Rashid Arraleh v. Cty. of Ramsey ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-4474
___________
Rashid Arraleh, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
County of Ramsey; Terry Zurn, *
Individually, *
*
Appellees. *
___________
Submitted: June 15, 2006
Filed: September 7, 2006
___________
Before SMITH, HEANEY, and GRUENDER, Circuit Judges.
___________
SMITH, Circuit Judge.
Rashid Arraleh sued his former employer, the County of Ramsey ("the
County"), and his former supervisor, Terry Zurn, in his individual capacity, asserting
claims under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e to 2000e-17; 42
U.S.C. § 1981; and the Minnesota Human Rights Act, Minn. Stat. § 363A.01-.41.
Specifically, Arraleh alleged that the County discriminated against him on the basis
of race and national origin. He further alleged that the County retaliated against him
and created a hostile work environment. The district court1 granted summary judgment
to the County and Zurn on all of Arraleh's claims. Arraleh appeals. We affirm.
I. Background
Workforce Solutions ("WFS") is a County program that assists people in
finding gainful employment. In late 2001, WFS needed to hire an Employment
Guidance Counselor ("EGC") to meet its obligations. Terry Zurn, supervisor for
WFS's Displaced Worker Program, decided to hire a temporary, six-month EGC.
Zurn, with approval of WFS's director, Patricia Brady, hired Rashid Arraleh. Arraleh,
a black Muslim immigrant from Somalia, began working as an EGC on December 17,
2001. By state law and corresponding County personnel rules, Arraleh's temporary
employment was predetermined to end no later than May 31, 2002. Arraleh accepted
the position, hoping to obtain a permanent position with WFS.
To assist Arraleh in his new position, Zurn assigned Kim Kruelle, a Korean
American with ten years' experience as an EGC, to mentor Arraleh. During Arraleh's
six-month term, at least four of his WFS coworkers and at least two clients made
complaints against him. Arraleh developed a history of double-booking, missing and
appearing late for client appointments, leaving the office without signing out or
informing his supervisor of where he was going, and poor customer service.2 Arraleh
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
2
The following are Arraleh's recorded deficiencies:
On January 7, 2002, Arraleh could not be located even though he was supposed
to be with several other EGCs for client-intake meetings. In addition, during January
2002, Zurn reprimanded Arraleh twice for taking vacation without proper notice and
leaving the building without signing out.
At a lunch with a dislocated worker, Arraleh said in a loud voice, "Who do I
have to sleep with to get service around here?"
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On March 7, 2002, Kruelle met with Arraleh to discuss a situation in which a
client had arrived for a scheduled appointment only to learn that Arraleh had signed
out for the day. She also wanted to discuss the importance of keeping client
appointments, attending team meetings, and not double booking. Arraleh told her that
she was saying these things only because he was a "little black boy." Kruelle then
stopped the meeting and asked another staff member to witness the balance of the
discussion because she felt Arraleh was implying that she was a racist. Arraleh then
said he was "just joking."
On March 8, 2002, Arraleh was "in a panic" when a client showed up for a
scheduled appointment. Arraleh said "WFS" had "another mix-up," but the schedule
showed that Arraleh actually caused the scheduling error. Arraleh blamed another
employee for entering the appointment incorrectly.
On March 12, 2002, at 9:00 a.m., Arraleh met an applicant for WFS services
in the lobby and scheduled an appointment to meet the client at 2:00 p.m. in the
afternoon. Arraleh arrived for the appointment 55 minutes late.
On March 14, 2002, Zurn met with Arraleh to assess his performance and
advised Arraleh that he needed to improve his poor customer service and poor time
management, citing a recent example where Arraleh had missed a client appointment
because he had also scheduled a vacation day. Zurn advised Arraleh that such repeated
conduct would be grounds for dismissal in some businesses.
On April 2, 2002, Zurn spoke with Arraleh about another missed client
appointment where Arraleh scheduled the appointment for April 1 and then took the
day off as a flextime day. Arraleh said he had "totally forgotten" about the
appointment. Zurn then counseled Arraleh about his scheduling practices.
On April 25, 2002, Arraleh wrote Kruelle two e-mails, the first of which stated:
Tell the world how wonderful I am tell the world that you have see [sic]
a deity a divine person tell the world you Kim Kruelle swears you have
seen the sight of God with your own [sic] and he works with you. From
the Almighty himself
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does not dispute his documented deficiencies; instead, he alleges that double-booking
and missing appointments were common occurrences at WFS. Coworkers Donna
Waldhauser, Loretta Novak, and Mary Haigh testified in support of Arraleh's claims.3
Later the same afternoon, Arraleh wrote:
NO THE ANSWER IS I AM JESUS
On May 7, 2002, Arraleh asked employees at the WFS front desk to cancel his
appointments for the day. All clients were canceled but two. When the first client
arrived promptly at 10:00 a.m., Kruelle introduced herself to the client. The client
responded, "He's not here again?" The client then told Kruelle that it was "apparent
that Rashid was new to the job." Kruelle apologized and said that she would keep the
client's file.
