Elnashar v. Speedway SuperAmerica, LLC ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-3861
___________
Abdel Elnashar, *
*
Plaintiff - Appellant, *
*
v. *
*
Speedway SuperAmerica, LLC, * Appeal from the United States
* District Court for the
Defendant - Appellee, * District of Minnesota.
*
United States Department of Justice; *
Federal Bureau of Investigation, *
Minneapolis Office, *
*
Interested Parties - Appellees. *
___________
Submitted: December 13, 2006
Filed: April 26, 2007
___________
Before LOKEN, Chief Judge, JOHN R. GIBSON, and MURPHY, Circuit Judges.
___________
JOHN R. GIBSON, Circuit Judge.
This appeal is the culmination of a four-year span of litigation involving Abdel
Elnashar, his former employer Speedway SuperAmerica, the FBI, and the Department
of Justice. The heart of the litigation is Elnashar's claim that SuperAmerica
discriminated against him on the basis of his Arabic race in the wake of the September
11, 2001, terror attacks. Throughout the litigation, he has planned to prove
SuperAmerica's discriminatory intent by seeking certain confidential FBI files, which
he believes show that a SuperAmerica employee falsely informed the FBI that he was
engaged in bomb-making activities. The district court1 denied his motion to compel
the FBI to produce the files, denied his motion for a continuance, and granted
summary judgment to SuperAmerica on the employment discrimination claims. We
affirm.
I.
Elnashar is an Arab-American, born in Egypt, and is a Muslim. He was hired
as a manager trainee at the Bloomington, Minnesota, Speedway SuperAmerica store
in the summer of 2001. Manager trainees may have the opportunity to become store
managers after they complete various performance goals, and Elnashar hoped to
become a SuperAmerica store manager. In September 2001, he was transferred to the
Rice Street store in St. Paul, to assist a new manager who had recently been promoted
from a manager trainee position. In November, he requested to be transferred to a
store where he could work with a more experienced manager. The district manager,
Mark Erickson, transferred Elnashar to the Seventh Street store in St. Paul, where he
worked with store manager Anne Stehr and associate manager Jean Schneider. While
he was at the Seventh Street store, Elnashar's position changed from manager trainee
to assistant manager trainee. His corporate allotment of manager trainee hours had run
out and, based on reports from Elnashar's supervisors at the Bloomington and Rice
Street stores, Erickson did not believe Elnashar was ready for promotion to a manager
position at that time. In addition, Elnashar's scheduled hours were cut from full time
to sixteen hours per week in early 2002. SuperAmerica attributes the reduction to a
company policy of reducing employees' hours in the slow post-holiday season, as well
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
-2-
as Elnashar's expressed desire to work fewer hours, but Elnashar denies requesting a
reduction in hours.
Elnashar also experienced interpersonal difficulties with associate manager
Schneider at the Seventh Street store. His work was not as focused on managerial
training as he would have liked; instead, Schneider asked him to perform tasks a
cashier could do, such as mopping the floor, and belittled him in front of coworkers
and customers. In addition, Schneider asked him if he had a harem, how many wives
he had as a Muslim, and whether he rode camels around everywhere in Egypt.
Elnashar also reports that Schneider made unwelcome body contact with him when
they were working together in close quarters. According to Schneider, Elnashar was
rude to her and others, refused to perform certain tasks and work certain shifts, and
walked out of his shifts at least twice after losing his temper during arguments with
her. In March 2002, after one employee told Schneider that she felt Elnashar was
harassing her because of her race, Schneider reported the complaint to Erickson, who
issued Elnashar a written warning for refusing to perform shift duties, leaving his
shift, and creating a hostile work environment. Erickson asked Elnashar to sign the
warning, but he protested and left work. He did not return to work in the following
days but waited for Erickson to “call [him] and set things straight.” That call never
came, and SuperAmerica ultimately classified Elnashar as having voluntarily resigned
by abandoning his job.
