Opinion
Civ 01-1029, 2004 D.S.D. 15.
August 18, 2004
MEMORANDUM DECISION AND ORDER
[¶ 1] Plaintiff's complaint alleges that she was discriminated against on the basis of her race (Native American) and sex (female), that she suffered reprisal, and was the victim of a hostile work environment, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Defendant has moved for summary judgment pursuant to Fed.R.Civ.P. 56(c).
Although plaintiff names Aberdeen Area Office, Indian Health Services, and U.S. Department of Health and Human Services as a defendant or defendants, the only proper defendant for a Title VII cause of action is the head of the agency. See 42 U.S.C. § 2000e-16(c).
FACTUAL BACKGROUND
[¶ 2] Karen Boyle ("plaintiff") is a Native American female. She was hired by Rick Sorenson ("Sorenson") on April 16, 1995, to work for the Aberdeen Area Indian Health Service ("IHS") as a project officer (also referred to as a "health systems specialist"). Tribes contract with the Office of Tribal Activities for IHS and project officers such as plaintiff provide technical assistance for 638 contracts for health services and for "buy Indian" contracts.[¶ 3] Sorenson has been at all times material the associate director for the office and has held that position since 1994. Sorenson was plaintiff's supervisor the entire time she was employed with IHS in Aberdeen. Sorenson also supervised Jerald Traversie ("Traversie"), Gail Martin ("Martin"), Michelle Kopecky ("Kopecky"), Sandy Nelson ("Nelson"), Patrick Giroux ("Giroux"), Desiree Redday ("Redday"), Dennis Renville ("Renville"), and Letha Leader Charge ("Leader Charge"). From August 5, 1997, to October of 1998, in addition to plaintiff, Traversie, Nelson, and Martin were project officers. Traversie, Nelson, Giroux, and Renville are male. Martin, Kopecky, Redday, and Leader Charge are female. All of the individuals under Sorenson's supervision named above are Native American.
[¶ 4] In her complaint, plaintiff alleges "constant and continued discrimination" by Sorenson and describes conduct she believes to have been discriminatory. The first claimed instance of discriminatory conduct occurred on August 5, 1997. In the course of making work assignments, Sorenson cancelled plaintiff's work-related travel to Portland, Oregon. Plaintiff claims that Sorenson handed down a new work assignment concerning negotiations with the Ponca tribe only a couple of hours prior to her departure and had no just cause or excuse for cancelling her travel arrangements. In her deposition, plaintiff claims that she could have either finished the tasks assigned by Sorenson or others in the office could have completed them. Sorenson claims that the follow-up work associated with the Ponca negotiations was more of a priority than plaintiff's previously scheduled travel to Portland
[¶ 5] After learning that her travel to Portland had been cancelled, plaintiff and Sorenson apparently had a confrontation. Sorenson claims that plaintiff angrily asked why she had not been notified earlier and took a discourteous and disruptive tone, making other staff present at the meeting feel uncomfortable. On August 12, 1997, Sorenson sent a written reprimand to plaintiff. The letter states that Sorenson felt that plaintiff was rude, disruptive, and discourteous in the meeting. The letter was placed in plaintiff's official personnel folder. According to plaintiff's deposition, she filed a grievance as to the reprimand letter. As a result of the grievance, the reprimand was removed from her personnel folder after one year.
[¶ 6] Plaintiff also complains about a change in the chain of command During plaintiff's employment as a project officer, IHS maintained an order of succession, which essentially provided the order in which project officers assumed the responsibilities of Sorenson in his absence. Prior to October 6, 1997, plaintiff was second in charge, behind Traversie. Martin and Nelson were third and fourth, respectively. Sorenson sent out a memorandum on October 6, 1997, which revised the order of succession to move plaintiff from second to third. Martin, a female, moved ahead of plaintiff to second. Plaintiff claims that there was no explanation given for this change. Sorenson states that the change was made because he had more confidence in Traversie and Martin, especially given the recent problems he had with plaintiff. Plaintiff apparently approached Sorenson about this change and asked what caused it. Sorenson claims that plaintiff was angry and used a disrespectful and loud voice when she approached him. In her deposition, plaintiff disagrees with Sorenson's characterization of her demeanor.
[¶ 7] Thereafter, Sorenson wrote a letter to plaintiff in which he proposed that she be suspended for five days. Plaintiff claims that there was no justification for this suspension. In his letter, Sorenson claimed that the suspension was based on plaintiff's continued disruptive behavior, including the angry and disrespectful tone she used with him when she approached him about the changes in the chain of command Moreover, Sorenson cited plaintiff's refusal to sign time cards when asked to do so by Kopecky, an administrative assistant. Sorenson also discussed plaintiff's aggressive response toward Kopecky twenty minutes after Sorenson specifically asked plaintiff not to approach Kopecky regarding the same time card issue. This letter proposing to suspend plaintiff had to be approved by the individual who holds the employee relations position. Consequently, the letter was not issued until January 7, 1998. In plaintiff's complaint, it states that plaintiff received a three-day suspension from February 25, 1998, to February 27, 1998.
It is not entirely clear from the record why the suspension served was three days, rather than five days as proposed in Sorenson's letter. Plaintiff states in her deposition that the suspension was reduced to three days after she went through grievance procedures.
[¶ 8] Plaintiff also claims that, in January and March of 1998, her requests to work overtime were denied while other employees working in similar positions were given permission and authorized to work overtime. To request overtime, an employee must complete an "individual overtime request," which must first be signed by an employee's immediate supervisor. The supervisor may approve, partially approve, or disapprove the request. The supervisor then sets forth the number of overtime hours which are authorized. Sorenson states that, in considering overtime requests, he considers the budget, the individual's work load at the time, the priority of the work load involved, the overall work schedule, and the coverage at the office, including if there is enough time during the normal workday to complete the task.
