Renee Sowell v. Alumina Ceramics ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-2320
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Renee Sowell, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Alumina Ceramics, Inc., an Arkansas * Eastern District of Arkansas.
Corporation; a subsidiary of CoorsTek, *
Inc., a Colorado Corporation, *
*
Appellee. *
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Submitted: February 14, 2001
Filed: June 1, 2001
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Before WOLLMAN, Chief Judge, BOWMAN, and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
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BOWMAN, Circuit Judge.
Renee Sowell appeals the adverse grant of summary judgment in her Title VII
sex discrimination suit against her former employer, Alumina Ceramics, Inc. See 42
U.S.C. § 2000e to e-17 (1994 & Supp. IV 1998). She alleges that material facts remain
in dispute regarding her claims against Alumina for sexual harassment, gender-based
wage discrimination, retaliation, and constructive discharge. We affirm.
I.
Renee Sowell began working at Alumina in 1989. Through participation in the
company's apprenticeship program, Sowell became a certified tool maker and worked
in Alumina's tool room. She was the only female tool maker employed in the tool room
throughout the time period at issue.
During her employment in the tool room, Sowell's immediate supervisor was
Hugh Richardson. While working under Richardson, Sowell performed extra duties
that included job scheduling, writing orders, completing time cards, preparing budgets,
generating tool set production costs, and assisting coworkers with their work. She
received additional pay for these duties only when Richardson was absent.
As a tool maker, Sowell earned the same pay as one other male tool maker until
late 1996. After 1996, she earned pay equal to two male tool makers and less than two
other male tool makers. The tool makers earning more than Sowell had only recently
been hired; Alumina cited market-related reasons for its decision to pay them more than
the other tool room employees.
Throughout her employment in the tool room, Sowell alleges she experienced an
atmosphere rife with sexually and racially-charged jokes, written materials, and
pictures. She frequently complained to Richardson about these materials. During the
last stage of her employment at Alumina, Steve Louks was the manager overseeing
Richardson and the tool room operations. Sowell also was subjected to inappropriate
behavior at the hands of Louks. In October 1996, she complained about Louks's
behavior to officials from Alumina's local and Colorado human resources offices. She
alleged that Louks had made inappropriate comments to her, such as asking if he could
see her tan lines, suggesting that she had engaged in sexual activity with Richardson
on a business trip, and telling her she should do her "woman's work" by mopping the
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tool room floor. An investigation ensued, and in November 1996 Louks received a
written reprimand for his behavior toward Sowell.
In the spring of 1997, tool room employees were told that they would be required
to work ten-hour work days and Saturdays because of an increased work load. Sowell,
who was pregnant at the time, received permission from her doctor to be excused from
those requirements.
Beginning in March 1997, Sowell took twelve weeks of maternity leave for the
birth of her child. She returned to work on June 9, 1997. On that day, two events
occurred that displeased Sowell. First, she observed some of her coworkers in the tool
room gathered around a desk and laughing. She did not see what the workers were
viewing, nor was she told by any of them of the contents of the material on the desk.
Second, Richardson advised her of a new policy, suggested by Louks, that tool room
employees wear pagers at night and on weekends in order to be available for
emergency tool repairs. The next day Sowell submitted her resignation letter.
Approximately two weeks later, Sowell inquired of Alumina's human resources office
regarding an open engineering position. The human resources official informed Sowell
that the position had been filled, when in fact it had been withdrawn.
Sowell filed a discrimination charge with the EEOC on December 5, 1997. The
EEOC issued a right-to-sue letter, and Sowell sued Alumina in the District Court.1 The
court granted summary judgment to Alumina on all claims. Sowell appeals.
1
The Honorable G. Thomas Eisele, United States District Judge for the Eastern
District of Arkansas.
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II.
We review de novo a district court's grant of summary judgment. Smith v. St.
Louis Univ., 109 F.3d 1261, 1264 (8th Cir. 1997). "To avoid summary judgment, the
non-movant must make a sufficient showing on every essential element of its claim on
which it bears the burden of proof." Buettner v. Arch Coal Sales Co., Inc., 216 F.3d
707, 718 (8th Cir. 2000), cert. denied, 121 S. Ct. 773 (2001).