Shortly after these events, in the spring of 2002, FBI agents visited Elnashar's
former supervisors at the SuperAmerica stores to inquire about his address and
background as part of its PENTTBOM investigation into the September 11, 2001,
terror attacks. Schneider and Stehr were incorrect in some of the background
information they gave the FBI, particularly regarding where Elnashar grew up. In
April 2002, two FBI agents came to Elnashar's home, questioned him about whether
he was engaged in making bombs, and searched his house. They found nothing
suspicious and told him that the investigation would be closed. According to
-3-
Elnashar, one of the agents, Myron Umbel, told him that someone from Speedway
SuperAmerica had called the FBI to report that Elnashar was making bombs.
Elnashar filed suit against SuperAmerica for employment discrimination on
October 10, 2002. He argued that SuperAmerica failed to promote him, demoted him,
and constructively discharged him because of his race, in violation of 42 U.S.C. §§
1981, 1981a, and 2000e-2000e(17).2 On the basis of Agent Umbel's tip that a
SuperAmerica employee was the informant who falsely told the FBI he was making
bombs, Elnashar embarked on a quest to obtain proof of the informant's identity to
show SuperAmerica's racial animus against Arabs. Elnashar's various attempts to
obtain this information all have been unsuccessful, as recounted below in the
convoluted procedural history of this case.
Elnashar first requested by letter in February 2003 that the FBI send him the
records of his investigation. The FBI treated this as a request for access under the
Freedom of Information Act (FOIA) and the Privacy Act and denied it, invoking the
FOIA law enforcement exemption and Privacy Act protection for the informant's
identity. Elnashar initially did not seek administrative appeal of this decision. Rather,
he served a subpoena on the FBI demanding the records and Agent Umbel's testimony
and filed a motion to compel production. The magistrate3 denied this motion because
Elnashar had not exhausted his administrative remedies, i.e. the Department of Justice
procedures formulated in response to United States ex rel. Touhy v. Ragen, 340 U.S.
462 (1951), which establish a chain of command for determining whether Department
2
Elnashar also initially alleged national origin and religious discrimination, as
well as violations of Minnesota employment statutes, but he abandoned the national
origin and religious discrimination claims in the district court and abandoned his state
law claims by failing to raise them in his briefs to this Court. See Griffith v. City of
Des Moines, 387 F.3d 733, 739 (8th Cir. 2004).
3
The Honorable Janie S. Mayeron, United States Magistrate Judge for the
District of Minnesota.
-4-
of Justice employees will disclose confidential material, id. at 468. After this ruling,
Elnashar followed the Touhy procedures and resubmitted his request to the FBI. He
obtained a redacted copy of his FBI record, but the FBI still refused to disclose the
informant's identity. Elnashar served a Rule 30(b)(6) subpoena for the files,
specifically demanding to learn the identity of the informant and whether he or she
was employed by SuperAmerica, and he moved the court to compel production. The
FBI objected, citing several grounds including the common law confidential informant
privilege and Touhy regulation 28 C.F.R. § 16.26(b)(4). The magistrate reviewed the
unredacted files in camera and ultimately denied Elnashar's motion to compel in her
Order of September 7, 2004, concluding that the FBI did not abuse its discretion in
refusing to disclose the material on the basis of the confidential informant privilege
where the files showed that the informant had been assured confidentiality and
Elnashar's need for the informant's identity was speculative. The magistrate also
concluded that the Touhy regulations were valid. The district court affirmed on
October 29, 2004. Elnashar immediately appealed that decision to this Court, and we
held that we lacked jurisdiction to rule on the interlocutory order.4 Elnashar v.
Speedway SuperAmerica, LLC, 446 F.3d 796 (8th Cir. 2006).
While his discovery motions were pending in his suit against SuperAmerica,
Elnashar also filed a separate lawsuit against the Department of Justice, the FBI,
Agent Umbel, and other unknown FBI agents seeking expungement of his record,
access to his record, and damages under the Privacy Act, FOIA, and several
constitutional amendments. The district court granted summary judgment to the
defendants. This Court affirmed. Elnashar v. United States Dep't of Justice, 446 F.3d
792 (8th Cir. 2006).
