Watson v. Shulkin

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

MONICA WATSON, )

)

Plaintiff, )

)

v. ) Case No. 4:17-00192-CV-RK

)

ROBERT WILKIE, SECRETARY, )

DEPARTMENT OF VETERAN )

AFFAIRS1; )

)

Defendant. )

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Before the Court is Defendant Robert Wilkie, Secretary, Department of Veterans Affairs

(“Defendant”)’s Motion for Summary Judgment (“the Motion”). (Doc. 49.) The Motion is fully

briefed. (Docs. 51, 55.) After careful consideration and for the reasons below, the Motion is

GRANTED.

Background

Plaintiff Monica Watson (“Plaintiff”) brings the following allegations in her Complaint.

(Doc. 35.) Plaintiff is an African American female that was employed with the Department of

Veterans Affairs from September 2006 until her resignation in May 2016. In 2014, Plaintiff was

a GS-0675-9 level employee with the position title of Medical Records Technician. She was

employed at the Kansas City VA Medical Center.

Plaintiff alleges claims against Defendant pursuant to Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 20003 et seq. Plaintiff alleges she was racially discriminated against by her

supervisor Laurie Schwab (“Schwab”), and this discrimination resulted in Plaintiff’s constructive

discharge. Plaintiff alleges the following causes of action: Count I: Race Discrimination; Count

II: Hostile Work Environment; Count III: Retaliation; and Count IV: Constructive Discharge.

Plaintiff seeks the following relief: monetary damages including lost wages, lost earning capacity,

1 When this case was filed, David Shulkin was the Secretary of Veteran Affairs, and the caption so

reflected. On July 30, 2018, Robert Wilkie was sworn in as the new Secretary of Veteran Affairs.

Accordingly, the caption has been modified from its original version to reflect this transition. U.S.

Department of Veterans Affairs, Office of Public and Intergovernmental Affairs,

https://www.va.gov/opa/bios/secva.asp (last visited July 12, 2019).

emotional distress, back pay, compensatory damages, and special damages; equitable or injunctive

relief; punitive and/or statutory damages; attorney’s fees; and costs. Plaintiff alleges the following

events in support of all claims.

- Boarding Issue2

The parties agree that Plaintiff’s position title was officially changed on June 28, 2015, to

Medical Records Technician (Coder) – CDIS. The parties agree the title change was in accordance

with new “hybrid Title 38” position titles. The parties agree that Plaintiff’s salary did not change

with the position change.

Plaintiff argues that the failure to provide Plaintiff the opportunity to board into her new

position prevented her from being able to meet the qualifications at the new position. Plaintiff

testified that she and other African American employees were only allowed to engage in coding

work. (Doc. 51-7, Plaintiff’s Affid.) Plaintiff testified that as a result of the failure to board,

Plaintiff and her similarly situated colleagues were subjected to increased workloads and passed

over for advancement opportunities. (Doc. 51-7, Plaintiff’s Affid.)

Schwab testified that Plaintiff did not require boarding because Plaintiff received boarding

for a promotion to the Coder, GS-0675-9 position prior to 2010; therefore, she did not require

additional boarding for the new position. (Doc. 49-6, Schwab Affid.) Utley testified that the

increase in Plaintiff’s workload was the result of a staffing shortage, not the result of race

discrimination. (Doc. 49-7, Utley Affid.)

- October 19, 2015 Meeting

The parties agree that on October 19, 2015, Plaintiff’s supervisor, Stan Utley, stated that if

the staff in Plaintiff’s department did not improve productivity, the senior management would

suspend the program group Plaintiff was assigned. The parties agree the program was eventually

disbanded. The parties agree the shutdown did not affect Plaintiff’s salary, grade, or job benefits.

- October 21, 2015 Performance Rating

The parties agree that Plaintiff received an annual performance rating of “Fully Successful”

on her annual performance appraisal completed by Schwab. Plaintiff testified that she was unable

to surpass the performance standards because her work load was too high and did not receive

proper boarding for the work. (Doc. 51-7, Plaintiff’s Affid.) Plaintiff also testified that Schwab

2 Plaintiff describes the “boarding” process in her deposition as the steps, such as trainings, that an

employee must take to be considered for a new position within the company. (Doc. 49-14.)

manipulated the policies and procedures to deny Plaintiff access to career advancement. Schwab

testified that Plaintiff received the rating of “Fully Successful” because Plaintiff merely met her

performance standards. (Doc. 49-6, Schwab Affid.) Utley testified that the increased workload

was not the result of discrimination, and instead, was the result of a staffing shortage.