[¶ 9] Defendant asserts that project officers, such as plaintiff, are hired to work a forty-hour work week and overtime is not guaranteed as part of a project officer's job. In a November 23, 1999, affidavit submitted to the Equal Employment Opportunity Commission ("EEOC") investigator, Sorenson acknowledged that he denied plaintiff overtime in January and March of 1998. Sorenson claims that the January overtime was denied because plaintiff requested the overtime to complete a status report that had been assigned to her in September of 1997 and Sorenson felt that she had adequate time to complete the assignment without overtime. A review of the record reveals that the male project officers, Traversie and Nelson, were not approved for any overtime in January of 1998.
[¶ 10] Likewise, in March of 1998 when plaintiff requested overtime because of workload and office needs, Sorenson claims that plaintiff had sufficient time during regular hours to complete the work for which she was requesting overtime. In that same month, Traversie was approved for four hours of overtime and Nelson was approved for forty-five hours of overtime. The record does reveal that, on another occasion in March of 1998, plaintiff requested forty hours of overtime and was approved for forty hours of overtime.
[¶ 11] Plaintiff also sets forth a number of examples of travel requests that were denied by Sorenson. In February of 1998, Sorenson denied plaintiff's travel request to go meet with the Crow Creek Sioux Tribe. Sorenson claims that this request was denied because he wanted plaintiff to catch up on her work and her presence was not necessary, given that the meeting concerned finances, an area that was handled by the contracting office and not the responsibility of the project officer. In April of 1998, Sorenson denied plaintiff's travel request to go to Sioux Falls to meet with the South Dakota Urban Indian Health board of directors. The board of directors' meeting was to review applications to fill a position for a physician. Sorenson states that he denied this request because he felt that the hiring decision was not something with which the office should concern itself. On July 1, 1998, Sorenson denied plaintiff's request to attend the urban program meeting in Rockville, MD, to take place on July 14, 1998. Sorenson claims that he wanted all the project officers to attend the tribal health director's meeting in Flandreau, South Dakota, which was scheduled for the same date. In any event, plaintiff ended up going to Rapid City on that date to handle another matter concerning the renewal of IHS contracts. On September 15, 1998, Sorenson denied plaintiff's request to attend the area urban coordinators' meeting in Anchorage, Alaska, to be held from October 6, 1998 to October 8, 1998. Sorenson claims that he did not believe it was a priority for plaintiff to attend, considering that it would require her to be out of the office for one week and three individuals from the office were already attending. Plaintiff claims that there was no justification for denying any of these travel requests.
[¶ 12] Plaintiff also cites another disciplinary issue with Sorenson in her complaint. On June 29, 1998, Sorenson gave plaintiff a letter from the Rapid City Indian Health Board and instructed her to prepare a response for his signature. The health board had requested a two week extension for submitting a proposal. Sorenson claims that he instructed plaintiff to ask the contracting office if they could approve a no cost extension to the contract. Sorenson claims that, rather than checking with the contracting office, plaintiff sent him an e-mail stating what she believed were the options available to the contracting office. Plaintiff submitted a first draft to Sorenson on June 30, 1998. Sorenson reviewed the draft on July 1, 1998, made notes on the draft, and asked her to check with the contracting office as he had instructed. Sorenson claims that he then returned the draft to plaintiff, told her that he did not agree with the extension, and asked her to change the letter accordingly. Later the same day, plaintiff returned another draft to Sorenson. Despite his earlier suggestions, plaintiff's draft approved the extension. Sorenson repeated that he was not going to approve the extension. Plaintiff then revealed that she had already approved the extension on the telephone.
[¶ 13] Plaintiff claims that Sorenson did not specifically say that he would not approve the extension. Rather, she claims that he merely said he was opposed to approving it but ultimately told her to draft the approval letter for his signature. Although Sorenson made various notes on the letter suggesting changes that should be made, he made no handwritten notes on the letter to suggest that the extension should be denied.
[¶ 14] Sorenson honored the commitment made by plaintiff but determined that disciplinary action was necessary. In a letter dated August 21, 1998, Sorenson proposed to suspend plaintiff for fourteen days for insubordination. Plaintiff was suspended for ten days without pay, starting on October 25, 1998.
As with the previous suspension, this actual suspension served by plaintiff was shorter than what Sorenson proposed, but it is not entirely clear why the suspension was shortened.
[¶ 15] Plaintiff contacted an EEOC counselor for the first time on November 3, 1998, when she spoke with Pauline Bruce ("Bruce"), the EEOC manager for Aberdeen IHS. Bruce provided plaintiff a list of EEOC counselors. Plaintiff met with EEOC counselor Donald Annis ("Annis") on November 9, 1998, and he was formally assigned to her case on November 20, 1998. A counselor's report was completed by January 7, 1999. On January 13, 1999, plaintiff was furnished with a copy of the report and a written notice of the right to file a discrimination complaint.
[¶ 16] Plaintiff's EEOC report reveals that she claimed she was discriminated against based on her sex (gender). The report gives no indication of any claimed discrimination based on her race. The report lists a number of areas of possible discrimination with boxes that are to be checked if applicable. Defendant points out that plaintiff made no marks to suggest that discrimination was based on "race/color," "reprisal," or "other." According to Bruce, the "other" category is generally checked in the event an employee is complaining of a hostile work environment.
[¶ 17] Plaintiff left the Aberdeen IHS office on December 29, 2000. She transferred to the Indian Health Service headquarters office in Rockville, Maryland, where she continued to work as a health systems specialist. A final agency decision from the EEOC was issued on September 11, 2001, denying plaintiff any relief.
