Park conveying Kasseras concerns.
Id.; Hall Dep. at 35-36.
Over the next few months, Kassera continued to feel that she was being treated unfairly
by Ertl and other ESL teachers. Kassera also told someone who worked on multi-cultural
3It is not clear whether Kassera met with Hall, Ertl, and Fremont all at once or instead met
with each separately, but it makes no difference to the outcome of this case.
issues for Champlin Park that students were being mistreated and that she was advocating for
them. Kassera Dep. at 36-37.
Toward the end of the 2005-2006 school year, Kassera took several days off and then
returned to work on Monday, June 5. Kassera Dep. at 118-21. Some time on June 5 or June 6,
Kassera sent Hall an email saying that she thought several students were being mistreated by the
ESL teachers. Id. at 66-68; Harristhal Aff. Ex. S. Kassera also met with Hall, Ertl, and Fremont
in person on June 6 and told them that students were being mistreated.3 Kassera Dep. at 63. Hall
responded that Kassera had overstepped [her] bounds. Id.
Later in the day on June 6, Hall sent Kassera a brief email asking her to attend a meeting
the next day with him, Ertl, Fremont, and a member of District 11s human-resources
department. Harristhal Aff. Ex. I. With respect to the meetings purpose, Hall wrote: We will
be addressing performance concerns and deciding where we should go from here. Id.
Kassera construed Halls email as a threat to fire her. Kassera Dep. at 62. Kassera
decided to resign because she felt that she was being unfairly criticized and disciplined. Id. at 54.
Late in the evening on June 6, she resigned by sending a lengthy email to Champlin Parks
principal. Harristhal Aff. Ex. J. In that email, Kassera said that various students in the ESL
program had been mistreated. She also said that she felt singled out by the ESL department.
Because she had resigned the night before, Kassera did not show up for the June 7
meeting scheduled by Hall. In October 2006, she filed a discrimination complaint with the Equal
Employment Opportunity Commission, which declined to bring charges. Kassera then brought
this action.
A. Standard of Review
Summary judgment is appropriate if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A dispute over
a fact is material only if its resolution might affect the outcome of the suit under the governing
substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a
fact is genuine only if the evidence is such that a reasonable jury could return a verdict for
either party. Ohio Cas. Ins. Co. v. Union Pac. R.R., 469 F.3d 1158, 1162 (8th Cir. 2006). In
considering a motion for summary judgment, a court must view the evidence and the inferences
that may be reasonably drawn from the evidence in the light most favorable to the non-moving
party. Winthrop Res. Corp. v. Eaton Hydraulics, Inc., 361 F.3d 465, 468 (8th Cir. 2004).
B. ADEA Claims
Kassera contends that District 11 discriminated against her because of her age in violation
of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621-34. There is no
dispute that Kassera was over forty years old at the relevant time and therefore was protected by
the ADEA. See 29 U.S.C. 631(a). To prevail on her ADEA claim, though, Kassera must
establish that District 11 intentionally discriminated against her with respect to the
compensation, terms, conditions, or privileges of [her] employment because of her age. 29
U.S.C. 623(a)(1). In other words, Kassera must establish that she suffered adverse
employment action, and that District 11 took that adverse action because of Kasseras age (and
not because of some other reason). See Baucom v. Holiday Cos., 428 F.3d 764, 767 (8th Cir.
2005); Rothmeier v. Inv. Advisers, Inc., 85 F.3d 1328, 1336-37 (8th Cir. 1996).
In ADEA cases, as in other employment-discrimination cases, plaintiffs may establish
discrimination by two methods of proof, the direct method and the indirect method. See Ramlet
v. E.F. Johnson Co., 507 F.3d 1149, 1152 (8th Cir. 2007); Darke v. Lurie Besikof Lapidus & Co.,
550 F. Supp. 2d 1032, 1040-41 (D. Minn. 2008). When a plaintiff has strong evidence of
discrimination such as an admission by a decisionmaker that he or she acted on a forbidden
basis the plaintiff simply submits her evidence to the factfinder. Darke, 550 F. Supp. 2d at
1040. When a plaintiff does not have strong evidence when she instead has attenuated or
indirect evidence of intentional discrimination then the plaintiff may rely on the burdenshifting
framework described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04
Under both methods, however, an essential element of the plaintiffs case is an adverse
employment action by the defendant. See 29 U.S.C. 623(a)(1); Baucom, 428 F.3d at 767;
Rothmeier, 85 F.3d at 1336-37. If the defendant did not take an adverse employment action, then
the plaintiff cannot recover, and the question of the defendants intent is irrelevant. Because no
reasonable jury could find that District 11 subjected Kassera to an adverse employment action,
Kassera cannot recover from District 11 under the ADEA, and thus the Court need not decide
whether the direct or indirect method of proof applies to proving District 11s intent.