3
Donna Waldhauser, an EGC, testified that she was surprised by complaints
from Arraleh's coworkers that Arraleh missed appointments because she was aware
of other employees, including Kruelle, who had also missed appointments.
Waldhauser herself admitted to occasionally missing appointments. However,
Waldhauser was unaware of any coworker complaints to supervisors about other
employees missing appointments, except for those about Arraleh.
Loretta Novak, an EGC, testified that some of her coworkers criticized Arraleh
for missing appointments or double-booking appointments. She stated that a white
employee hired at the same time as Arraleh, Mary White, also missed appointments
and double-booked, but was not subject to criticism. According to Novak, the other
counselors covered for White and did not report the incidents to Zurn. Novak did meet
with Zurn to discuss her concerns about the hostile way employees were treating
Arraleh, but Zurn did not respond.
Also, another EGC, Mary Haigh, testified that she found it surprising that her
coworkers complained that Arraleh missed appointments with clients because it was
a routine occurrence in their department to miss appointments. She stated that white
EGCs miss client meetings or are unable to be located during the work day as often
as several times per week. These employees do not sign out when they leave the
office. However, Haigh admitted that she never heard anyone complain to any
supervisors about these employees missing client appointments or being absent from
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According to Arraleh, Zurn treated him differently than white employees.
Specifically, Arraleh contends Zurn made a computer log of complaints against him
but never did so for white employees. When complaints were lodged against other
employees, Zurn simply spoke with the individual and made no record of the
complaint. In contrast, when white employees complained about Arraleh, Zurn did not
discuss the matter with him or disclose his computer log's contents.
Toward the end of Arraleh's six-month temporary employment, Zurn provided
a letter of reference at Arraleh's request because Arraleh was looking for a job. In
addition, Zurn informed Arraleh of an open part-time Resource Specialist position.
On May 22, 2002, Arraleh met with Brady to complain that he did not think it
was fair that he was "excluded" from a department lunch party because only ham was
served. During the meeting, Arraleh said he "spoke his heart out" regarding how he
felt about the department. In response to his specific complaint about ham being
served, Brady apologized, said that WFS "should have known better," and sent out an
e-mail to the staff "to be sensitive to other people's religions."
Brady also asked Arraleh to put his other concerns about the department in
writing. Arraleh did so. In his written complaint, Arraleh asserted that racism and race
issues "are so fundamental in WFS that they seem almost an integral component."
Specifically, Arraleh claimed to have witnessed coworkers "use words like 'those
people,' those damn Muslims." In addition, he overhead coworkers say "'[y]ou people
are emotional[,]' referring to people of African descend [sic]." Also, Arraleh said that
he "personally ha[d] been insulted, degraded, categorized as lazy and skipping work
[sic]. While all along my supervisor knew where and what I was doing." He said that
"[e]very time when two people of color go to lunch or talk there is imminent danger
for WFS 'white' staff" because "[t]hey assume that their jobs are in jeopardy or we are
the office without signing out.
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up to no good." Finally, Arraleh wrote that "[w]hen we get passed over for a position
or not allow[ed] to participate on a committee or interviewing panel, we should
understand that there were other factors involved not our race." Arraleh thinks he gave
Brady the written complaint two days after their meeting. He "presumed she was
going to find out what was going on" and "guess[ed] she did."
In response to the complaint, Brady contacted Zurn and advised him that
Arraleh felt that the staff was singling him out because he was black and Muslim.
Zurn responded that Arraleh's situation involved sub-par client service and that
Arraleh's coworkers were distancing themselves from Arraleh because of their
frustration with having to pick up Arraleh's workload. Brady also contacted George
Hamm, her assigned Human Resources representative, asking him to follow up on
Arraleh's complaint. In turn, Hamm contacted Arraleh, advised him that the County
takes discrimination seriously, and set up an appointment with Arraleh on June 3,
2002. Arraleh canceled the appointment.
After Arraleh's complaints to Brady in May 2002, coworker Michael Ellison
told Arraleh that he had "cooked his own goose" and there was no way that WFS
would hire him for a permanent position. In addition, Arraleh claims to have
overheard a conversation in which a County Planner told Zurn that "[g]iving [Arraleh]
a job is like raising terrorist kids."
The County's temporary employees may apply for available permanent
positions. When a department has an opening for a permanent position, it submits a
request to the County's Human Resources Department for a list of eligible applicants.