Sowell argues that the District Court erred by granting summary judgment on her
Title VII sexual harassment claim. To prevail on this claim, Sowell must establish,
among other requirements, that unwelcome harassment occurred. Austin v. Minn.
Mining & Mfg. Co., 193 F.3d 992, 994 (8th Cir. 1999). The incident of unwelcome
harassment must have occurred within the 180 days preceding the plaintiff's filing of
her EEOC claim. 42 U.S.C. § 2000e-5(e)(1) (requiring that an aggrieved party file a
claim with the EEOC within 180 days after the "alleged unlawful employment practice
occurred").
The District Court granted summary judgment to Alumina because it found that
no actionable instance of harassment occurred during the statutory period, and therefore
Sowell could not use the continuing-violation theory to bring in alleged Title VII
violations outside the 180-day period to prove her claim. The continuing-violation
theory allows a court to consider allegedly discriminatory acts that occurred prior to the
180-day statute of limitations period where those acts are part of a continuing pattern
of discrimination and where a present violation exists. Jenson v. Eveleth Taconite Co.,
130 F.3d 1287, 1302-03 (8th Cir. 1997), cert. denied, 524 U.S. 953 (1998).
The District Court appropriately granted summary judgment to Alumina on
Sowell's sexual harassment claim. To state a valid claim Sowell must allege, at a
minimum, one incident within the 180-day period that, on its own merits, constitutes
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"unwelcome harassment." See Austin, 193 F.3d at 994. Only two days of Sowell's
employment by Alumina fall within the 180-day period: June 9 and June 10, 1997. On
June 9, Sowell alleged that she saw the men in the tool room gathered around
Richardson's desk, looking at something and laughing. She did not view the material
on the desk and she was not told of its contents. Cf. Carter v. Chrysler Corp., 173 F.3d
693, 701 n.7 (8th Cir. 1999) (holding that plaintiff's knowledge of offensive graffiti,
gained through hearsay, was relevant to whether hostile work environment existed and
whether plaintiff reasonably perceived other conduct to be abusive or hostile). Sowell's
allegation that she "knew" her coworkers were viewing offensive materials relies
entirely upon her interpretation of the event in light of experiences she endured outside
the 180-day time period. This episode is not evidence that demonstrates she was
exposed to offensive material or otherwise harassed within the 180-day period.
Because this incident does not rise to the level of actionable harassment, it cannot
trigger the continuing-violation theory. Inasmuch as all the other harassing behavior
alleged by Sowell occurred prior to the running of the 180-day statutory period, we
hold that she has failed to make a sufficient showing on the essential elements of her
sexual-harassment claim. We affirm the District Court's grant of summary judgment
on this claim.
III.
Sowell next argues that the District Court should not have granted summary
judgment on her wage-discrimination claim. A successful gender-based wage
discrimination claim under Title VII requires the plaintiff to prove that her employer
pays different wages to employees of opposite sexes "for equal work on jobs the
performance of which requires equal skill, effort, and responsibility, and which are
performed under similar working conditions." Corning Glass Works v. Brennan, 417
U.S. 188, 195 (1974) (Equal Pay Act); see also EEOC v. Delight Wholesale Co., 973
F.2d 664, 669 (8th Cir. 1992) (holding that same standard applies to Equal Pay Act and
Title VII wage-discrimination claims). Once the plaintiff has proven her prima facie
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case, the employer then bears the burden of coming forward with a legitimate
nondiscriminatory factor upon which it based the wages paid. See 29 U.S.C.
§ 206(d)(1) (1994); Hutchins v. Int'l Broth. of Teamsters, 177 F.3d 1076, 1080-81 (8th
Cir. 1999).
Sowell claims that Alumina required her to perform additional duties that
represented part of the job functions of a lead2 and that were not required of the other
tool makers in the tool room. She asserts that she was neither paid as a lead nor given
the appropriate job title, and she argues that she was paid less than, or the same as, all
the other tool makers in the tool room despite her performance of these additional
duties.