(Doc. 49-7, Utley Affid.) Schwab also testified that Plaintiff did not require boarding.

(Doc. 49-6, Schwab Affid.)

- Job Announcements

The parties agree that Schwab forwarded job announcements to Plaintiff and other

employees. Plaintiff testified that these job announcements were directed only to her, and the

announcements were nonverbal gestures that Schwab was encouraging Plaintiff to find a new job.

(Doc. 51-7, Plaintiff’s Affid.) Schwab testified that job announcements were sent to multiple

coding employees. (Doc. 49-6, Schwab Affid.) Utley testified that the letters were sent because

Plaintiff said she was actively seeking a different job. (Docs. 49-7, Utley Affid.)

- Criticism of Plaintiff to Management

Plaintiff argues that Schwab spoke poorly of her to several senior level managers and a

union representative. (Doc. 51-7, Plaintiff’s Affid.) Specifically, Plaintiff alleges Schwab stated

that Plaintiff would not be good at presenting to physicians. (Id.) Plaintiff argues that these

statements were in retaliation for the EEO Complaint because Schwab had rated Plaintiff’s

presentation skills highly before the EEO Complaint was filed.

Defendant argues that the alleged statements could not have been made in retaliation

because Plaintiff alleges the discussion occurred in February 2016, but Plaintiff did not seek EEO

counseling until March 2016 and filed the EEO Complaint in June 2016.

- Counseling Memorandum

The parties agree that Plaintiff received a written counseling memorandum from Schwab

on March 18, 2016. The parties also agree the written counseling states that Plaintiff failed to

follow instructions regarding deadlines and states that Plaintiff’s productivity is at eighteen percent

for the period of February 28, 2016, through March 4, 2016.

Plaintiff testified that her productivity was low during that period because she was out on

sick leave during that time. (Doc. 51-7, Plaintiff’s Depo.) Plaintiff also testified that she and

another African American colleague were given written counseling memorandums, but a white

coworker who also missed deadlines was not. (Doc. 51-8, McKenzie Memo. to Inkley.) Plaintiff

testified that the receipt of a written counseling memorandum puts Plaintiff in a position vulnerable

to termination. (Doc. 51-7, Plaintiff’s Affid.)

Defendant states that Plaintiff’s written counseling was not a disciplinary action, and

instead, Schwab explained that it served only as an opportunity for improvement regarding

repeated failure to follow instructions. (Doc. 49-6, Schwab Affid.) Defendant also states Schwab

did not give a written counseling to a white coworker who was going to receive the same written

counseling because the white coworker turned in the assignment five minutes before the deadline,

where Plaintiff’s assignment was late. (Id.)

- Denial of Special Advancement Award

The parties agree that Plaintiff did not receive a special advancement award. Plaintiff

argues that she qualified for the Special Advancement Award but was denied the award solely as

a result of Schwab’s performance review of Plaintiff. Defendant states that Plaintiff was denied

the award because she did not show excellence in performance and there was no evidence of any

“extra special” achievement. (Doc. 49-22.)

- Resignation

The parties agree that Plaintiff submitted her letter of resignation on May 16, 2016. The

parties agree that Plaintiff’s letter of resignation stated,

This is an official letter of resignation of my current position at the KCVA Medical

Center, I will be moving forward in my career path and have accepted a professional

position that will allow me to fully utilize my plethora of skills and knowledge and

is commensurate with my HIM Bachelor and RIHA credential. My last day of

employment with the Kansas City VA Medical Center will be May 27, 2016.

(Doc. 51-4, pgs. 16-17.)

Defendant states that Plaintiff did not indicate in any communication to her supervisors,

human resources staff, or in her letter of resignation that her resignation was due to a racially

hostile work environment. Schwab testified that the reason Plaintiff left her position was that “she

got another job, a better job.” (Doc. 49-6, Schwab Affid.) Plaintiff testified that she did not

express her concerns regarding discrimination in her resignation letter or with staff because she

believed it would be futile. (Doc. 51-7, Plaintiff’s Affid.)