Kassera contends that District 11s treatment of her was so bad that it amounted to a
constructive discharge. Pl. Mem. Opp. Def. Mot. S.J. at 17-19 [Docket No. 33]. A constructive
discharge, if proved, qualifies as an adverse employment action. Kerns v. Capital Graphics, Inc.,
178 F.3d 1011, 1016 (8th Cir. 1999). A constructive discharge occurs when an employer
deliberately renders an employees working conditions intolerable and either intends to force the
employee to quit, or should reasonably foresee that the employee will quit. Parrish v. Immanuel
Med. Ctr., 92 F.3d 727, 732 (8th Cir. 1996).
Whether working conditions are intolerable is judged by an objective standard. Id. The
key question is not whether the particular employee found her working conditions intolerable.
Rather, the key question is whether a reasonable person in the employees situation would have
found the same conditions intolerable. Id. It follows that [a]n employee may not be
unreasonably sensitive to his working environment. Johnson v. Bunny Bread Co., 646 F.2d
1250, 1256 (8th Cir. 1981).
Kassera testified in no uncertain terms that, subjectively, she found her working
conditions intolerable. She said: I was targeted. I was harassed. I was followed. I was
belittled. I was it just was so intolerable, I couldnt take it. I was singled out. I was targeted.
Kassera Dep. at 33. Kasseras testimony was less clear as to when the intolerable conditions
began. When asked how long her working conditions had been intolerable, she said that June
2006 was when she felt targeted and that she felt [a] little bit targeted before June 2006. Id. at
92-93. But she later said that for the most part, it was intolerable from February through
June 2006. Id. at 95.
Because constructive-discharge claims must be judged by an objective standard, however,
even if Kassera subjectively felt targeted and harassed from February 2006 onward, those
feelings alone are insufficient to defeat summary judgment. The Court therefore focuses on the
specific instances of objectionable behavior by District 11 personnel identified by Kassera.
According to Kassera, Ertl spoke to Kassera and other older paras in a belittling or rude
way . . . . Kassera Dep. at 110. In particular, Ertl used a different tone of voice in speaking with
Kassera and other older paras. Id. ([I]f . . . I asked [Ertl] a question, it would be, I dont
know. If the . . . other two paras asked a question, it would just be, I dont know. It was the
tones that she used towards us versus .). And at the end of the 2004-2005 school year, Ertl
put some of Kasseras personal belongings in the trash in the course of cleaning up a classroom.
Kassera Dep. at 40; Ertl Dep. at 48-49.
When Kassera used school computers, Ertl sometimes asked what she was doing, and
Kassera took such questions as criticism. Kassera Dep. at 82, 112. Ertl asked Kassera what
lunch periods she was going to and generally asked her about her whereabouts. Id. at 112.
Whenever Kassera came into Ertls office, Ertl would look at the clock. Id. at 133. Ertl also
called a classroom once to find out if Kassera was there. Id.
Further, Ertl admits that she monitored Kasseras attendance and conduct at Halls
request, and Ertl wrote down her observations in a list. Ertl Dep. at 70-71; Harristhal Aff. Ex. F.
The list contains two entries related to training in 2005, one entry about the February 2006
meeting with Kassera, Hall, and Fremont, and many entries dated in April and May 2006. The
entries generally confirm that Ertl was monitoring Kasseras attendance, whereabouts, computer
usage, and other aspects of Kasseras performance.