DISCUSSION I. SUMMARY JUDGMENT
[¶ 18] The summary judgment standard is well known and has been set forth by this court in numerous opinions. See Hanson v. North Star Mutual Insurance Co., 1999 DSD 34 ¶ 8, 71 F.Supp.2d 1007, 1009-1010 (D.S.D. 1999), Gardner v. Trip County, 1998 DSD 38 ¶ 8, 66 F.Supp.2d 1094, 1098 (D.S.D. 1998), Patterson Farm, Inc. v. City of Britton, 1998 DSD 34 ¶ 7, 22 F.Supp.2d 1085, 1088-89 (D.S.D. 1998), and Smith v. Horton Industries, 1998 DSD 26 ¶ 2, 17 F.Supp.2d 1094, 1095 (D.S.D. 1998). Summary judgment is proper where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Donaho v. FMC Corp., 74 F.3d 894, 898 (8th Cir. 1996). The United States Supreme Court has held that:
The plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). "A material fact dispute is genuine if the evidence is sufficient to allow a reasonable jury to return a verdict for the non-moving party." Landon v. Northwest Airlines, Inc., 72 F.3d 620, 634 (8th Cir. 1995). In considering the motion for summary judgment, this Court must view the facts in the light most favorable to plaintiff and give plaintiff the benefit of all reasonable inferences that can be drawn from the facts. Donaho, 74 F.3d at 897-98.
[¶ 19] In employment discrimination cases under Title VII, summary judgment should be used sparingly. Smith v. St. Louis University, 109 F.3d 1261, 1264 (8th Cir. 1997), and Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994). However, it is appropriate where one party has failed to present evidence sufficient to create a jury question as to an essential element of the party's claim. Chock v. Northwest Airlines, Inc., 113 F.3d 861, 865 (8th Cir. 1997). To put it another way, "summary judgment should be granted where the evidence is such that it would require a directed verdict for the moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 2512 (1986) (citations omitted).
[¶ 20] The moving party bears the burden to demonstrate that there is no issue of material fact. However, the plaintiff may not simply point to allegations made in her complaint but must identify and provide evidence of specific facts creating a triable controversy. Jaurequi v. Carter Mfg. Co., 173 F.3d 1076, 1085 (8th Cir. 1999). The court is not required to sort through a voluminous record in an effort to find support for the plaintiff's allegations. Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1113-14 (8th Cir. 2004); see also Johnson v. City of Shorewood, 360 F.3d 810, 817 (8th Cir. 2004) ("It is not a court's obligation to search the record for specific facts that might support a litigant's claim[.]").
[¶ 21] It should be noted that plaintiff has failed to meet the procedural requirements of the Federal Rules of Civil Procedure and the local rules of the District of South Dakota. Fed.R.Civ.P. 56(e) provides in pertinent part:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party (emphasis added).
[¶ 22] Plaintiff's brief in opposition to summary judgment includes no citations to any record facts and obliquely references her complaint, her answers to interrogatories, and her deposition testimony. This is not sufficient, as a matter of law. Also, the plaintiff did not provide the court with her own statement of material facts, as required by D.S.D. LR 56.1(C). Because defendant's statement of material facts has not been controverted, "all material facts set forth in the statement required to be served by the moving party will be deemed to be admitted." D.S.D.LR 56.1(D). Technically, therefore, the plaintiff has admitted that she has failed to provide an inference of discrimination as to her causes of action for disparate treatment discrimination and hostile work environment. Defendant's Statement of Material Facts ¶ 55. She has also admitted all of the legitimate reasons for Sorenson's actions, as set forth by the defendant. Defendant's Statement of Material Facts ¶¶ 23-32; 39-41; 41-55.
[¶ 23] Plaintiff claims that the record is
replete with incidences of discrimination or discriminatory conduct, or, in the alternative, at least establishes enough dispute and difference of opinion and interpretation to merit the denial of Defendants' Motion for Summary Judgment and entitling and granting Plaintiff the right to go forward to substantiate and prove her discriminatory claim.
Plaintiff's Brief at 5. Contrary to plaintiff's assertion, she is required to explain exactly how it is that she was discriminated against, rather than simply pointing to the record, disagreeing with the defendant, and making bald assertions that a genuine issue of material fact exists. "In resisting a properly supported motion for summary judgment, the plaintiff has an affirmative burden `to designate specific facts creating a triable controversy.'" Crossley, 355 F.3d at 1113 (quotingJaurequi, 173 F.3d at 1085). The court believes that summary judgment could be properly granted based solely on plaintiff's failure to comply with the rules of procedure and failure to set forth specific facts supporting her claim. Nonetheless, in an abundance of caution, the court will consider each of plaintiff's claims.
II. DISCRIMINATION
A. Disparate Treatment Claim
[¶ 24] Since 1964, Title VII has prohibited an employer from treating an employee differently because of race or gender with respect to the terms, conditions, or privileges of employment. 42 U.S.C. § 2000e-2(a)(1). In 1991, Congress amended Title VII to make clear that, "[e]xcept as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m). See also Desert Palace, Inc. v. Costa, 539 U.S. 90, 94 (2003) (quoting the statute).