- Training

Plaintiff argues the training she was directed to complete was mediocre; therefore, she was

denied appropriate training. Plaintiff also alleges the training sessions presided over by Schwab

discouraged questions and humiliated employees. Defendant states that Plaintiff was provided

with proper training materials and the opportunity to attend satisfactory weekly training meetings.

(Doc. 51-9.)

- Derogatory Language

Plaintiff alleges that she was subjected to racial slurs and racially derogatory language by

Schwab and others.

Legal Standard

Under Fed. R. Civ. P. 56, “[t]he court shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” “As to materiality, the substantive law will identify which facts are material.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Only disputes over facts that might

affect the outcome of the suit under the governing law will properly preclude the entry of summary

judgment.” Id. “[A] dispute about a material fact is ‘genuine,’ . . . if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Id. “In considering a motion for

summary judgment, the court does not weigh the evidence, make credibility determinations, or

attempt to discern the truth of any factual issue.” Morris v. City of Chillicothe, 512 F.3d 1013,

1018 (8th Cir. 2008) (citation omitted).

“Claims of discrimination under Title VII . . . are analyzed under the burden-shifting

framework enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803 (1973).” Roark

v. City of Hazen, 189 F.3d 758, 761 (8th Cir. 1999). First, the plaintiff must establish a prima facie

case of discrimination. Id. If the plaintiff establishes a prima facie case of discrimination, the

burden shifts to the employer “to articulate some legitimate, nondiscriminatory reason” for the

employee’s termination. Id. (quoting McDonell Douglas, 411 U.S. at 802). If the employer

satisfies its burden, the employee must show the reason the employer asserts is pretextual. Id. “At

all times, the burden of persuasion remains on the employee.” Id.

Discussion

Defendant argues summary judgment is warranted as Plaintiff has not established a prima

facie case for the following reasons: Plaintiff did not exhaust her administrative remedies before

filing suit; Plaintiff did not experience an adverse employment action; Plaintiff was not

constructively discharged; and even if Plaintiff establishes a prima facie case for all claims,

Plaintiff’s claims do not survive summary judgment because all decisions made by Defendant were

made for legitimate, nondiscriminatory reasons.

A. Exhaustion of Administrative Remedies

Defendant argues that Plaintiff has not exhausted her administrative remedies for Plaintiff’s

hostile work environment and retaliation claims. Plaintiff argues her hostile work environment

and retaliation claims are sufficiently related to her discrimination claim in the EEOC Complaint

that they can be considered exhausted.

Title VII procedure requires a complaining employee to comply with administrative

procedures before filing suit. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974). “To

properly exhaust, a complainant must initiate the EEO pre-compliant process ‘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.’” Patrick v. Henderson, 255 F.3d 914, 915 (8th Cir. 2001)

(quoting 29 C.F.R. § 1614.105(a)(1)). “If the matter is not informally resolved, the EEO counselor

notifies the complainant of her right to file a formal administrative complaint.” Id. See

§ 1614.105(d). “Only the claims raised in this pre-complaint counseling (or issues or claims like

or related to issues or claims raised in the pre-complaint counseling) may be alleged in the

subsequent complaint filed with the agency.” Id. See § 1614.105(b)(1). “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 with proper notice

of the charge, as surely as would an initial failure to file a timely EEOC charge.” Watson v.

O’Neill, 365 F.3d 609, 614 (8th Cir. 2004). EEOC regulations require an agency to dismiss a

complaint if it is filed after applicable deadlines. 29 C.F.R. § 1614.107.

1. Count II: Hostile Work Environment

Plaintiff first consulted with an EEO counselor on March 21, 2016, because she had

received a counseling memorandum from Schwab on March 18, 2016. Defendant argues the only

discrete claims accepted at the administrative stage were claims for constructive discharge and the

written counseling memorandum. Therefore, Defendant argues that Plaintiff’s claim for hostile

work environment has not been exhausted because it was not raised until Plaintiff filed her formal

EEO Complaint in June 2016. Plaintiff argues the EEO Complaint sufficiently raises a hostile

work environment claim.