4
Now that the district court has granted summary judgment to SuperAmerica,
the denial of Elnashar's motion to compel is properly before us.
-5-
Elnashar's inability to obtain the FBI files and to depose Agent Umbel also
prompted him to request a stay of SuperAmerica's motion for summary judgment
while his appeal of the interlocutory order was pending. The district court denied this
request, treating it as a motion for a continuance under Federal Rule of Procedure
56(f). The district court found that Elnashar had not shown good cause for his failure
to depose Agent Umbel during the two years his suit had been pending and that he had
not shown that the information was likely to raise a genuine issue of material fact on
his discrimination claims.
With the discovery motions resolved, the district court granted SuperAmerica's
motion for summary judgment on Elnashar's substantive race discrimination claims
on September 22, 2005, finding that many of the events Elnashar experienced at
SuperAmerica were not adverse employment actions, Elnashar failed to show that
SuperAmerica's legitimate nondiscriminatory reasons for its actions were pretextual,
and Elnashar's experiences did not rise to the level of actionable harassment on his
hostile environment claim.5
5
Elnashar challenges the district court's analysis of his race discrimination
claims only in his reply brief, focusing entirely on the continuance, discovery, FOIA,
and Privacy Act issues in his opening brief. We have discretion to refuse to consider
issues an appellant fails to raise in his or her initial brief, but we will review the grant
of summary judgment to SuperAmerica on the discrimination claims in this case
where SuperAmerica has fully addressed those claims in its brief and Elnashar's
opening brief states that he appeals the grant of summary judgment. See United States
v. Head, 340 F.3d 628, 631 n.4 (8th Cir. 2003).
-6-
II.
A. Discovery Motions
Elnashar appeals all orders denying his attempts to learn the identity of the
informant whose tip prompted the FBI to investigate him. These orders include the
district court's order denying his motion to compel the FBI to produce the relevant
files and Agent Umbel's testimony and its denial of his motion for a continuance. In
addition, Elnashar expends substantial efforts in his brief challenging the district
court's grant of summary judgment to the Department of Justice and FBI on his FOIA
and Privacy Act claims. We already have reviewed and affirmed the district court's
judgment on these claims, 446 F.3d at 793, which Elnashar raised in a separate lawsuit
and which are not part of the final order from which he now appeals in his suit against
SuperAmerica. As we cannot revisit Elnashar's FOIA and Privacy Act claims in this
appeal, our review is limited to the October 29, 2004, denial of his motion to compel
and the February 15, 2005, denial of his motion for a continuance.
1. Motion to compel
We generally review the denial of a motion to compel production of evidence
for gross abuse of discretion. Toghiyany v. AmeriGas Propane, Inc., 309 F.3d 1088,
1093 (8th Cir. 2002). Even under the ordinary abuse of discretion standard we have
applied in criminal cases to a district court's refusal to require disclosure of a
confidential informant's identity, see United States v. Crenshaw, 359 F.3d 977, 1005
(8th Cir. 2004), Elnashar's appeal fails.
The district court summarily affirmed the magistrate's order denying Elnashar's
motion to compel the FBI to disclose the informant's identity. In explaining why
Elnashar was not entitled to this information, the magistrate accepted the FBI's
contention that the informant's identity was privileged under Roviaro v. United States,
-7-
353 U.S. 53 (1957). The Touhy regulations under which the FBI refused to disclose
the informant's identity track the common law informant's privilege. 28 C.F.R. §
16.26(b)(4). To override the informant's privilege, Elnashar would have to show that
he had a clear need for the informant's identity, weighed against the government's
interest in protecting confidential informants' identities. United States v. Lapsley, 334
F.3d 762, 763-64 (8th Cir. 2003). An individual seeking disclosure has a need for the
informant's identity where it would be material to his case; that is, there must be a
reasonable probability that the evidence would change the outcome. Id. at 764. After
reviewing the unredacted FBI files in camera, the magistrate concluded that Elnashar
had not met his burden. She reasoned that the materiality of the information was
minimal, and thus Elnashar's need for the information was weak, because the
informant did not allege that Elnashar was making bombs or was engaged in other
terroristic activities. Meanwhile, the government had a strong interest in maintaining
the confidentiality of informants' identities to encourage individuals to provide
information to law enforcement without fear of reprisal. As the magistrate observed,
the government's interest is more likely to prevail in civil cases like Elnashar's,
because the countervailing constitutional guarantees assured to criminal defendants
are not present. See Lawmaster v. United States, 993 F.2d 773, 774-75 (10th Cir.