[¶ 25] For Title VII disparate treatment claims based on inferential rather than direct evidence, the court is guided by the McDonnell Douglas test fashioned by the Supreme Court. McDonnell Douglas v. Green, 411 U.S. 792 (1973). First, plaintiff has the initial burden to demonstrate (1) that she is a member of a protected group; (2) that she was meeting the legitimate expectations of her employer; (3) that she suffered an adverse employment action; and (4) that the circumstances give rise to an inference of discrimination because similarly situated employees who are not members of the protected group were treated differently.Jacob-Mua v. Veneman, 289 F.3d 517, 521 (8th Cir. 2002),Taylor v. Southwestern Bell Tel. Co., 251 F.3d 735, 740 (8th Cir. 2001), and Whitley v. Peer Review Sys., Inc., 221 F.3d 1053, 1055 (8th Cir. 2000). If this burden is met, the defendant must articulate legitimate nondiscriminatory reasons for its challenged action. McDonnell Douglas, 411 U.S. at 802. Once the defendant has carried this burden, the burden shifts back to the employee to prove, by a preponderance of the evidence, that the legitimate reasons given by the defendant are not the true reasons but are merely a pretext for discriminatory acts. Id. at 804-05; see also Whitley, 221 F.3d at 1055, and Chock, 113 F.3d at 863. Within this framework, "the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).
The vitality of the McDonnell Douglas framework has recently been called into question by the United States Supreme Court decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). The court held that direct evidence of discrimination is not required for a plaintiff to obtain a mixed motive jury instruction under Title VII. Nonetheless, plaintiff does not argue that the court should apply Desert Palace. In cases involving circumstantial evidence, the Eighth Circuit has continued to apply the McDonnell Douglas test. See e.g. Woods v. Perry, 375 F.3d 671 (8th Cir. 2004), Groves v. Cost Planning and Mgmt.Int'l, Inc., 372 F.3d 1008 (8th Cir. 2004), and Allen v. City of Pocahontas, 340 F.3d 551 (8th Cir. 2003). In addition, plaintiff has presented no evidence, direct or circumstantial, from which a reasonable jury could logically infer that race or sex was a motivating factor in the manner of treatment she received at IHS. See Desert Palace, 539 U.S. at 101 (citing 42 U.S.C. § 2000e-2(m)).
[¶ 26] Turning to whether plaintiff has established a prima facie case of discrimination, there is no dispute that plaintiff, as a female and a Native American, is a member of a protected class. Also, defendant does not contend that plaintiff failed to meet employment expectations. Nonetheless, defendant contends that, as a matter of law, plaintiff has failed to make a prima facie showing of disparate treatment discrimination. Specifically, defendant points to a lack of an allegation that any adverse employment action was taken against plaintiff and a lack of evidence that similarly situated persons outside the class were treated differently.
[¶ 27] It is clear from Eighth Circuit case law that "[a]n adverse employment action is exhibited by a material employment disadvantage, such as change in salary, benefits, or responsibilities." Jacob-Mua, 289 F.3d at 522 (quoting LaCroix v. Sears, Roebuck, Co., 240 F.3d 688, 691 (8th Cir. 2001)). An adverse employment action could also be a tangible change in working conditions that produces a material employment disadvantage. Jones v. Reliant Energy — ARKLA, 336 F.3d 689, 691 (8th Cir. 2003). Although actions short of termination may certainly constitute an adverse employment action, "[n]ot everything that makes an employee unhappy is an actionable adverse employment action." LaCroix, 240 F.3d at 691.
[¶ 28] The court agrees with the defendant that, with the exception of the three day suspension, the ten day suspension, and possibly the denial of overtime, the acts alleged in plaintiff's complaint are not adverse employment acts. Plaintiff cites a number of instances where her travel plans were cancelled or her travel requests were denied. Sorenson's decisions with respect to plaintiff's ability to travel on the job had virtually no effect on her responsibilities as a project officer and certainly had no effect on her salary or benefits. These occasions no doubt left the plaintiff feeling dejected but they are not the type of employment actions that give rise to an action under Title VII. See e.g. Murray v. Chicago Transit Authority, 252 F.3d 880, 888 (7th Cir. 2001) (employer's refusal to approve travel after plaintiff refused a dinner invitation did not constitute a tangible employment action).
[¶ 29] Recent Eighth Circuit case law demonstrates that a letter of reprimand does not constitute an adverse act. In Jones v. Fitzgerald, 285 F.3d 705 (8th Cir. 2002), the defendants claimed that the plaintiff suffered no adverse employment action. In that case, the plaintiff was involuntarily transferred, negative memoranda were placed in her file, and she was subject to two internal investigations. The court determined that, considered individually or collectively, none of these amounted to an adverse employment act. In the instant case, plaintiff's letter of reprimand only remained in her personnel file for one year. The letter in this case can be aptly described as a "slap on the wrist" and is not akin to a change in salary, benefits, or responsibilities.
[¶ 30] Likewise, the change in the chain of command is not an adverse employment action. Frankly, it is a rather menial detail, as the plaintiff was merely moved from second in charge to third in charge. The only time that this change could even manifest itself is if both Sorenson, the associate director, and Traversie, first in charge, were both out of the office. Switching the order of succession could not possibly have amounted to anything more than a slight change in job responsibilities for plaintiff.
[¶ 31] There is some question as to whether the denial of overtime could amount to an adverse employment act in this particular case. In plaintiff's position, she was certainly not entitled to overtime when she wanted it. Rather, the determination of whether overtime would be granted was contingent on a number of factors. Such factors include the budget, the priority of the work to be accomplished, the opportunity the employee had to do the work within the normal hours, and other factors which are better left to be decided by a person in a managerial position, not a federal court. See Edmund v. MidAm. Energy Co., 299 F.3d 679, 686 (8th Cir. 2002) (federal courts do not act as some kind of super-personnel department passing on the wisdom or the fairness of judgments made by the employer, unless the judgments were intentionally discriminatory).