In addition to Ertl, another ESL teacher, Sue Oltman, paid close attention to Kasseras
whereabouts. On roughly four occasions, Oltman encountered Kassera making copies and said,
Oh, here you are, which Kassera took to mean that Oltman had been looking for her. Kassera
Dep. at 131-32. On at least one occasion in late May 2006, Ertl sent Oltman to look for Kassera,
and Oltman found her in the cafeteria. Harristhal Aff. Ex. F at ISD-000151.
The worst incident, however, according to Kassera, happened on June 6, when Hall told
Kassera that she had overstepped [her] bounds. Id. at 54. Kassera felt that this comment
amounted to retaliation for standing up for the rights of ESL students. Id. at 94.
These incidents demonstrate, at most, that Kassera was closely supervised and unfairly
criticized. The Eighth Circuit has consistently held, however, that the feeling of being unfairly
criticized would not cause a reasonable person to quit her job. Tork v. St. Lukes Hosp., 181 F.3d
918, 919 (8th Cir. 1999); Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1159-60 (8th
Cir. 1999). Although close supervision, criticism, and questioning of the type described by
Kassera may render a work environment objectively unpleasant, it does not render the work
environment objectively intolerable. Accordingly, no reasonable jury could find that Kassera
was constructively discharged by District 11.
C. Title VII Claims
Kassera contends that District 11 violated Title VII by retaliating against her for opposing
discrimination by Champlin Park ESL teachers against minority students. For at least two
reasons, Kassera cannot prevail on this claim.
First, Title VII prohibits employers from retaliating against an employee who has
opposed any practice made an unlawful employment practice under Title VII. 42 U.S.C.
2000e-3(a). Even if Kassera could establish that she opposed discrimination against minority
students, she would be unable to recover under Title VII because such discrimination by a school
is not an unlawful employment practice. See id.; Artis v. Francis Howell N. Band Booster
Assn, 161 F.3d 1178, 1183 (8th Cir. 1998) ([O]pposing an employers actions outside the ambit
of an employment practice is unprotected by Title VII.); Evans v. Kans. City, Mo. Sch. Dist., 65
F.3d 98, 101 (8th Cir. 1995) (holding that a school principals actions in complying with a
desegregation decree related to concerns about the schools responsibility to the student body
and not to employment practices).
Second, although Kassera complained about how certain students were treated, she never
complained that District 11 discriminated against them based on their race. A person who is a
member of a racial minority may be treated poorly because she is a member of a racial minority,
or she may be treated poorly because of the myriad reasons why anyone may be treated poorly.
Federal law prohibits only the former. When asked whether she ever told anyone at District 11
that students were mistreated because of their race, Kassera replied: I didnt say to them that it
was because they were the minority, but when you look at the students, they were all of color.
Kassera Dep. at 37. Further, in her email to Hall before she resigned, Kassera complained about
how students were treated but made no mention of race discrimination. Harristhal Aff. Ex. S.
Likewise, in the email that Kassera sent to Champlin Parks principal when she resigned, Kassera
complained about the treatment of various ESL students and her own (non-minority) children,
but again said nothing about any alleged race discrimination. Harristhal Aff. Ex. J. When asked
at her deposition about this second email and her failure to mention race discrimination in it,
4Kasseras retaliation claim suffers a third problem: It is unlikely that a jury would find
that Kassera suffered the requisite adverse action. To prevail on a retaliation claim under Title
VII, an employee must establish that her employer took materially adverse action that might
well have dissuaded a reasonable person from making or supporting a charge of discrimination.
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). Although this requirement is
somewhat looser than the requirement of an adverse employment action, the antiretaliation
provision of Title VII does not create a cause of action for petty slights or minor annoyances
that often take place at work and that all employees experience. Id. The supervision and
criticism experienced by Kassera was likely not materially adverse because it likely would not
have dissuaded a reasonable employee from opposing discrimination against students at
Champlin Park.
Kassera said: I dont bring up race in general. Kassera Dep. at 182. Thus, by her own
admission, Kassera did not complain of race discrimination.4
Based on the foregoing and on all of the files, records, and proceedings herein, IT IS
1. The motion of defendant Independent School District No. 11 for summary
judgment [Docket No. 18] is GRANTED.
2. Plaintiffs complaint is DISMISSED WITH PREJUDICE AND ON THE
Dated: October 15, 2008 s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge


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