These lists, generated independently by Human Resources, contain the names of the
top applicants based on points awarded for application-question responses and test
scores. The department seeking the lists, in this case WFS, must hire individuals
appearing on these lists.
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Shortly after his hiring and during Arraleh's temporary employment, WFS
requested four lists of eligible applicants from Human Resources. First, on January 29,
2002, WFS received a list that did not include Arraleh's name for any of four EGC
openings. WFS hired two Asian persons, a Caucasian, and a Somali to fill these
positions. Each of these hires was for the "Welfare to Work" section of WFS, not
Zurn's Displaced Worker program where Arraleh worked. Second, on May 13, 2002,
WFS received an updated list of eligibles to fill one EGC position. Arraleh's name did
not appear on this list either. Third, on May 28, 2002, WFS requested a third updated
list to fill two EGC Aide positions; Arraleh's name did appear on the list for these
positions. Based upon his scores, Arraleh ranked 6th out of 13 eligible candidates and
was interviewed for the positions. Finally, on June 3, 2002, Human Resources
supplied WFS with a fourth updated list of eligibles to fill an EGC position. Arraleh
appeared on the list of eligibles and ranked second out of the four applicants. He was
not interviewed for this position.
Bruce Heinz, a WFS supervisor, and Zurn interviewed Arraleh for the EGC
Aide positions. Prior to interviewing Arraleh, they consulted Hamm, who advised
them to follow the already-defined selection process and to interview and evaluate
Arraleh in the same manner as any other candidate. Hamm advised Heinz and Zurn
that the hiring process and Arraleh's complaint were separate matters and that Hamm
would follow up on the latter with Arraleh in an exit interview.
After interviewing all of the applicants for the EGC Aide positions, Heinz and
Zurn recommended to Brady that she hire Sharron Gates and JoAnn Mays. Both
women are African American and ranked eighth and tenth on the list, respectively.
WFS awarded the EGC position to an African-American male, Walter Rhodes, who
ranked fourth on the final list of eligibles.
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On June 21, 2002, Zurn wrote Arraleh a rejection letter, which stated that
WFS's hiring decision "was based on our determination that the education and work
experience of the candidate we selected best fits the requirements of this position."
Arraleh subsequently filed a charge of discrimination with the Minnesota
Department of Human Rights and the Equal Employment Opportunity Commission
(EEOC). After receiving notices of his right to sue, Arraleh commenced this lawsuit,
alleging that the County discriminated against him on account of his race and national
origin by declining to hire him for continued employment, retaliated against him for
the complaint he made to Brady and created a hostile work environment.
II. Discussion
Arraleh raises three arguments on appeal. First, he argues that the district court
improperly granted summary judgment to WFS and Zurn on his failure to hire claim.
Second, he argues that the district court erred by granting summary judgment to WFS
and Zurn on his retaliation claim. Finally, he asserts that the district court erred by
summarily dismissing his hostile work environment claim.
"We review grants of summary judgment de novo." Wojewski v. Rapid City
Reg'l Hosp., Inc., 450 F.3d 338, 342 (8th Cir. 2006) (internal quotations and citation
omitted). "Summary judgment is appropriate when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law." Id.(internal quotations and citations omitted).
A. Failure to Hire
Arraleh asserts that he provided direct evidence of discrimination, including a
remark by a County Planner that hiring Arraleh was like "raising little terrorist kids"
and a remark by Brady that employees should "leave their blackness behind." In
addition, he maintains that the district court erred in its application of the burden-
shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), by
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requiring him to show that he met more than the minimum objective qualifications of
the positions in his prima facie case. Finally, Arraleh argues that he was objectively
more qualified for the positions than the candidates hired.
"[A] plaintiff may survive the defendant's motion for summary judgment in one
of two ways." Griffith v. Des Moines, 387 F.3d 733, 736 (8th Cir. 2004). First, the
plaintiff may present direct evidence of discrimination, which "is evidence 'showing
a specific link between the alleged discriminatory animus and the challenged decision,
sufficient to support a finding by a reasonable fact finder that an illegitimate criterion
actually motivated' the adverse employment action." Id. (quoting Thomas v. First Nat'l
Bank of Wynne, 111 F.3d 64, 66 (8th Cir. 1997)). When a plaintiff provides direct
evidence of discrimination, the three-part McDonnell Douglas analysis is unnecessary.