[¶ 32] All of the above being said, it is clear that plaintiff has alleged at least two adverse employment acts. The court has no trouble concluding that the two suspensions were adverse employment acts. Plaintiff was required to stay home from work without pay for two separate periods of time during her employment. Defendant seems to concede that the suspensions were adverse acts. Viewing the evidence in the light most favorable to plaintiff, the third element of plaintiff's prima facie case is satisfied.
[¶ 33] The remaining element of the plaintiff's prima facie case requires that she offer some evidence which would give rise to an inference of unlawful discrimination. Marquez v. Bridgestone/Firestone, Inc., 353 F.3d 1037, 1038 (8th Cir. 2004). Plaintiff bears the burden to demonstrate by a preponderance of the evidence that there were similarly situated individuals outside the protected class who were treated differently. Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000). To be similarly situated, the individuals "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." Id. The tests to determine whether plaintiff was "similarly situated" to other employees vary at each stage of a McDonnell Douglas analysis. We know that at the prima-facie stage the test is "not onerous." However, at the third stage (i.e., to prove pretext), it becomes "rigorous." Williams v. Ford Motor Co., 14 F.3d 1305, 1308 (8th Cir. 1994).
[¶ 34] First, as to plaintiff's contention that she was discriminated against based on her race, she cannot establish this element of her prima facie case. All of the individuals at IHS supervised by Sorenson were Native American. There were no employees outside of the protected class who plaintiff can point to and show preferential treatment. In any event, the record is absolutely devoid of any evidence that Sorenson's actions were motivated by any sort of racial animus.
[¶ 35] As to the gender discrimination claim, the evidence presented in this case does not even suggest that the male project officers at IHS were treated more favorably than plaintiff. During the time frame of plaintiff's allegations of discrimination, there were two male project officers, Nelson and Traversie.
[¶ 36] Plaintiff alleges that she was denied overtime in January of 1998 while others in her department were permitted to work overtime. As to Nelson and Traversie, this assertion is simply false. Neither of the two male project officers were permitted to work overtime in January. Second, plaintiff's allegation that she was denied overtime in the month of March is equally misleading. According to the evidence submitted, Nelson and Traversie were approved for overtime in March of 1998. Nelson was approved for forty-five hours and Traversie was approved for four hours. What plaintiff apparently overlooks is that she requested and was approved for forty hours of overtime in March of 1998. As to the denial of overtime, plaintiff has failed to show that similarly situated employees outside the protected class, namely the male project officers, were treated differently.
[¶ 37] Plaintiff's numerous allegations concerning the denial of travel requests are equally unavailing. As the court has already discussed, the denial of travel is not an adverse employment act. Consequently, it is only discussed here for purposes of illustrating how similarly plaintiff was treated to the male project officers. Plaintiff had seven travel requests approved in 1997 and 13 in 1998. Traversie was approved for three requests in 1997 and 14 in 1998. Nelson was approved for none in 1997 and 10 in 1998. Cumulatively, over the period of her allegations, plaintiff actually had more travel requests approved than her male counterparts. This gives rise to no inference of discrimination. Defendant also points out that when plaintiff was moved down the chain of command, a female project officer, Martin, was her replacement at second in charge. No inference of discrimination arises by virtue of this action. Plaintiff also raises no contention that either Nelson or Traversie behaved similarly in the workplace and received lesser or no punishment.
[¶ 38] Plaintiff offers nothing more than her opinion that other employees were treated more favorably. "[Plaintiff] must substantiate her allegations with more than `speculation, conjecture, or fantasy' in order to survive summary judgment."Marquez, 353 F.3d at 1038 (quoting Putman v. Unity Health Sys., 348 F.3d 732, 733 (8th Cir. 2003)). Throughout plaintiff's deposition, she repeatedly states that she does not know why Sorenson did the things he did or treated her the way he did. In fact, her deposition testimony makes hardly any mention of Sorenson treating her as he did because of her gender. Plaintiff argues that the issue before the court is not why Sorenson treated plaintiff the way he did and his motivation is irrelevant. Instead, plaintiff claims that it is simply the fact that he did treat her as he did. However, as part of her prima facie case, plaintiff was required to offer some evidence which would give rise to an inference of unlawful discrimination.Marquez, 353 F.3d at 1038 (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 (1981). If plaintiff's theory would be accepted, a Title VII action could be maintained against an employer who treated employees differently for any reason. Title VII is designed to prevent discrimination based on impermissible factors, such as race or gender. It is not a device to ensure that those in managerial positions treat employees nicely.
[¶ 39] As the record stands, the court has no idea why Sorenson treated plaintiff as she claims he did. In order to establish a prima facie case of gender discrimination, plaintiff has to offer evidence which would merely suggest that Sorenson treated plaintiff as he did because of her gender. Plaintiff has failed in this regard. Consequently, because plaintiff has failed to prove all of the elements of her prima facie case, there are no genuine issues of material fact as to plaintiff's disparate treatment claim.
[¶ 40] Even if the court were to accept that plaintiff established a prima facie case, there is yet another hurdle under the McDonnell Douglas framework which has not been met by plaintiff. Assuming arguendo that a prima facie case of gender discrimination has been established, the burden then shifts to the defendant to articulate legitimate, non-discriminatory reasons for the actions taken. McDonnell Douglas, 411 U.S. at 802. The burden on the defendant is one of production, not persuasion, and involves no credibility assessment. Reeves, 530 U.S. at 142. Defendant sets forth legitimate non-discriminatory reasons in a declaration from Sorenson and these reasons were set forth in the factual background above. Defendant's statement of material facts also presented the same legitimate reasons for the actions taken by Sorenson. As previously discussed, all of those reasons are admitted by plaintiff, in light of her failure to dispute defendant's statement of material facts.