The Court finds that Plaintiff has failed to exhaust her administrative remedies concerning

her claim for hostile work environment. Here, Plaintiff did not allege that she was subject to a

hostile work environment in the EEO counseling session, and her hostile work environment claim

is not related to Plaintiff’s grievance with the written counseling memorandum and her claim of

race discrimination. See 29 U.S.C. § 1614.07(a)(2) (“a matter that has not been brought to the

attention of a Counselor and is not like or related to a matter that has been brought to the attention

of a Counselor” shall result in dismissal of the entire complaint). See also Williams v. Little Rock

Mun. Water Works, 21 F.3d 218, 222 (8th Cir. 1994) (“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.”). The EEOC

counseling session only discussed the written counseling Plaintiff received on March 18, 2016.

There were no references to a hostile work environment. See (Doc. 49-18.) Plaintiff was notified

by the EEO counselor in the EEO counseling session that if a new claim was brought at a later

time that was not discussed in the session, the new claim would be dismissed, unless it was related

to a claim that was discussed in the session.3 Therefore, Defendant has established that it is entitled

to summary judgment for the hostile work environment claim pursuant to the EEO’s exhaustion

requirement.

2. Count III: Retaliation

Plaintiff argues that her retaliation claim is substantially similar to her race discrimination

claim alleged in her EEO Complaint; therefore, Plaintiff has exhausted her administrative remedies

for her retaliation claim. However, Plaintiff did not raise her retaliation claim in the EEO

counseling session. Plaintiff sought to add this claim on November 30, 2016, over forty-five (45)

days after the initial counseling session on March 21, 2016. Therefore, this claim has not been

exhausted pursuant to 29 C.F.R. § 1614.105(a)(1).

Further, Plaintiff cannot claim her retaliation claim is reasonably related to the constructive

discharge or discrimination claim that were properly exhausted to bypass 29 C.F.R.

§ 1614.105(a)(1)’s forty-five (45) day limit. See Williams, 21 F.3d at 222. The Eighth Circuit has

“considerably narrowed our view of what is like or reasonably related to the originally filed EEOC

allegations . . . [and] we have subsequently recognized that ‘retaliation claims are not reasonably

related to underlying discrimination suits.’” Wedow v. City of Kan. City, 442 F.3d 661, 672-73

3 The language in the EEO counseling report is as follows. “The Aggrieved was informed that the

claim listed above was the only claim addressed during the informal EEO counseling. If a formal Complaint

of Discrimination is filed, a claim that has not been brought to the attention of an EEO Counselor and is

not like or related to a claim that has been brought to the attention of an EEO Counselor is subject to

dismissal in accordance with CFR 1614.107(a)(2).” (Doc. 49-18, at 2-3.)

(8th Cir. 2006) (internal quotation and internal citation omitted). See also Richter v. Adv. Auto

Parts, Inc., 686 F.3d 847, 852 (8th Cir. 2012) (a retaliation claim is not reasonably related to an

underlying discrimination claim; therefore, a retaliation claim must independently exhaust its

administrative remedies). Here, Plaintiff did not raise her retaliation claim within forty-five (45)

days of the initial counseling session, and Plaintiff’s EEO Complaint concerning discrimination is

not reasonably related to Plaintiff’s retaliation claim sufficient to bypass § 1614.105(a)(1)’s time

limit. Therefore, Defendant has established that it is entitled to summary judgment on Plaintiff’s

retaliation claim pursuant to the EEO’s exhaustion requirement.

B. Prima Facie Case

a. Count I: Race Discrimination

To establish a prima facie case of race discrimination, Plaintiff must show: “(1) [s]he was

a member of a protected group; (2) [s]he was qualified to perform the job; (3) [s]he suffered an

adverse employment action; and (4) circumstances permit an inference of discrimination.” Xuan

Huynh v. U.S. Dep’t of Transp., 794 F.3d 952, 958 (8th Cir. 2015).

At issue between the parties is whether Plaintiff experienced an adverse employment

action. The Court finds that Plaintiff’s allegations do not reach the adverse employment threshold

because they do not result in a material change in employment such as change in salary, benefits,

or responsibilities. Cruzan v. Special Sch. Dist., No. 1, 294 F.3d 981, 984 (8th Cir. 2002) (“[m]ere

inconvenience without any decrease in title, salary, or benefits is insufficient to show an adverse

employment action”). Plaintiff was not suspended, terminated, or disciplined, and her yearly

evaluation for 2016 was positive. “Not everything that makes an employee unhappy is an

actionable adverse employment action . . . an adverse employment action is exhibited by a material

employment disadvantage, such as a change in salary, benefits, or responsibilities.” LaCroix v.