Id. "But if the plaintiff lacks evidence that clearly points to the presence of an illegal
motive, he must avoid summary judgment by creating the requisite inference of
unlawful discrimination through the McDonnell Douglas analysis, including sufficient
proof of pretext." Id."[N]ot every prejudiced remark made at work supports an inference of illegal
employment discrimination." Rivers-Frison v. Southeast Mo. Cmty. Treatment Ctr.,
133 F.3d 616, 619 (8th Cir. 1998). "We have carefully distinguished between
comments which demonstrate a discriminatory animus in the decisional process or
those uttered by individuals closely involved in employment decisions, from stray
remarks in the workplace, statements by nondecisionmakers, or statements by
decisionmakers unrelated to the decisional process." Id. (internal quotations, citations,
and alteration omitted).
Here, Arraleh asserts that the County Planner's statement to Zurn that "[g]iving
[Arraleh] a job is like raising terrorist kids" is direct evidence of discrimination.
However, this remark was made by a County employee with no authority to make the
hiring decision on Arraleh's application. The record does not contain evidence
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showing that the County Planner's comment influenced Zurn not to hire Arraleh for
a permanent position. Arraleh's evidence does not show that, after hearing the County
Planner's remark, Zurn failed to review Arraleh's application or consider his
performance evaluations before recommending to Brady that she hire other
candidates. Fast v. S. Union Co., Inc., 149 F.3d 885, 891 (8th Cir. 1998) (noting that
the decisionmaker, who heard discriminatory comments made by a nondecisionmaker,
failed to review the plaintiff's personnel file and performance evaluations before
terminating the plaintiff's employment).
As for Brady's comment to Arraleh that "black people are expected to leave
their blackness behind," Arraleh failed to provide context for this statement and show
some link to his not being hired. Without more, no reasonable fact finder could, on the
basis of Brady's remark, find that Zurn's hiring decision was racially motivated. At
most, the comment is an ambiguous statement by a decisionmaker unrelated to the
decisional process. The comment does not constitute direct evidence of
discrimination.
Finding that no direct evidence of discrimination exists, we must evaluate
Arraleh's claim under the McDonnell Douglas burden-shifting analysis. Kenney v.
Swift Transp., Inc., 347 F.3d 1041, 1044 (8th Cir. 2003). A plaintiff establishes a
prima facie case in a "failure to hire" case when he proves that (1) he is a member of
a protected class; (2) he was qualified for the position for which the employer was
accepting applications; (3) he was denied the position; and (4) the employer hired
someone from outside the protected class. Kobrin v. Univ. of Minn., 34 F.3d 698, 702
(8th Cir. 1994).
Once the plaintiff establishes his prima facie case, the employer may rebut the
prima facie case by articulating one or more legitimate, nondiscriminatory reasons for
its decision. Pope v. ESA Serv., Inc., 406 F.3d 1001, 1007 (8th Cir. 2005). This burden
is not onerous, nor does the explanation need to be demonstrated by a preponderance
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of the evidence. Floyd v. Mo. Dept. of Soc. Servs., 188 F.3d 932, 936 (8th Cir. 1999).
If the employer presents a nondiscriminatory reason for its decision, the plaintiff is
"left with 'the opportunity to demonstrate that the proffered reason is not the true
reason for the employment decision.'" Wallace v. DTG Operations, Inc., 442 F.3d
1112, 1120 (8th cir. 2006) (quoting Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S.
248, 255 (1981)).
A plaintiff may establish pretext by showing "that the employer changed its
explanation for why it fired the employee . . . ." Stallings v. Hussmann Corp., 447
F.3d 1041, 1052 (8th Cir. 2006). However, we are mindful that "[t]here is a strong
inference that discrimination was not a motivating factor if the same person hired and
fired the plaintiff within a relatively short period of time." Herr v. Airborne Freight
Corp., 130 F.3d 359, 362 (8th Cir. 1997); see also Lowe v. J.B. Hunt Transp., 963
F.2d 173, 174–75 (8th Cir. 1992) (holding in an age discrimination case that "[i]t is
simply incredible, in light of the weakness of plaintiff's evidence otherwise, that
company officials who hired him at age fifty-one had suddenly developed an aversion
to older people less than two years later.").
We have previously addressed a plaintiff's argument that her employer's
"discriminatory animus [was] evidenced by the fact that [her employer] hired someone
less qualified than her for [the position]." Kincaid v. City of Omaha, 378 F.3d 799 (8th
Cir. 2004). In rejecting the plaintiff's argument, we held:
Although an employer's selection of a less qualified candidate "can
support a finding that the employer's nondiscriminatory reason for the
hiring was pretextual," it is the employer's role to "[i]dentify [ ] those
strengths that constitute the best qualified applicant." Duffy v. Wolle, 123
F.3d 1026, 1037–38 (8th Cir. 1997). This is so because "the
employment-discrimination laws have not vested in the federal courts the
authority to sit as super-personnel departments reviewing the wisdom or
fairness of the business judgments made by employers, except to the
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extent that those judgments involve intentional discrimination." Hutson
v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir. 1995).