[¶ 41] After the defendant submits its non-discriminatory reasons, in essence rebutting the presumption of discrimination raised by plaintiff's prima facie case, the burden shifts back to the plaintiff to present evidence to the district court which could support a finding that defendant's reasons were pretextual. "`Probably the most commonly employed method of demonstrating that [a defendant's] explanation is pretextual is to show that similarly situated persons of a different race or sex received more favorable treatment.'" Erickson v. Farmland Indus., Inc., 271 F.3d 718, 726-27 (8th Cir. 2001) (quoting 1 Lex K. Larson, Employment Discrimination § 8.04 (2d ed. 2001)). As previously discussed, this is something that plaintiff has not shown.
[¶ 42] In Allen v. City of Pocahontas, 340 F.3d 551 (8th Cir. 2003), the plaintiff alleged age and gender discrimination after she was replaced by a younger male employee. Defendant offered legitimate nondiscriminatory reasons for terminating the plaintiff, namely insubordination and tenant complaints. Plaintiff was not able to come up with any evidence that these reasons were pretextual. The Court of Appeals observed the following:
Allen herself asserted that she did not think she was terminated for her age. When asked whether she was terminated because of her gender, she stated "probably," "I really don't know," and "I can't say for sure." Beyond these equivocal and unsupported assertions by Allen, there is no indication in the record at all that Allen's age or gender played any role in the Board's decision to terminate her.Id. at 558.
[¶ 43] There are no facts in this record that support the conclusion that Sorenson's stated reasons for denying overtime, refusing travel requests, changing the chain of command, and imposing suspensions were a pretext for intentional race or gender discrimination. Indeed, plaintiff maintained throughout her deposition that she did not know why Sorenson acted the way he did and made virtually no mention of racial or sexual animus on Sorenson's part. For the court to reach the conclusion that defendant's proffered reasons were pretextual, it would have to rely on plaintiff's speculative assertions in her complaint, rather than evidence in the record. No reasonable jury could conclude that defendant's proffered reasons were pretextual. Consequently, summary judgment is appropriate as to plaintiff's disparate treatment claim.
B. Hostile Environment Claim
[¶ 44] In order to prove that she was subjected to a hostile work environment in violation of Title VII, plaintiff must show that: (1) she belongs to a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on race, sex, or national origin; and (4) the harassment affected a term, condition, or privilege of employment. Howard v. Burns Bros., Inc., 149 F.3d 835, 840 (8th Cir. 1998) (citing Kopp v. Samaritan Health Sys., Inc., 13 F.3d 264, 269 (8th Cir. 1993)); see also Burlington Indus. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
In instances where the harassment is committed by a co-worker, the plaintiff must also show that the employer "knew or should have known of the conduct and failed to take proper remedial action." Joens v. John Morrell Co., 354 F.3d 938 (8th Cir. 2004) (quoting Dhyne v. Meiners Thriftway, Inc., 184 F.3d 983, 987 (8th Cir. 1999)). On the other hand, if the harassment was committed by a supervising employee, the employer can be held vicariously liable for the harassment unless the employer can establish that it exercised reasonable care to prevent and correct promptly any harassing behavior and show that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998). In this case, the harassment was allegedly committed by Sorenson and both parties concede that Sorenson was plaintiff's supervisor during the duration of her employment with the IHS Aberdeen office.
[¶ 45] "Hostile work environment harassment occurs when `the workplace is permeated with discriminatory intimidation, ridicule, and insult . . . that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Jacob-Mua, 289 F.3d at 522 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)). In Harris, the Supreme Court explained that, in order to be actionable under the statute, an objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be offensive. Courts are directed to consider all of the circumstances in determining whether the work environment is sufficiently hostile or abusive. Harris, 510 U.S. at 23. This includes the frequency and severity of the discriminatory conduct, whether it is physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Id. The conduct must be extreme and not merely rude or unpleasant to affect the terms and conditions of employment. Faragher, 524 U.S. at 788. Title VII does not authorize courts to impose a "general civility code." Id.
[¶ 46] Plaintiff attempts to rely on the allegations in her complaint and a few other incidents in support of her hostile environment claim. When asked what was hostile about her work environment, plaintiff discussed four incidents. First, plaintiff described an occasion where Traversie stopped by her office and yelled at her for parking in his parking spot. As a result, plaintiff drafted an incident report describing the incident with Traversie and gave it to Sorenson. Plaintiff claims that Sorenson gave this incident report to Traversie to allow him to review it and respond. She feels that this was inappropriate.
[¶ 47] Second, plaintiff discussed the circulation of an article throughout the office. Some time after plaintiff received the letter proposing her first suspension, plaintiff received a copy of a newspaper article with red ink circling a statement that, according to her own words in her deposition, essentially said "you don't need to send me home for 14 days to get my attention. You're either going to be a good employee and work well or you're going to be fired." Plaintiff claims that this was directed at her, as she was the only one at IHS who had received a suspension.
[¶ 48] Third, plaintiff claimed that Sorenson never talked to her about anything. She claims that Sorenson regularly accepted what other employees told him and never looked to plaintiff to discuss her side of things. Yet she claims Sorenson should not have asked Traversie about plaintiff's complaints about Traversie.
[¶ 49] Fourth, plaintiff cited a remark made by Sorenson. According to plaintiff's deposition, Sorenson had told plaintiff about a gift that he had purchased for his wife, and she responded by saying "what a nice husband I wish I had a husband like that." In response, Sorenson apparently said something to the effect of "you had your chance." Plaintiff claims that this made her feel uncomfortable.