Sears, Roebuck, and Co., 240 F.3d 688, 691 (8th Cir. 2001) (citations omitted). Minor changes in

working conditions that inconvenience the employee or alter the employee’s work responsibilities

do not rise to the level of an adverse employment action. Sallis v. Univ. of Minn., 408 F.3d 470,

476 (8th Cir. 2005). Further, “[c]onduct that is merely rude, abrasive, unkind, or insensitive does

not come within the scope of the law.” Shaver v. Indep. Stave Co., 350 F.3d 716, 721 (8th Cir.

2003). The failure to provide training and orientation as well as the inclusion of negative personnel

reports and reprimands in a personnel file are not adverse employment actions. Gilbert v. Des

Moines Area Cnty. Coll., 495 F.3d 906, 917-18 (8th Cir. 2007). Similarly, a negative performance

review is not an adverse action if the employer does not use that review to alter the conditions of

employment to the employee’s detriment. Baucom v. Holiday Cos., 428 F.3d 764, 768

(8th Cir. 2005).

Plaintiff also argues she was passed over for a promotion as a result of her race. Failure to

receive a promotion is an adverse employment action. Allen v. Michigan Dep’t of Corrections,

165 F.3d 405, 410 (6th Cir. 1999). To succeed on a failure-to-promote race discrimination claim,

Plaintiff must show: “(1) she is a member of a protected group; (2) she was qualified and applied

for a promotion to an available position; (3) she was rejected; and (4) similarly situated employees,

not part of the protected group, were promoted instead.” Jackson v. UPS, 643 F.3d 1081, 1086

(8th Cir. 2011) (quoting Shannon v. Ford Motor Co., 72 F.3d 678, 682 (8th Cir. 1996)). Plaintiff

has made a prima facie case that she is a member of a protected group as a woman but does not

make a prima facie case for the remaining elements. Burns v. McGregor Elec. Indus., Inc., 955

F.2d 559, 564 (8th Cir. 1992). Plaintiff argues that she was “passed over for advancement

opportunities” but does not provide any evidence that she submitted an application for a position,

was rejected for that position, and a similarly situated candidate outside of the protected group

received that position. Therefore, Plaintiff has not submitted a prima facie failure-to-promote race

discrimination claim.

b. Count II: Racially Hostile Work Environment

As found above, Plaintiff’s hostile work environment claim fails because Plaintiff failed to

exhaust her administrative remedies. Alternatively, Plaintiff has not met her burden to establish a

prima face case of hostile work environment.

To succeed on a claim for racially hostile work environment, a plaintiff must show: “(1)

that [she] is a member of a protected group; (2) that [she] was subjected to unwelcome harassment;

(3) that the harassment was based on race; and (4) that the harassment affected a term, condition,

or privilege of employment.” Anderson v. Family Dollar Stores of Arkansas, 579 F.3d 858, 862

(8th Cir. 2009) (citation omitted). “Hostile work environment claims are limited in nature,

requiring that the plaintiff’s workplace is permeated with discriminatory intimidate, ridicule, and

insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment

and create an abusive working environment.” Anda v. Wickes Furniture Co., 517 F.3d 526, 531

(8th Cir. 2008). Conduct must be so severe or pervasive that the conduct creates a hostile work

environment viewed from an objective perspective. Harris v. Forklift Systems, 510 U.S. 17, 21

(1993). “Allegations of a few isolated or sporadic incidents will not suffice; rather, the plaintiff

must demonstrate the alleged harassment was ‘so intimidating, offensive, or hostile that it poisoned

the work environment.’” Nitsche v. CEO of Osage Valley Elec. Coop., 446 F.3d 841, 846 (8th Cir.