The District Court credited Alumina's defense that it had legitimate market-based
reasons for paying the new hires in the tool room more than it paid Sowell and the other
tool makers. The court also rejected Sowell's wage-discrimination argument regarding
her performance of lead duties. The court analyzed this claim under a failure-to-
promote theory, and held that Sowell's claim failed for two reasons. First, it concluded
that she never applied for any lead position within the company, as is required in a
failure-to-promote claim under Title VII. See Austin, 193 F.3d at 995. Second, it
found that her claim was time-barred by the 180-day rule. We affirm the grant of
summary judgment on this claim, but for reasons different from those of the District
Court.3
2
At Alumina, a lead is a position immediately below the supervisor that receives
additional compensation for performing some supervisory duties.
3
The record indicates that Sowell received her last paycheck within the 180-day
statutory period. Her claim is therefore not time-barred; rather, her damages—if
any—would be appropriately limited to those accruing within the statutory period. See
Ashley v. Boyle's Famous Corned Beef Co., 66 F.3d 164, 168 (8th Cir. 1995) (en banc)
(holding that each paycheck that pays a woman less than a similarly situated man is a
wrong actionable under Title VII, but allowing relief only for the discriminatory pay
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Sowell's claim for lead pay fails because she has not established that Alumina
paid any other employee differently for performing a job of "equal skill, effort and
responsibility" to her own. The record lacks specific evidence regarding the similarities
between Sowell's work and that of other employees in lead positions at Alumina. She
puts forward nothing more than conclusory allegations on this point, which are not
sufficient to create a genuine issue of fact to survive summary judgment. Cf. Tonelli
v. United States, 60 F.3d 492, 496 (8th Cir. 1995).
Finally, Sowell's wage discrimination claim regarding the discrepancy between
her pay and that of her tool-room coworkers also fails. The evidence establishes that
throughout her employment in the tool room she was paid the same as, or more than,
at least some male tool makers in the tool room. Such was the case even after Alumina
hired two new employees who were paid more than all the other tool room employees.
In any event, Alumina asserts in its defense that it had to pay higher wages to these
newly hired tool makers because of job market demands. Thus, Sowell has not
produced evidence sufficient to satisfy the elements of a prima facie Title VII case of
gender-based wage discrimination. We affirm the grant of summary judgment on this
claim.
IV.
Sowell next argues that Alumina retaliated against her in response to the
harassment complaint she lodged against Louks. "To establish a prima facie case of
Title VII retaliation, [the plaintiff] must show: (1) she engaged in activity protected by
Title VII; (2) she suffered an adverse employment action; and (3) a causal connection
[existed] between her protected activity and the adverse employment action." Bogren
v. Minnesota, 236 F.3d 399, 407 (8th Cir. 2000).
received within the limitations period).
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Sowell engaged in protected activity when she complained to human resources
about Louks's behavior toward her. Sowell cites three allegedly adverse employment
actions later taken by Alumina against her. She claims that both the ten-hour-day-plus-
Saturday policy and the on-call pager policy were targeted against her and were
intended to serve as retaliation for her complaint about Louks's conduct. Sowell also
asserts that Alumina retaliated against her when a human resources employee told her
that an open engineering position Sowell had called to inquire about two weeks after
she resigned had been filled. We hold that her proof that she suffered an adverse
employment action fails as a matter of law.
Adverse employment actions must have a "materially adverse impact" on the
plaintiff's terms or conditions of employment under Title VII. Coffman v. Tracker
Marine, L.P., 141 F.3d 1241, 1245 (8th Cir. 1998). Certain employment actions cannot
be characterized as adverse. Such actions include changes in the terms, duties, or
working conditions that cause no materially significant disadvantage to the employee;
an employer's demand, which was later withdrawn with no impact on employee's
continued employment, that an employee take a drug test; or disappointment with
changes in one's employment situation. See Spears v. Mo. Dep't of Corr. & Human
Res., 210 F.3d 850, 854 (8th Cir. 2000); Thomas v. St. Luke's Health Sys., Inc., 869
F. Supp. 1413, 1435 (N.D. Iowa 1994), aff'd, 61 F.3d 908 (8th Cir. 1995) (table);
Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994).