Id. at 805. Because the plaintiff could not show that the employer hired a "less
qualified applicant" as opposed to an equally qualified candidate, her claim failed. Id.(emphasis in original) (citing Lidge-Myrtil v. Deere & Co., 49 F.3d 1308, 1311 (8th
Cir. 1995) ("Although [an employee] does possess the experience and some of the
other qualities essential for success in the position, this does not suffice to raise an
inference that [the employer's] stated rationale for giving the position to another is
pretextual."); Pierce v. Marsh, 859 F.2d 601, 604 (8th Cir. 1988) ("The mere existence
of comparable qualifications between two applicants, one black male and one white
female, alone does not raise an inference of racial discrimination.")).
We hold that even if Arraleh, contrary to the district court's determination, did
establish a prima facie case of intentional discrimination, he failed to present evidence
sufficient to support a finding that the County's declared reason for declining to hire
him was a pretext for race and national origin discrimination. See Hennessey v. Good
Earth Tools, Inc., 126 F.3d 1107, 1108 (8th Cir. 1997) ("We hold that even if
Hennessey, contrary to the District Court's determination, did establish a prima facie
case under the ADEA and MHRA (a question we need not and do not decide), he did
not present evidence sufficient to support a finding that Good Earth's declared reason
for firing him was a pretext for age discrimination.").
The County and Zurn offered a legitimate, nondiscriminatory reason for not
hiring Arraleh. Zurn's rejection letter to Arraleh stated that WFS's decision not to hire
Arraleh "was based on our determination that the education and work experience of
the candidate we selected best fits the requirements of this position." Zurn also
testified in his deposition that he and Heinz recommended that Brady hire Mays
because "she was the best candidate for the position." In affidavits submitted by Brady
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and Zurn, both stated that they did not hire Arraleh, specifically, because of his poor
performance and because he was not a "team player."
Therefore, the burden shifted back to Arraleh to prove pretext. While Arraleh
argues that he established pretext by showing that the County changed its explanation
for why it did not hire him, the later affidavits by Brady and Zurn do not give a
different explanation but instead elaborate on the same explanation. Specifically, the
testimony showed why the candidates selected had better "work experience" and
better "fit the requirements for the position" than Arraleh. We note also that the same
supervisor—Zurn—both hired and subsequently declined to hire Arraleh for a
permanent position within a six-month time period. This fact suggests that racial and
national origin discrimination were not the motivating factors behind the adverse
employment action.
Arraleh argues disparate disciplinary treatment for missing and double-booking
appointments. He contends white employees did the same things without being
reprimanded. However, Arraleh presented no evidence that Brady or Zurn knew of
such conduct and treated whites preferentially. In fact, his own witnesses admitted that
they were unaware if any of the white employees' conduct alleged by Arraleh was
reported to Zurn. Furthermore, the candidates actually hired for the jobs Arraleh
applied for were all minorities with the exception of one white male. Several white
applicants on the list of eligibles were rejected for the positions. These facts undercut
Arraleh's argument that the County was engaging in discrimination on the basis of
race or national origin. We decline to second guess the employer's identification of
those strengths that constitute the best qualified applicant.
Accordingly, we hold that the district court properly granted summary judgment
to the County and Zurn on Arraleh's failure to hire claim.
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B. Retaliation
Arraleh's second argument on appeal is that the district court erred in dismissing
his claim for retaliation because it ignored settled circuit precedent that a temporal
proximity of three weeks between protected conduct and the adverse employment
action is sufficient to articulate a prima facie case of retaliation as a matter of law. In
addition, he argues that the district court wholly ignored his evidence of pretext.
In a retaliation claim, the plaintiff establishes his prima facie case by showing
that: "(1) he engaged in protected conduct by either opposing an act of discrimination
made unlawful by Title VII or participating in an investigation under Title VII; (2) he
suffered an adverse employment action; and (3) the adverse action was causally linked
to the protected conduct." Singletary v. Mo. Dept. of Corr., 423 F.3d 886, 892 (8th
Cir. 2005).
We again assume, without deciding, that Arraleh has established his prima facie
case of retaliation. Therefore, we address only whether Arraleh proved pretext.
"An inference of a causal connection between a charge of discrimination and
[an adverse employment action] can be drawn from the timing of the two events, but
in general more than a temporal connection is required to present a genuine factual
issue on retaliation." Wallace, 442 F.3d at 1119 (internal quotations and citation
omitted). Engaging in protected activity "does 'not insulate an employee from
discipline for . . . disrupting the workplace.'" Wallace v. Sparks Health Sys., 415 F.3d
853, 858 (8th Cir. 2005) (quoting Kiel v. Select Artificials, Inc., 169 F.3d 1131 (8th
Cir. 1999)) (alteration in original).