2006) (quoting Tuggle v. Mangan, 348 F.3d 714, 720 (8th Cir. 2003)). Racial slurs, without more,

“do not render a work environment hostile as a matter of law.” Singletary v. Missouri Dep’t of

Corr., 423 F.3d 886, 893 (8th Cir. 2005). In Singletary, the Eighth Circuit elaborated as follows:

Racial epithets are morally repulsive. But our cases require that a plaintiff show

more than a few occurrences over a course of years. To be actionable, such conduct

must be shown to occur with such frequency that the very conditions of

employment are altered and be viewed by a reasonable person as hostile.

Id. The Court must look to the totality of the circumstances to determine whether a work

environment is hostile. LeGrand v. Area Res. for Cmty. & Human Servs., 394 F.3d 1098, 1102

(8th Cir. 2005). These factors include, “the frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.” Id. (quoting Harris, 510 U.S. at

23).

Plaintiff is a member of a protected group because she is African American and female.

Burns, 955 F.2d at 564. Plaintiff argues she and other African American colleagues were referred

to as “black bitches” without specifying the frequency of such comments. Despite her arguments,

Plaintiff has not shown that her complaints regarding the type of work assigned; workload amount,

evaluation of work performed, quality of training provided, discussion of Plaintiff’s performance

with management, racial slurs, or the use of a counseling memorandum are acts of harassment.

Next, even if the Court were to determine that Plaintiff was harassed, Plaintiff has not

shown that she was harassed based on her race. See Nitsche, 446 F.3d at 845-46 (“complaints

attacking the ordinary tribulation of the workplace, such as the sporadic use of abusive language,

gender-related jokes, and occasional teasing obtain no remedy”) (internal quotations and citation

omitted). This element is discussed more fully below in Section C.

Concerning the last element, even if the Court were to find that Plaintiff was harassed based

on her race, Plaintiff’s racially hostile work environment claim fails because the harassment did

not affect a term, condition, or privilege of Plaintiff’s employment. While the Court understands

that Plaintiff likely faced a frustrating work situation, Plaintiff has not shown the harassment was

“so severe or pervasive as to have affected a term, condition, or privilege of employment.” Bradley

v. Widnall, 232 F.3d 626, 631-32 (8th Cir. 2000). “More than a few isolated incidents are required,

and the alleged harassment must be so intimidating, offensive, or hostile that it poisoned the work

environment.” Tuggle v. Mangan, 348 F.3d 714, 720 (8th Cir. 2003) (internal quotation marks and

citation omitted). See Kelleher v. Wal-Mart Stores, Inc., 817 F.3d 624, 633 (8th Cir. 2016) (“[a]

poor performance rating does not in itself constitute an adverse employment action because it has

no tangible effect upon the recipient’s employment”) (citation omitted); Sutherland v. Mo. Dept.

of Corr., 580 F.3d 748, 752 (8th Cir. 2009) (the court held the reclassification of performance from

“highly successful” to “successful” not accompanied by reduction in pay, salary, benefits, or

prestige does not affect a term, condition, or privilege of employment); Recio v. Creighton Univ.,

521 F.3d 934, 939-40 (8th Cir. 2008) (the court held that changes in work schedule, denial of

opportunity to teach certain classes, maintenance of cold temperature in office, and faculty

shunning did not constitute a detriment to a term, condition, or privilege of employment);

Clegg v. Ark. Dept. of Corr., 496 F.3d 922, 929 (8th Cir. 2007) (negative reports and reprimands

to personnel file were insufficient to constitute a change in a term, condition, or privilege of

employment).

Accordingly, Plaintiff has not established a prima facie case of racially hostile work

environment because: (1) Plaintiff did not exhaust her administrative remedies, and (2) Plaintiff

did not establish a prima facie case for the second, third, and fourth elements for a racially hostile

work environment claim.

c. Count III: Retaliation

Plaintiff’s alleges that the adverse actions taken against her were motivated by Plaintiff’s

filing of the EEO Complaint. However, Plaintiff’s retaliation claim fails because Plaintiff has not

presented a prima facie case of retaliation.