The District Court correctly held that because the work policies Sowell
complains of were never put into practice against her, she did not suffer an adverse
employment action. Cf. Thomas, 869 F. Supp. at 1435. Alumina did not single out
Sowell and impose the new ten-hour day and pager requirements solely upon her. The
policies applied to all tool room employees, male and female. Furthermore, Sowell was
never required to comply with either of these policies. She received a medical
exemption from the first, and she resigned before the second took effect. Thus, her
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dislike of these policies cannot translate into an actionable claim on her employment
conditions.
Moreover, Sowell's evidence fails to establish any causal connection between
the misinformation provided to her by human resources and the complaints of
discrimination she made against Louks. Sowell argues that she proved causation: the
temporal proximity between her resignation and the "lie" (approximately two weeks)
and the bare fact that the company misled her are, she asserts, sufficient evidence of
causation. The relevant protected activity was, however, her complaint in October
1996, not her resignation in June 1997. See Brower v. Runyon, 178 F.3d 1002, 1005
(8th Cir. 1999) ("Conduct is only protected . . . if it qualifies as participation 'in any
manner' in a Title VII 'investigation, proceeding, or hearing.'") (quoting 42 U.S.C.
§ 2000e-3(a)). Sowell must establish "more than a temporal connection between [her]
protected activity and an adverse employment action" in order to create a "genuine
factual issue on retaliation." Buettner, 216 F.3d at 716. Moreover, the seven-month
time lapse between the protected activity and the alleged retaliatory act is, without
more, too long for the incidents to be temporally—and therefore causally—related. See
Nelson v. J.C. Penney Co., 75 F.3d 343, 346-47 (8th Cir.) (holding that plaintiff fired
one month after he filed age-discrimination charge failed to establish causal link
without more evidence than temporal proximity), cert. denied, 519 U.S. 813 (1996).
We affirm the judgment on Sowell's Title VII retaliation claim.
V.
Finally, Sowell asserts that Alumina constructively discharged her in June 1997.
Under Title VII, "[a] constructive discharge occurs when an employer renders the
employee's working conditions intolerable, forcing the employee to quit." Johnson v.
Runyon, 137 F.3d 1081, 1083 (8th Cir.) (per curiam) (internal quotations omitted), cert.
denied, 525 U.S. 916 (1998). A successful claim requires more than simply showing
that an employer's actions have violated Title VII. Hutchins, 177 F.3d at 1082. The
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employee's decision to resign must be reasonable in light of the circumstances; we have
stressed that "[t]o act reasonably, an employee has an obligation not to assume the
worst and not to jump to conclusions too quickly." Coffman, 141 F.3d at 1247 (quoting
Tidwell v. Meyer's Bakeries, Inc., 93 F.3d 490, 494 (8th Cir. 1996)). The employee
must allow the "employer a reasonable opportunity to work out a problem." Id.
Like the District Court, we conclude that summary judgment must be granted on
Sowell's constructive-discharge claim. As we previously held, no actionable instance
of sexual harassment occurred during the time period relevant to this claim.
Furthermore, Sowell's retaliation claim fails for lack of proof. Thus, the only action
relevant to Sowell's constructive-discharge claim was the announcement of the pager
policy. That evidence is insufficient to sustain her claim for two reasons. First, like the
ten-hour day policy, Sowell never had to comply with the pager policy at all, and
evidence suggests that it was never put into practice. Second, Sowell quit without
giving Alumina a reasonable chance to work out the alleged problem. Sowell stated
that she could not comply with the policy because of her need to care for her newborn
infant. Sowell complained to Richardson on June 9 regarding the policy, but she took
no further steps to exempt herself from its requirements, such as getting a note from her
doctor regarding her infant's needs or approaching human resources about the policy
itself or about flexible work arrangements. Sowell failed to avail herself of the
channels of communication provided by Alumina to deal with such complaints. See
Coffman, 141 F.3d at 1247-48 (reversing constructive-discharge judgment in part
because employee had avenue of redress within company and failed to use it).
VI.
Finding no disputed issues of material fact, we affirm the judgment of the District
Court.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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