1993); see also Dole v. Local 1942, Int'l Bhd. of Elec. Workers, 870 F.2d 368, 372
(7th Cir. 1989) (interest of party seeking to discover informant's identity must be
“credible”). Finally, the magistrate rejected Elnashar's invitation to invalidate the
Touhy regulations.
We see no abuse of discretion, gross or otherwise, in the district court's decision
to affirm the magistrate's denial of Elnashar's motion to compel. Elnashar argues that
the magistrate incorrectly placed the burden on him to show need for the information,
where she first should have required the FBI to show that the informant's identity was
indeed privileged by proving that the informant had been promised confidentiality,
citing Department of Justice v. Landano, 508 U.S. 165 (1993). While Landano held
that the FBI is not entitled to a presumption that all informants are confidential for
-8-
purposes of FOIA exemptions, id. at 181, the magistrate afforded the FBI no such
presumption in ruling on this Fed. R. Civ. P. 45 motion to compel, and the evidence
supports her conclusion that the informant was confidential. The in camera review of
the FBI files showed that the government intended to protect the informant's identity,
and even the redacted documentation of the informant's interview contains a “protect
identity” notation, which, according to FBI Special Agent Nancy Schuster, means the
informant provided information to the FBI only after receiving assurances that the FBI
would protect his or her identity. This is sufficient to support application of the
confidential informant's privilege. Next, Elnashar argues that the court gave undue
weight to the government's interest in protecting informants' identities at the expense
of his interest in obtaining evidence that might have proven the intent element of his
discrimination claims. Contrary to Elnashar's argument, the magistrate fully
considered his need for the evidence and found it to be speculative. Even if disclosure
of the informant's identity would confirm Elnashar's suspicion that the informant was
a SuperAmerica employee, he still would have to show that the informant's statements
showed anti-Arab animus and connect that discriminatory intent to adverse
employment actions at SuperAmerica. The magistrate's in camera review revealed
that the informant did not accuse Elnashar of making bombs or other terroristic
activities, substantially weakening his theory that the informant falsely accused him
of being a terrorist and that this showed SuperAmerica's animus against Arabs in the
wake of September 11. Thus, the magistrate correctly found that Elnashar had no
clear need for the informant's identity.
We also reject Elnashar's argument that the district court abused its discretion
by upholding the Touhy regulations, which enable the Attorney General to prevent
employees from disclosing information that “would reveal a confidential source or
informant,” 28 C.F.R. § 16.26(b)(4). Elnashar contends that these regulations exceed
the agency's authority, because the enabling act does not authorize the DOJ to create
substantive regulations that “withhold[] information from the public or limit[] the
availability of records to the public,” 5 U.S.C. § 301. Elnashar's contention is
-9-
misplaced. While the language he cites does constrain the Attorney General from
claiming an executive privilege on the basis of 5 U.S.C. § 301, see Kwan Fai Mak v.
FBI, 252 F.3d 1089, 1092 (9th Cir. 2001), it does not purport to eliminate specific
claims of privilege that exist under the common law. The regulation the FBI invokes
in this case permissibly tracks the common law informant's privilege, 45 Fed. Reg.