In the present case, a period of three weeks between Arraleh's complaint of
discrimination and his failure to receive a permanent position with the County may
suffice to establish causation in his prima facie case. However, temporal proximity
alone is generally insufficient to prove pretext. As we previously noted, the County
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and Zurn presented evidence regarding Arraleh's deficiencies during his temporary
employment, all of which were recorded before Arraleh ever complained of
discrimination. Therefore, we hold that the district court properly granted summary
judgment to the County and Zurn on Arraleh's retaliation claim.
C. Hostile Work Environment
Finally, Arraleh argues that, in dismissing his hostile work environment claim,
the district court "wholly ignored the affidavits of Arraleh's co-workers demonstrating
that some of Arraleh's co-workers were vehemently, passionately hostile toward black
men, immigrants and Muslims generally, and Arraleh specifically."4 In addition,
4
From the beginning of his employment, Arraleh claims that he was subjected
to intense negative scrutiny and derogatory comments from his coworkers about his
race, appearance, and national origin. These comments included statements such as
"today your skin doesn't look as white as it normally does," "it's difficult to work with
you people," "you are always late," "you people are so emotional, is your culture
always like this," "the reason you people never get jobs is because you are always
listening to loud music," "employers never call back you people," "I don't think you
do as much work as we do," "is your hair real," "giving Rashid a job is like raising
little terrorist kids," and "Mr. Cocoa." In addition, according to Arraleh, WFS director
Patricia Brady, an African-American female, told him that "black people are expected
to leave their blackness behind." When asked how these statements related to his race
or national origin, Arraleh replied, "I don't know. They just felt I was lazy, I was not
up to standard, I was not as much human as they were. That is how I felt personally."
Arraleh supported his allegations with testimony from Haigh and Waldhauser.
Haigh testified that she heard many negative and offensive comments about Arraleh,
such as referring to Arraleh as "lazy" and "stupid," stating that Arraleh did not know
what he was doing, and calling Arraleh "little" and "cute." In addition, Haigh testified
to hearing a coworker say that "Muslims should all be killed" after meeting
Waldhauser's husband, who is from Kuwait.
Waldhauser testified that Arraleh's coworkers made derogatory remarks both
to him and about him regarding his skin, hair, and appearance. For example, she
testified that a coworker called him the "beautiful one." In addition, she heard
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Arraleh argues that the district court should have considered evidence that two of his
coworkers were so concerned about the hostility expressed toward Arraleh that they
approached Zurn to discuss it.
To establish a hostile work environment claim, the plaintiff must establish that:
(1) he is a member of a protected class; (2) he was exposed to unwelcome harassment;
(3) the harassment was based on a protected characteristic of the plaintiff; (4) the
harassment affected a term, condition, or privilege of employment; and (5) the
employer knew or should have known about the harassing behavior, but failed to take
proper action to alleviate it. Al-Zubaidy v. TEK Indus., Inc., 406 F.3d 1030, 1038 (8th
Cir. 2005).
To demonstrate that harassment altered the terms and conditions of one's
employment, the conduct alleged must be severe and pervasive, both objectively and
subjectively. Howard v. Burns Bros., Inc., 149 F.3d 835, 840 (8th Cir. 1998). When
determining whether a work environment is hostile or abusive, we examine all of the
circumstances, including "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." Al-
Zubaidy, 406 F.3d at 1038.
Harassment standards are demanding. Id. "[S]imple teasing, offhand comments,
and isolated incidents (unless extremely serious) will not amount to discriminatory
changes in the terms and conditions of employment." Id. at 1039 (internal quotations
and citations omitted) (holding that the district court properly dismissed plaintiff's
hostile work environment claims because "[m]ost of [the manager's] offhand and
isolated comments were wholly unrelated to each other and had a tenuous connection
disparaging remarks about Muslims and African immigrants generally. In addition to
disparaging remarks made by coworkers, Waldhauser also interpreted some
coworkers' comments as suggesting that Arraleh was not working.
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to race, sex, religion or national origin."). "Mere utterance of an epithet which
engenders offensive feelings in an employee does not sufficiently affect the conditions
of employment" to support a claim of hostile work environment. Elmahdi v. Marriott
Hotel Servs., Inc, 339 F.3d 645, 653 (8th Cir. 2003) (internal quotations, alterations,
and citation omitted).
Even if the plaintiff can establish that the harassment is "severe and pervasive,"
the plaintiff must then present evidence that the employer "knew or should have
known about the harassment and failed to respond in a prompt and effective manner."