“To establish a prima face case of retaliation, a plaintiff must show that (1) [she] engaged

in statutorily protected activity; (2) an adverse employment action was taken against him . . . ; and

(3) a causal connection exists between the two events.” Young v. Builders Steel Co., 754 F.3d 573,

579 (8th Cir. 2014) (internal quotations and citation omitted). Plaintiff has established she engaged

in statutorily protected activity because she filed administrative charges with the EEOC against

Defendant. See id. However, Plaintiff has failed to establish that she experienced an adverse

employment action as discussed more fully above in Section C(a). See Powell v. YellowBook USA,

Inc., 445 F.3d 1074, 1079 (8th Cir. 2006) (“formal criticisms or reprimands that do not lead to a

change in compensation, responsibilities, or other benefits do not constitute an adverse

employment action under Title VII”). Accordingly, summary judgment for Defendant is

appropriate regarding Plaintiff’s retaliation claim.

d. Count IV: Constructive Discharge

“To prove a case of constructive discharge, a plaintiff must show (1) a reasonable person

in [her] situation would find the working conditions intolerable and (2) the employer intended to

force [her] to quit.” Carpenter v. Con-Way Cent. Express, Inc., 481 F.3d 611, 616 (8th Cir. 2007).

“An employee must, however, grant [her] employer a reasonable opportunity to correct the

intolerable condition before [she] terminates [her] employment.” Turner v. Honeywell Fed. Mfg.

& Techs., LLC, 336 F.3d 716, 724 (8th Cir. 2003) (internal quotation marks and citation omitted).

“To prove a constructive discharge, an employee must show that the employer deliberately

created intolerable working conditions with the intention of forcing her to quit.” Blake v. MJ

Optical Inc., 870 F.3d 820, 826 (8th Cir. 2017) (citation omitted). “This burden is substantial.”

O’Brien v. Dep’t of Agriculture, 532 F.3d 805, 810 (8th Cir. 2008) (citation omitted). “The bar is

quite high in [constructive discharge] cases.” Id. at 810-11 (citation omitted). See also Poland v.

Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007) (a workplace is intolerable in the context of

constructive discharge cases where the conditions are “sufficiently extraordinary and egregious”).

“The plaintiff can satisfy the intent requirement by demonstrating that he quit as a reasonably

foreseeable consequence of the employer’s discriminatory actions.” Howard v. Burns Bros., 149

F.3d 835, 841 (8th Cir. 1998). “A constructive discharge arises only when a reasonable person

would find the conditions of employment intolerable.” Id. (citation omitted). “If an employee

quits because she reasonably believes there is no chance for fair treatment, there has been a

constructive discharge.” Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 574 (8th Cir. 1997).

However, an employee must show that he or she gave the employer a reasonable chance to work

out the problem to succeed on a constructive discharge claim. Coffman v. Tracker Marine, L.P.,

141 F.3d 1241, 1247 (8th Cir. 1998).

In viewing the facts and evidence in the record most favorable to Plaintiff, Plaintiff has not

shown that her working conditions were intolerable. The counseling memorandum, performance

appraisal, occasional criticism, occasional alleged derogatory language, failure to receive an

award, and lack of training are not sufficiently extraordinary or egregious that a reasonable person

would find them intolerable. See Hanenburg v. Principal Mutual Life Ins. Co., 118 F.3d 570, 575

(8th Cir. 1997) (while an employee provided evidence that “her supervisors scrutinized her

behavior in the workplace more closely than it did other employees,” the court held this was

insufficient to create an intolerable working condition). Racial slurs, without more, “do not render

a work environment hostile as a matter of law.” Singletary, 423 F.3d at 893. Because the Court

finds that Plaintiff has not established a prima facie case that her working conditions were

intolerable, Plaintiff’s constructive discharge claim fails. The Court need not address the

remaining elements for the constructive discharge claim.

Independently, Plaintiff’s constructive discharge claim fails because Plaintiff’s hostile

work environment claim failed. See Landgraf v. USI Film Prods., 968 F.2d 427, 430

(5th Cir. 1992), affirmed, 511 U.S. 244 (1994) (“[t]o prove constructive discharge, the plaintiff

must demonstrate a greater severity or pervasiveness of harassment than the minimum required to

prove a hostile working environment”). Here, Plaintiff’s constructive discharge claim relies on

the same facts, evidence, and allegations as Plaintiff’s hostile work environment claim. See Wilkie

v. HHS, 638 F.3d 944, 954 (8th Cir. 2011) (the court held the plaintiff’s constructive discharge

claim fails because it was based on the same allegations for the plaintiff’s hostile work

environment claim that also failed); O’Brien, 532 F.3d at 811 (a plaintiff has a higher evidentiary

burden with a constructive discharge claim than required with an adverse employment action).