83,208, 83,210 (Dec. 18, 1980) (Touhy regulations “identify several widely
acknowledged areas of privilege or legally prohibited disclosure”). We affirm the
district court's denial of Elnashar's motion to compel.
2. Motion for continuance
We review the denial of a motion for continuance under Fed. R. Civ. P. 56(f)
for abuse of discretion. In re Temporomandibular Joint (TMJ) Implants Prods. Liab.
Litig., 113 F.3d 1484, 1489-90 (8th Cir. 1997). To obtain a continuance under Rule
56(f), the movant must show “good reason for being unable to present facts essential
to its response.” Alexander v. Pathfinder, Inc., 189 F.3d 735, 744 (8th Cir. 1999). In
an affidavit in support of his motion for a continuance, Elnashar's attorney alleged that
he needed more time either to depose Agent Umbel or obtain the unredacted FBI files
containing the informant's identity to show SuperAmerica's racially discriminatory
intent. The district court held that this affidavit did not show good reason for a
continuance, because it did not explain why Elnashar needed this evidence to survive
summary judgment and because the court already had granted Elnashar two
continuances during the two years that the lawsuit had been pending. The district
court did not abuse its discretion in refusing to give Elnashar more time to obtain
competent proof of the informant's identity. As discussed, Elnashar only speculated
that the FBI files contained a smoking gun that would prove SuperAmerica's
discriminatory animus. The file may have nothing to do with this case at all, so we
cannot say that the informant's identity was “essential to [Elnashar's] response” to
SuperAmerica's motion for summary judgment. See Alexander, 189 F.3d at 744. In
addition, Elnashar had not made good use of the two continuances he had received
-10-
already; he served only one subpoena, which was returned undelivered, to locate and
depose Agent Umbel. Elnashar blames the court and the FBI for his inability to locate
Agent Umbel for deposition, pointing out that Umbel had been transferred and the
court would not compel the FBI to give him Umbel's updated contact information.
Elnashar has not shown that he made any effort, however, to obtain this information
from other potential sources. Moreover, the FBI refused to facilitate Agent Umbel's
deposition for the same valid reason it refused to provide Elnashar the unredacted file
of his investigation--Elnashar's objective was to learn the informant's identity, which
was a privileged matter. A continuance will not help Elnashar, because he does not
have the right to compel Umbel to identify the witness. In sum, Elnashar showed no
good reason to grant a continuance, and the district court correctly denied the motion.
B. Discrimination Claims
Elnashar's substantive claims alleged that SuperAmerica discriminated against
him because of his race by failing to promote him to the position of manager;
demoting him in terms of work location, job title, and hours; reprimanding him;
constructively discharging him; and subjecting him to a hostile work environment.
The district court granted summary judgment to SuperAmerica on all claims. Mindful
that summary judgment should be granted in employment discrimination cases only
if the evidence could not support any reasonable inference of discrimination, we
review the district court's grant of summary judgment de novo, affirming if there is
no genuine issue of material fact and SuperAmerica is entitled to judgment as a matter
of law. Peterson v. Scott County, 406 F.3d 515, 520 (8th Cir. 2005); Fed. R. Civ. P.
56(c). We view all the evidence in the light most favorable to the non-moving party,
Elnashar, and draw all reasonable inferences in his favor. Peterson, 406 F.3d at 520.
Observing that both parties agreed that McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), provided the appropriate framework for analysis, the district court
analyzed Elnashar's employment discrimination claims under this familiar standard.
-11-
In his reply brief, however, Elnashar contends that his is a “mixed-motive” case and
that the district court should have modified the McDonnell Douglas standard in light
of Desert Palace, Inc. v. Costa, 539 U.S. 90, 101-02 (2003), allowing him to survive
summary judgment if he raised a genuine issue of material fact that either
SuperAmerica's asserted reasons for its decisions were pretextual or that unlawful
discrimination was a motivating factor in its decisions. As we have held, however,
Desert Palace is entirely consistent with our precedent under which a plaintiff survives
summary judgment either by providing direct evidence of discrimination or by
creating an inference of discrimination through the McDonnell Douglas framework.