[¶ 50] The Eighth Circuit considered a somewhat similar set of facts in Bradley v. Widnall, 232 F.3d 626 (8th Cir. 2000). Bradley, an African American woman, was a certified and licensed medical records administrator hired by the Erhling Bergquist Hospital at the Offutt Air Force Base in Nebraska in 1984. She was promoted and upgraded to a Medical Records Administration Specialist in 1991. In 1994, the Air Force Surgeon General's Office implemented a reorganization plan that resulted in the restructuring of Bradley's duties. It was after these changes that Bradley alleged her Air Force supervisors engaged in a campaign of racial discrimination resulting in a hostile work environment. Bradley claimed that the supervisors made various negative comments as to her, removed her decision-making authority, encouraged her employees to bypass the chain of command, gave white employees preferential treatment, instructed employees to spy on her activities, had disparaging memos placed in her file, attempted to "set her up" to fail a hospital inspection, and generally treated her in a disrespectful and discriminatory manner. Id. at 630. The record revealed that Bradley's department was replete with personality conflicts and personnel problems. The court held that "[w]hile the conduct cited by Bradley may have resulted in a frustrating work situation, we do not believe that it was so severe or pervasive as to have affected a term, condition, or privilege of her employment." Id. at 631-32. The court went on to note that
Bradley has also been unable to provide any evidence, either directly or by inference, beyond her own speculation, that her alleged mistreatment was due to her protected status . . . To the contrary, close scrutiny of the record reveals that the majority of the problems encountered by Bradley stemmed from inter-office politics and personality conflicts rather than race based animus.Id. at 632.
[¶ 51] As discussed with respect to her disparate treatment claim, plaintiff presents no evidence that any of the alleged harassment had anything to do with her race or gender. To defeat a summary judgment motion, plaintiff must substantiate her allegations with sufficient probative evidence that would allow a jury to find in her favor based on more than just speculation.Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th Cir. 1994). Plaintiff has made it very clear that her relationship with Sorenson was not satisfactory. However, she is not able to demonstrate that her treatment was a consequence of her race or gender. As previously noted, plaintiff stated in her deposition that she did not know why Sorenson acted in the manner he did. She is not entitled to a better version of the facts than given in her own sworn testimony.
[¶ 52] Moreover, an examination of the record reveals that the actions of Sorenson were not "sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment." The four incidents described above, combined with the other allegations of her complaint, do not suggest an environment that is permeated with intimidation, ridicule, and insult. Rather, the record reveals a work environment where there were occasional disagreements and inappropriate comments.
C. Continuing Violation Doctrine
[¶ 53] Defendant contends that some of the acts alleged by plaintiff are untimely and cannot be considered by the court for purposes of plaintiff's claims. Plaintiff made initial contact with the EEOC counselor on November 3, 1998. The federal regulations require a federal employee who believes that she has been discriminated against to initiate contact with an EEOC counselor "within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action." C.F.R. § 1614.105(a)(1).
[¶ 54] "[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Nat'l R.R. Passenger Corp. v. Morgan, 526 U.S. 101, 122 S. Ct. 2061 (2002). However, "[a] charge alleging a hostile work environment claim . . . will be not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period." Id. at 2077. Plaintiff has alleged the "continuing violation" doctrine in order to make all of her counts timely. As the Eighth Circuit has noted, following theMorgan decision:
The question for liability as well as damages after Morgan is whether the acts complained of are part of the same unlawful employment practice. If so, then all of the acts may be considered so long as one of the acts falls within the limitations period. If not, then only the acts which fall in the limitations period may be considered.
The Supreme Court explained the difference between discrete discriminatory acts and a series of separate acts that together constitute an "unlawful employment practice," 42 U.S.C. § 2000e-5(e)(1). [Morgan] at 2069-76. A discrete act "`occurred' on the day it `happened'" and constitutes its own unlawful employment practice. Id. at 270. Examples of discrete acts include "termination, failure to promote, denial of transfer, or refusal to hire." Id. at 2073. "Discrete acts that fall within the statutory time period do not make timely acts that fall outside the time period." Id. at 2071.Mems v. City of St. Paul, Dep't of Fire Safety Servs., 327 F.3d 771, 784-85 (8th Cir. 2003).
[¶ 55] The court agrees that a number of the items alleged in plaintiff's complaint are likely "discrete" acts. Nonetheless, because the plaintiff alleged a hostile environment, the court considered all of the items listed in the complaint. As stated above, the court finds that there is no genuine issue as to any material fact and summary judgment is appropriate.
III. RETALIATION
[¶ 56] Title VII prohibits an employer from discriminating against an employee "because [she] has opposed any practice made an unlawful employment practice by this subchapter, or because [she] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). To establish a claim of retaliation, plaintiff must show that (1) she filed a charge of harassment or engaged in another protected activity; (2) the employer subsequently took an adverse action against her; and (3) the adverse action was causally linked to her protected activity.Jacob-Mua, 289 F.3d at 521.
[¶ 57] Defendant claims that plaintiff failed to exhaust her administrative remedies as to the claim for retaliation and points to the fact that she failed to check the box marked "retaliation" in the charge of discrimination form. To exhaust administrative remedies an individual must: (1) timely file a charge of discrimination with the EEOC setting forth the facts and nature of the charge, and (2) receive notice of the right to sue. 42 U.S.C. § 2000e-5(b), (c), (e). "A plaintiff will be deemed to have exhausted administrative remedies as to allegations contained in a judicial complaint that are like or reasonably related to the substance of charges timely brought before the EEOC." Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir. 1994). However, it is well-established that retaliation claims are not reasonably related to underlying discrimination claims. See, e.g., id. at 223 (plaintiff's "claims of race discrimination are separate and distinct from her claims of retaliation"). Thus, plaintiff's retaliation claim will not be considered unless it grew out of the discrimination charge she filed with the EEOC. See e.g. Wentz v. Maryland Cas. Co., 869 F.2d 1153, 1154 (8th Cir. 1989) (district court may hear retaliation claim when plaintiff is retaliated against for filing the EEOC charge that alleged only discrimination).