Diaz v. Swift-Eckrich, Inc., 318 F.3d 796, 801 (8th Cir. 2003). In determining whether
the employer failed to take "prompt and effective remedial action to end the
harassment," we consider "the amount of time between notice of the harassment and
any remedial action, the options available to the employer such as employee training
sessions and disciplinary action taken against the harassers, and whether or not the
measures ended the harassment." Id. (internal quotations and citation omitted).
Here, Arraleh testified as to statements he heard various coworkers make, and
two of his coworkers, Haigh and Waldhauser, testified to hearing other employees
make disparaging remarks not only about Arraleh but also about Muslims and African
immigrants in general. We conclude Arraleh's evidence does not meet the rigorous
standards reflected in circuit precedent to support a hostile work environment claim.
As in Al-Zubaidy, many of the alleged comments were wholly unrelated to Arraleh's
race or national origin or had a tenuous connection to them. In fact, when asked what
any of the comments had to do with his race or national origin, Arraleh responded that
he did not know; he just felt that his coworkers thought he was lazy and "not up to
standard."
Furthermore, Arraleh's claim is weakened by the absence of evidence that the
comments interfered with his ability to perform his duties as an EGC. Many of the
comments were not made in Arraleh's presence or made specifically about Arraleh.
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Finally, even if we concluded that Arraleh satisfied the first four elements of
a hostile work environment claim, he did not provide evidence that the County failed
to respond to the harassment in a "prompt and effective manner." After Arraleh met
with Brady to discuss his complaint of harassment, Brady immediately contacted
Hamm, the Human Resources representative, and asked him to follow up on Arraleh's
complaint. Then, Hamm contacted Arraleh, advised him that the County took such
issues very seriously, and set up an appointment with Arraleh to discuss the complaint.
Arraleh canceled the appointment with Hamm.
Therefore, we find no error in the district court's grant of summary judgment
to the County and Zurn on Arraleh's hostile work environment claim.
III. Conclusion
Accordingly, we affirm the judgment of the district court in all respects.5
HEANEY, Circuit Judge, dissenting.
I respectfully dissent. In my view, there are material issues of fact that made
summary judgment inappropriate on Rashid Arraleh’s claims of hostile work
environment, failure to hire, and retaliation.
Arraleh is a black Muslim immigrant from Somalia. During his six-month
tenure of employment with Ramsey County, he was directly subjected to the following
comments:
• “Today, your skin doesn’t look as white as it normally does” (Appellant’s App.
at 48);
5
"Because [Arraleh's] claims under the Missouri Human Rights Act are
premised on the same factual bases as his [federal] claims, they must also fail." Kiel
v. Select Artificials, Inc., 169 F.3d 1131, 1137 (8th Cir. 1999).
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• Being referred to as “Mr. Cocoa” (id. at 59-61);
• “Is your hair for real?” (id. at 56);
• “It’s very difficult to work with you people” (id. at 52);
• African-Americans are “very difficult to work with” because they are “very
emotional” and “take things too personally” (id. at 43); and
• “[B]lack people are expected to leave their blackness behind” (id. at 41).
Given this litany, it is obvious that this is not a case of an isolated, backhanded
comment. Rather, it was a stream of comments that reveal an office that was hostile
toward Arraleh because of his race and religion. This behavior infected the entire
office environment, as Arraleh’s co-workers observed discriminatory actions and
behavior. See Leibovitz v. New York City Transit Auth., 252 F.3d 179, 190 (2nd Cir.
2001) (noting that “evidence of harassment directed at other co-workers can be
relevant to an employee’s own claim of hostile work environment.”) Mary Haigh
attested that a co-worker named Mary Michael vehemently stated, “Muslims should
be killed.” (Appellant’s App. at 1.) In fact, Michael’s comments about Arraleh, in
particular, and Muslims, in general, were so volatile and angry that Haigh tried to
avoid mentioning Arraleh’s name and refused to discuss anything related to Muslims
and the Middle East.
Waldhauser attested that she, too, heard a steady stream of disparaging
comments about Muslims and African immigrants, including the statement that
“Muslims should all be killed.” (Id. at 12.) These views became personalized to the
point that Arraleh was subjected to intense scrutiny by his co-workers, several of
whom repeatedly called Waldhauser to learn if Arraleh had missed or double booked
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appointments. This happened even though Waldhauser testified that Arraleh’s
immediate supervisor had herself missed numerous appointments on a project she
shared with Waldhauser.
Loretta Novak, while working in another location, attested she saw similar
behavior toward Arraleh. He was criticized for missing or double booking
appointments, even though the same behavior from a similarly situated white
employee was regularly tolerated. Even though Waldhauser and Novak worked in
separate offices, they found the behavior so unacceptable that they complained to Zurn
that Arraleh was facing unwarranted hostility. Moreover, Waldhauser and Novak met
with Patricia Brady, WFS’s director, after Arraleh’s employment term finished to
again complain about the discrimination he suffered.