Peterson, 406 F.3d at 521; Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir.
2004). Elnashar has no direct evidence of discrimination. He points to associate
manager Schneider's inquiries into whether he had a harem and rode camels in Egypt,
but her comments do not raise a genuine issue of fact about whether unlawful
discrimination was a motivating factor in SuperAmerica's decisions; her questions had
no connection to the decisional process and are better characterized as stray remarks.
See Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1157 (8th Cir. 1999).
Thus, the McDonnell Douglas framework is the appropriate mode of analysis for
Elnashar's claims, as the district court concluded.
Under the McDonnell Douglas framework, the plaintiff bears the initial burden
of making out a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at
802. To establish a prima facie case, the plaintiff must show that: (1) he belonged to
a protected group; (2) he was qualified for the position in question; (3) he was
subjected to an adverse employment action; and (4) the adverse action occurred under
circumstances giving rise to an inference of discrimination. Tatum v. City of
Berkeley, 408 F.3d 543, 551 (8th Cir. 2005). Once the plaintiff carries his or her
burden to make out a prima facie case of discrimination, the burden shifts to the
defendant employer to articulate a legitimate, nondiscriminatory reason for its action.
Peterson, 406 F.3d at 521. If the defendant satisfies its burden, then the plaintiff must
show that the nondiscriminatory reason was a pretext for discrimination. Id.-12-
1. Failure to promote
The district court rejected Elnashar's claim that SuperAmerica discriminated
against him on the basis of his race when it promoted a white manager trainee instead
of him to the position of manager at the Rice Street store. The court concluded that
SuperAmerica asserted legitimate, nondiscriminatory reasons for not promoting
Elnashar to manager because the individual it promoted had more relevant experience
than Elnashar and Erickson had concerns that Elnashar was insubordinate. See Pope
v. ESA Servs., Inc., 406 F.3d 1001, 1007 (8th Cir. 2005). It rejected all his theories
of pretext. Elnashar does not contest the district court's judgment on his failure to
promote claim in either of his briefs; thus we affirm on this issue.
2. Demotion
Elnashar alleges that SuperAmerica discriminated against him on the basis of
his race by demoting him. Elnashar argues that his transfer to the Seventh Street store,
change in job title from manager trainee to assistant manager trainee, and reduction
in hours each amounted to a demotion. The district court held that the work location
transfer was not an adverse employment action, and thus Elnashar failed to establish
a prima facie case on that incident, because it did not entail a significant change in
working conditions or a diminution in Elnashar's title, salary, or benefits. See Zhuang
v. Datacard Corp., 414 F.3d 849, 854 (8th Cir. 2005). Indeed, there is no dispute that
Elnashar wanted to be transferred to a store where he could work with a more
experienced manager than the recently promoted manager at the Rice Street store, and
Stehr was an experienced manager at the Seventh Street store. Elnashar was trained
to perform new tasks at the Seventh Street store; his rate of pay did not change, and
none of the evidence suggests his change in title, which occurred around two months
after the transfer, had anything to do with the transfer. Thus, we affirm the district
court's conclusion that Elnashar cannot make out a prima facie case that the transfer
was an adverse employment action.
-13-
Elnashar's job title reclassification from manager trainee to assistant manager
trainee, on the other hand, was an adverse employment action. SuperAmerica district
manager Erickson admitted as much in his deposition. However, SuperAmerica
offered legitimate, nondiscriminatory reasons for the reclassification--Elnashar's
allotment of manager trainee hours had expired, and Erickson did not feel Elnashar
was ready for promotion to manager because his supervisors had reported incidents
of insubordination. On the issue of Elnashar's reduction in hours, SuperAmerica does
not dispute that Elnashar established a prima facie case, but it offers its company
policy of making store-wide reductions as a legitimate, nondiscriminatory reason for
reducing Elnashar's hours.