[¶ 58] There is authority in the Eighth Circuit that suggests that plaintiff's retaliation claim must be rejected. InWilliams, an African-American employee brought an action against the employer under Title VII, alleging racial discrimination and retaliation. The plaintiff had filed an EEOC charge in 1987, alleging racial discrimination in the denial of a pay raise and promotion in violation of Title VII. When she was denied a merit raise and promotion in 1990, the plaintiff filed a second EEOC charge, alleging that she was denied the promotion in retaliation for filing the 1987 EEOC charge. The defendant argued that the plaintiff had failed to exhaust administrative remedies as to her discrimination charge, since her EEOC charge only complained of retaliation. In the narrative section of the EEOC charge, the plaintiff specifically described how she was being retaliated against as the result of her 1987 EEOC filing. On the complaint form, the plaintiff marked the box entitled "retaliation" but left the box marked "race" empty. The court made the following observations:
"Allowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumscribe the EEOC's investigatory and conciliatory role, as well as deprive the charged party of notice of the charge, as surely as would an initial failure to file a timely EEOC charge." Babrocky v. Jewel Food Co. Retail Meatcutters, 773 F.2d 857, 863 (7th Cir. 1985). In the present case, Williams' claims of race discrimination are separate and distinct from her claims of retaliation. Not only did Williams fail to check the box for race discrimination, her 1990 EEOC charge and supporting affidavit specifically and unambiguously alleged that [defendant] retaliated against her because she had filed a charge with the EEOC in January 1987. The 1990 EEOC charge does not even hint of a claim of race discrimination. This amounts to more than a mere technicality and is the product of an unconstrained reading of Williams' charge.Id. at 223.
[¶ 59] Similarly, plaintiff failed to check the "reprisal" box in the EEOC complaint that she completed. The basis for plaintiff's discrimination complaint was gender not retaliation. In plain language, the narrative explanation of the allegation of discrimination in plaintiff's case states: "Ms. Karen Boyle states she has been discriminated against because she is a female." Thus, the court is left only with the decision of whether plaintiff's retaliation claim is reasonably related to, or grows out of, her discrimination claim.
[¶ 60] In another Eighth Circuit case, Russell v. TG Missouri Corporation, 340 F.3d 735 (8th Cir. 2003), the court considered an employee's claim that the employer's assignment of overtime to her was in retaliation for making requests that the employer accommodate her bipolar disorder. The court determined that her retaliation claim was not reasonably related to the disability discrimination charge she filed with the EEOC for exhaustion of remedy purposes:
Russell has not alleged that the retaliation resulted from her filing the administrative charge. The alleged retaliation occurred well before the administrative charge was filed. We therefore further conclude that Russell's retaliation claim does not grow out of the substance of her allegations in the administrative charge.Id. at 748.
[¶ 61] Likewise, in Wallin v. Minn. Dep't of Corrections, 153 F.3d 681, 688 (8th Cir. 1998), cert. denied, 526 U.S. 1004 (1999), the plaintiff argued that his discharge was in retaliation for making internal discrimination complaints but failed to allege retaliation in his EEOC complaint. The court determined that, because the alleged retaliation "was not the result of [the plaintiff's] filing of the EEOC charge" and "occurred at the same time as the alleged discrimination, long before he filed a charge of discrimination with the EEOC," the retaliation claim did not grow out of the substance of the allegations in the administrative charge.
[¶ 62] The retaliation claim now advanced by plaintiff is premised on the treatment she received at IHS after having filed grievances during the same time frame as the alleged discriminatory acts. Plaintiff is not claiming that Sorenson retaliated against her based on her filing of the EEOC complaint. Plaintiff's claim in the instant case did not grow out of the discrimination charge she filed with the EEOC and the court is not going to consider it. The defendant is entitled to judgment as a matter of law as to plaintiff's retaliation claim.
IV. CONCLUSION
[¶ 63] This is the rare case in which a summary judgment should be entered in an employment discrimination case. Plaintiff has presented no evidence to demonstrate that any of the alleged discriminatory acts were a consequence of her race or gender. Indeed, throughout plaintiff's own sworn testimony in her deposition, she maintained that she did not know why Sorenson treated her as he did. Plaintiff's hostile environment claim must be rejected for the same reason. It also must be rejected because she has not presented evidence of an environment that is sufficiently severe or pervasive as to alter the conditions of her employment. Finally, plaintiff has failed to exhaust administrative remedies as to her retaliation claim. She failed to present this claim in her EEOC charge and the claimed retaliation did not grow out of her filing of the EEOC charge.
[¶ 64] There is no genuine issue as to any material fact and the defendant is entitled to judgment as a matter of law.
ORDER
[¶ 65] Now, therefore,
[¶ 66] IT IS ORDERED, as follows:
1) The motion (Doc. 29) for summary judgment as to defendant Aberdeen Area Office, Indian Health Services, U.S. Department of Health and Human Services, is granted, as the only proper defendant for a Title VII cause of action is the head of the agency.
2) The motion (Doc. 29) of the defendant, Tommy Thompson, for summary judgment is granted, there being no genuine issue of any material fact as to liability as to any of plaintiff's claims.
3) The pretrial conference scheduled for Friday, September 24, 2004 at 1:00 o'clock P.M. is cancelled.
[¶ 67] Dated this 18th day of August, 2004.