Arraleh clearly felt he was the victim of hostility based on his race and religion
when he overheard a county planner say, “[g]iving [Arraleh] a job is like raising
terrorist kids,” (id. at 66) and being directly told by a supervisor that he needed to
leave his blackness at the door. Objectively, three coworkers felt strongly enough
about the nature and effect of these comments that two reported it to Zurn and a third
acted by refusing to mention Arraleh’s name. In other words, three reasonable,
objective coworkers found that these bigoted attitudes toward Arraleh were prevalent;
two of those coworkers believed it resulted in Arraleh being subjected to a heightened
level of job scrutiny.
In this instance, Arraleh alleges he was subjected to daily comments and actions
over a relatively short period of time–six months. Arraleh also presents the testimony
of coworkers who found the actions and comments directed at Arraleh equally
offensive and believed that these attitudes subjected Arraleh to a stricter code of
conduct than was applied to white coworkers. I have no trouble concluding that
Arraleh produced sufficient evidence to make out a submissible case on his hostile
work environment claim.
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The majority also fails to take into account the discriminatory impact of these
attitudes on Arraleh’s failure-to-hire claim. Even though Arraleh’s coworkers were
not his official superiors, their impact on this decision was influential. A direct
evidence inquiry is not limited to those officially entrusted with decision-making
responsibilities. If a reasonable factfinder can conclude that a third party was closely
involved in the decision-making process, then the analysis can extend to those who
unofficially influence the decision-making process. Mohr v. Dustrol, Inc., 306 F.3d
636, 641-42 (8th Cir. 2002), overruled on other grounds in Desert Palace, Inc. v.
Costa, 539 U.S. 90 (2003).
In Mohr, this court found a reasonable inference between the decision not to
hire Mohr and decisions made by an intermediate supervisor who was not directly
responsible for hiring or firing Mohr. The Mohr decision relied on the precedent that
“[c]ourts [should] look beyond the moment a decision was made in order to determine
whether statements or comments made by other managerial employees played a role
in the ultimate decisionmaking process.” Id. at 641 (quoting Gagnon v. Sprint Corp.,
284 F.3d 839, 848 (8th Cir. 2002)). Even if the ultimate decision to not hire or to fire
was free of discriminatory animus, this court has held that we cannot sterilize a
seemingly objective decision when it is the indirect product of such animus. Id. at
641-42.
As a contract employee, Arraleh’s unofficial superiors were his permanent
coworkers. Their exacting scrutiny and constant complaints regarding Arraleh led
ultimately to the decision not to hire him. As Novak and Waldhauser attested, these
complaints appeared motivated by discriminatory animus toward Arraleh. And it is
reasonable to assume that given Haigh’s testimony, any hope of working alongside
his permanent coworkers was stymied by their attitudes toward blacks and Muslims.
For the purpose of summary judgment review, the involvement of Arraleh’s
coworkers in the decision-making process and their alleged comments about blacks
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and Muslims sufficiently establish a specific link between the decision not to hire and
the alleged discriminatory animus.
Lastly, Arraleh articulates a case for retaliation that should be presented to a
jury. The majority states Arraleh failed to establish a factual question of causation.
A plaintiff may use circumstantial evidence to establish a causal inference by showing
a temporal proximity between the protected conduct and the adverse action. EEOC
v. Kohler Co., 335 F.3d 766, 773-74 (8th Cir. 2003); see also Smith v. Allied Health
Sys., 302 F.3d 827, 833-34 (8th Cir. 2002). Here, there were merely three weeks
between Arraleh’s discrimination complaint and Zurn’s decision not to hire him.
Inconsistent enforcement of employment standards is also relevant to the retaliation
inquiry. Kohler, 335 F.3d at 775-76. The majority accepts Arraleh’s alleged
deficiencies as the true basis for Zurn’s decision not to hire Arraleh. However, these
deficiencies are in dispute. As noted previously, there is strong evidence showing that
Arraleh was unfairly scrutinized by his fellow employees. The record reflects Zurn
knew of, yet did nothing to correct, this skewed standard; when Novak and
Waldhauser reported it to him, he refused to discuss it with Waldhauser, and yet Zurn
never reprimanded Arraleh for this alleged behavior. Finally, Waldhauser gave a
positive evaluation of Arraleh’s work and noted that many of the county’s clients
preferred to work with Arraleh. In short, the idea that Arraleh was not permanently
hired because of his poor work is, at the very least, suspect and disputed. Rather than
allow the district court to be the arbiter of fact in this instance, the material issues of
fact in this claim should be decided by a jury.
For these reasons, I would reverse the grant of summary judgment and remand
to the district court for further proceedings.
______________________________
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