Elnashar argues that SuperAmerica's reasons for changing his title and reducing
his hours are pretextual, on several theories. First, he argues that certain statements
by his coworkers show SuperAmerica's underlying discriminatory intent. According
to Elnashar, Schneider inquired whether he had a harem and rode camels in Egypt.
Elnashar has not connected these comments to Schneider's decisions about his
schedule and has not shown that any other decisionmaker at SuperAmerica endorsed
them, however, so the district court was correct to characterize them as “stray remarks
in the workplace.” Breeding, 164 F.3d at 1157; see also Twymon v. Wells Fargo &
Co., 462 F.3d 925, 934 (8th Cir. 2006) (decisionmakers' racially offensive statements
not related to decisional process were stray comments, not strong evidence of
discriminatory intent). We observe that Elnashar's counsel conceded as much at a
motions hearing before the district court. Elnashar also finds evidence of
discriminatory intent where Stehr and Schneider provided inaccurate information
about his background to the FBI. He has no evidence, however, to contradict their
deposition testimony that they honestly responded to the agents' questions to the best
of their knowledge about Elnashar. As the district court explained, that the statements
were incorrect does not give rise to a reasonable inference that Stehr and Schneider
took adverse employment actions on account of Elnashar's race; the evidence indicates
-14-
these statements were simply innocent mistakes and were neither significant nor
incriminating.
Elnashar also contends that SuperAmerica has manufactured its asserted reasons
for his demotions after the fact to cover up a conspiracy to fire him. He doubts that
SuperAmerica really had an hours-reduction policy in early 2002, pointing out that
Stehr and Schneider never cut their hours and that Erickson does not remember
ordering a district-wide reduction in hours. He further contends that the managers'
testimony that Erickson ordered the demotions is inconsistent with company records
because someone other than Erickson signed the “Employee Data Change Forms” that
changed his title and cut his hours, and no one had Elnashar sign the forms as required
by SuperAmerica policy. None of these arguments raises a genuine issue of material
fact to support Elnashar's theory of pretext. That Stehr and Schneider's hours were not
cut is not evidence of pretext, because Elnashar was not similarly situated to Stehr and
Schneider, who outranked him. Erickson's inability to recall the hours-reduction
policy does not dispute Stehr and Schneider's testimony that the policy existed.
Finally, SuperAmerica's failure to comply with its communication policies in
changing Elnashar's status, and that someone other than Erickson signed the formal
documentation of those changes, may suggest that SuperAmerica was disorganized,
but not that its asserted reasons for demoting Elnashar are pretext for a conspiracy to
fire him on account of his race.
Elnashar also urged the district court to find pretext on the basis of his evidence
that a SuperAmerica employee provided a false tip about him to the FBI. The district
court found this theory to be totally unsubstantiated. As all of Elnashar's attempts to
compel disclosure of the informant's identity had failed, his only evidence of this
theory was his testimony that Agent Umbel told him that a SuperAmerica employee
called the FBI to report that he was making bombs. The district court correctly
concluded that this evidence was inadmissible hearsay and thus could not raise a
genuine issue of material fact. Elnashar argues that the statement should have been
-15-
admitted through exceptions to the hearsay rule in Federal Rules of Evidence
804(b)(3) and 807. Like the district court, we reject this argument. First, Agent
Umbel was not “unavailable” as required for the Rule 804(b)(3) statement against
interest exception. To show that a witness is unavailable, the proponent of the hearsay
statement must attempt in good faith to locate and subpoena the witness. United
States v. Harbin, 112 F.3d 974, 975 (8th Cir. 1997). Elnashar served one subpoena
on Agent Umbel, which was returned undelivered, and he made no other efforts to
locate Umbel apart from his motion to compel the FBI to disclose Umbel's location.
Nor has Elnashar shown the statement had circumstantial guarantees of
trustworthiness as required for the Rule 807 residual exception. Because he lacks
competent evidence that a SuperAmerica decision-maker falsely tipped the FBI that
Elnashar was making bombs, this theory of pretext fails as a matter of law.