Therefore, Plaintiff’s constructive discharge claims fails.

C. McDonnell Douglas Burden Shifting Framework

Last, Defendant argues summary judgment is appropriate even if Plaintiff has established

a prima facie case for each claim because the decisions and actions by Plaintiff’s supervisors were

made for legitimate, nondiscriminatory purposes. The McDonnell Douglas burden shifting

framework requires Plaintiff to first establish a prima facie case, and if Plaintiff establishes a prima

facie case, Defendant must show the actions were made for nondiscriminatory purposes. 411 U.S.

at 803. If Defendant articulated legitimate, nondiscriminatory reasons for the actions and decisions

made, Plaintiff must show the explanations were pretextual. Id. See also Lors v. Dean, 595 F.3d

831, 834 (8th Cir. 2010)

When a defendant articulates a legitimate, nondiscriminatory reason for

employment decisions, a plaintiff “must present sufficient evidence to show both

that the employer’s articulated reason for the adverse employment action was false

. . . the plaintiff must do more than simply create a factual dispute as to the issue of

pretext; he must offer sufficient evidence for a reasonable trier of fact to infer

discrimination.

Id. (citation omitted).

While the Court finds that Plaintiff has not established a prima facie case for each claim,

even if she had, Defendant provides legitimate, nondiscriminatory reasons for each incident. For

instance, Defendant rebuts that, concerning Plaintiff’s performance rating, Schwab testified that

Plaintiff was given this rating because she merely met her performance standards. Schwab testified

in her deposition that Plaintiff received a counseling memorandum because Plaintiff’s performance

did not meet expectations, and the counseling memorandum explained in detail the areas where

Plaintiff’s performance was unsatisfactory. Defendant states that Plaintiff was passed over for

advancements due to her lower quality of performance. While Plaintiff complains her title changed

and she was not allowed to participate in the boarding process, Defendant rebutted that Plaintiff is

not entitled to boarding because only her position title was changing, Plaintiff had recently been

trained, Plaintiff was provided with proper training materials, and Plaintiff was invited to weekly

training meetings. Although Plaintiff argues she was given a greater workload due to her race,

Defendant argues the increase in workload was the result of a staffing shortage. Plaintiff argues a

white employee was not chastised for submitting work late when Plaintiff was chastised for

submitting late work; however, Defendant submits that the white employee turned in the work

before the deadline expired.

Here, Defendant has provided a legitimate, nondiscriminatory explanation for Defendant

and Schwab’s actions supported with evidence; therefore, the burden has shifted to Plaintiff to

show “[b]y a preponderance of the evidence that the legitimate reasons offered by the defendant

were not its true reasons, but were a pretext for [discrimination or retaliation].”

Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143 (citations omitted). Plaintiff does not

provide any evidence showing why Defendant’s explanations are pretextual; therefore, Plaintiff

has not met her burden.

Accordingly, even if the Court were to find that Plaintiff established a prima facie case for

each claim, summary judgment in Defendant’s favor is appropriate because Plaintiff has not

satisfied her burden to show Defendant’s explanations are pretextual.

Conclusion

To summarize, the Court makes the following findings:

(1) Plaintiff’s race discrimination claim (Count I) fails because Defendant has shown there

is no genuine dispute of material fact that Plaintiff experienced an adverse employment

action;

(2) Plaintiff’s hostile work environment claim (Count II) fails because Plaintiff did not

exhaust her administrative remedies and Plaintiff did not establish a prima facie case

of a racially hostile work environment claim;

(3) Plaintiff’s retaliation claim (Count III) fails because Plaintiff did not exhaust her

administrative remedies and Defendant has shown there is no genuine dispute of

material fact that Plaintiff experienced an adverse employment action; and

(4) Plaintiff’s constructive discharge claim (Count IV) fails because Plaintiff did not

establish a prima facie case that her working conditions were intolerable.

Therefore, after careful consideration and for the reasons above, the Motion for Summary

Judgment is GRANTED.

IT IS SO ORDERED.

s/ Roseann A. Ketchmark

ROSEANN A. KETCHMARK, JUDGE

UNITED STATES DISTRICT COURT

DATED: July 24, 2019