3. Reprimand
Elnashar also argues that SuperAmerica discriminated against him when
Erickson issued him a written reprimand. Like the district court, we reject this theory
because the reprimand was not an adverse employment action. A reprimand is an
adverse employment action only when the employer uses it as a basis for changing the
terms or conditions of the employee's job for the worse. Singletary v. Mo. Dep't of
Corrections, 423 F.3d 886, 892 n.5 (8th Cir. 2005); Burchett v. Target Corp., 340 F.3d
510, 518-19 (8th Cir. 2003). The reprimand did not affect Elnashar's terms and
conditions of employment, so he cannot make out a prima facie case on this claim.
-16-
4. Constructive discharge
Elnashar resigned his position at SuperAmerica after the reprimand but
characterizes this as a constructive discharge, pointing to Schneider's poor treatment
of him and to Erickson and Stehr's inadequate consideration of his side of the story.
Constructive discharge occurs when an employer deliberately creates “intolerable
working conditions with the intention of forcing the employee to quit” and the
employee does quit. Breeding, 164 F.3d at 1159 (internal quotation marks and
citation omitted). To show he was constructively discharged, Elnashar would have
to show that a reasonable person in his situation would find the conditions intolerable
and that SuperAmerica intended to force him to quit. Tatum v. Ark. Dep't of Health,
411 F.3d 955, 960 (8th Cir. 2005). Elnashar has not met either requirement. He
argues that he had no choice but to quit because he reasonably believed there was no
chance for fair treatment, Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 574 (8th
Cir. 1997), but the facts simply do not support this claim. Elnashar never reported the
details of his problems with Schneider to Stehr, but only requested that she train him
instead of having Schneider do it, and he was neither persistent nor patient in his
efforts to discuss the situation with Erickson. Moreover, when Schneider alleged that
Elnashar racially harassed his coworker, Erickson investigated and found that
Elnashar had done nothing wrong. Under these circumstances, it was not reasonable
for Elnashar to believe he had no chance for fair treatment at SuperAmerica. The
evidence shows only that he felt unfairly criticized and that his work conditions,
particularly his encounters with Schneider, were unpleasant to him. Such conditions
are not “so intolerable as to compel a reasonable person to resign,” Breeding, 164 F.3d
at 1160 (internal quotation marks omitted), and Elnashar's constructive discharge
claim fails.
-17-
5. Hostile work environment
Finally, Elnashar claims that SuperAmerica subjected him to a hostile work
environment at the Seventh Street store, again primarily because of Schneider's
conduct. To establish this claim, Elnashar would have to show that: (1) he belongs
to a protected group; (2) he was subjected to unwelcome harassment; (3) a causal
nexus exists between the harassment and his group membership; and (4) the
harassment affected a term, condition, or privilege of his employment. Gordon v.
Schafer Contracting Co., 469 F.3d 1191, 1194-95 (8th Cir. 2006). The district court
concluded that Schneider's inquiries about harems and riding camels, as well as
Elnashar's allegation that she made unwelcome physical contact with him at work, did
not rise to the level of actionable harassment because they were isolated incidents that
were not severe or pervasive. The district court additionally concluded that
SuperAmerica was entitled to dismissal of the hostile environment claim under
Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998), because it had harassment
policies in place and Elnashar failed to report Schneider's alleged harassment.
Because we agree that Elnashar did not bring forth facts showing that the working
conditions at the Seventh Street store were so severe or pervasive that they rose to the
level of harassment, we affirm the grant of summary judgment to SuperAmerica on
Elnashar's hostile environment claim without reaching his argument that
SuperAmerica was not entitled to invoke the Faragher defense.
III.
Because the evidence cannot support any reasonable inference of
discrimination, SuperAmerica was entitled to summary judgment. In addition, the
district court did not abuse its discretion in refusing to grant a continuance and compel
disclosure of additional evidence that Elnashar only speculated would save his case.
Thus, we affirm the judgment of the district court in all respects.
______________________________
-18-