Ranna Muor v. U.S. Bank National Association ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-2757
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Ranna Muor
lllllllllllllllllllll Plaintiff - Appellant
v.
U.S. Bank National Association, doing business as U.S. Bank
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: March 14, 2013
Filed: June 13, 2013
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Before WOLLMAN and COLLOTON, Circuit Judges, and HOLMES,1 District
Judge.
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WOLLMAN, Circuit Judge.
Ranna Muor sued U.S. Bank National Association (U.S. Bank), alleging that
U.S. Bank had discriminated against her based on her race and national origin and
1
The Honorable P.K. Holmes, III, Chief Judge, United States District Court for
the Western District of Arkansas, sitting by designation.
had retaliated against her for opposing the discrimination, in violation of Title VII of
the Civil Rights Act of 1964 (Title VII) and the Minnesota Human Rights Act
(MHRA). The district court2 granted summary judgment in favor of U.S. Bank on
both claims. We affirm.
I. Background
Because we are reviewing a grant of summary judgment, we view the facts in
the light most favorable to Muor. See Onyiah v. St. Cloud State Univ., 684 F.3d 711,
715 (8th Cir. 2012) (standard of review). Muor is a native of Cambodia. She joined
U.S. Bank in 1983 and worked in a variety of positions until 1999, when she became
an International Banking Specialist. Her responsibilities in this position included
advising export letters of credit and sorting mail, among other things.
Bruce Staples managed U.S. Bank’s Import/Export Letters of Credit
Department. He began supervising Muor and Kathleen Czanstkowski in 1999. As
Muor’s supervisor, Staples completed Muor’s performance evaluations from 2000 to
March 2004. Although Staples noted positive aspects of Muor’s performance and
gave her overall ratings of “solid performance,” he consistently indicated that Muor
needed to improve her accuracy and attention to detail, her understanding of her job,
and her ability to complete her work with minimal supervision or assistance. In
approximately 2003 or 2004, Czanstkowski told Staples that Muor could not write or
speak English and that she “should go back to Cambodia where she came from.”
Czanstkowski also told Staples that Muor and another Asian employee had “slanty
eyes.”
2
The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
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In 2005, Barbara Engen began supervising Muor. Engen issued Muor a
favorable performance evaluation in 2005, giving her an overall rating of “solid
performance.” Czanstkowski became Muor’s supervisor in 2006 and completed
Muor’s 2006 and 2007 performance evaluations, giving her an overall rating of “solid
performance” in both evaluations. Czanstkowski noted in Muor’s 2006 evaluation
that she had difficulty with complex transactions and that she needed to give more
attention to detail in order to avoid submitting work with errors. Czanstkowski was
more critical of Muor in the 2007 performance evaluation, commenting that Muor had
demonstrated a skill level below that of her tenure, that Muor needed to stop making
so many errors in her work, and that Muor had yet to learn all the aspects of her job.
Czanstkowski and Engen presented Muor with the 2007 performance
evaluation during a 2008 meeting. Muor told Czanstkowski and Engen that she felt
that she was being discriminated against and wrote in the employee comments section
of the evaluation: “I strongly disagree with this review. It is inconsistent and
contradective [sic].” Engen contacted Sharon Bach, a human resources employee,
and told her about Muor’s complaint of discrimination. Pursuant to Bach’s
instructions, Engen had a follow-up meeting with Muor to discuss the complaint
further. Bach advised Muor that she could submit a rebuttal to the performance
evaluation. Muor never did so.
Engen completed Muor’s 2008 performance evaluation with assistance from
Czanstkowski and Bach. Engen noted in the evaluation’s performance goals section
that in June 2008, U.S. Bank had relieved Muor of her responsibility to advise export
letters of credit and assigned her the less complicated task of documentary collection.
Muor returned to advising export letters of credit in December 2008 when the volume
of credit letters required U.S. Bank to reassign her. Engen gave Muor an overall
rating of “needs improvement,” explaining that Muor continued to perform below
expectations and that she did not fully understand the more complicated aspects of
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her job. Engen noted that Muor’s accuracy had not improved, resulting in too many
errors and wasted company time.
In connection with the 2008 performance evaluation, Czanstkowski composed
a written warning for Muor with assistance from Engen and Bach. The warning listed
examples of errors that Muor had made during 2008 and early 2009 and explained
that Muor was receiving the warning because of her poor performance. The warning
noted that despite her unfavorable 2007 evaluation, Muor had failed to improve her
performance. Under U.S. Bank policy, a written warning precludes an employee from
applying for other positions in the company or receiving a salary increase or bonus
until the employee’s performance improves.
In late February 2009, Engen and Czanstkowski presented Muor with her 2008
performance evaluation and the written warning, following which Muor became ill
and went home. Several days later, Muor dropped off letters at U.S. Bank, accusing
Czanstkowski of discrimination and disputing her written warning and 2008
evaluation. After using a few vacation days, Muor went on short-term disability
leave. Bach attempted to speak with Muor about her letters, but Muor replied that she
did not want to talk about it. In April 2009, Muor filed a charge of discrimination
with the Minneapolis Department of Civil Rights.
Muor returned to work on a part-time basis for two weeks in June 2009. She
testified that during that time Czanstkowski and Engen instructed her to keep the
discrimination complaint confidential. In December 2009, U.S. Bank hired Jody
Brown as an International Banking Specialist.
On January 5, 2010, Bach sent Muor a letter explaining that her absence from
work had been unapproved since July 1, 2009, and that U.S. Bank would fill her
position if she did not return to work by January 18, 2010. The letter encouraged
Muor to contact Bach to discuss possible positions should Muor’s doctor release her
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to work by March 2010. On January 18, 2010, Muor sent Bach an email explaining
that her doctor would not allow her to return to work.
In a February 25, 2010, email, Bach informed Muor that she had received a
February 23, 2010, fax from Muor’s doctor indicating that Muor could return to work
on a part-time basis on March 2, 2010. Bach’s email explained that because Muor
had not returned to work in January, U.S. Bank had filled her position. Bach offered
Muor a position as a part-time teller, which Muor rejected. Muor applied online for
a position with U.S. Bank’s Mortgage Closing Department but did not receive an
interview. On March 17, 2010, U.S. Bank offered Muor a position as an International
Banking Specialist 2, reporting to Mary Hudoba. This position promised the same
base salary as Muor’s former position as an International Banking Specialist 3. In a
March 19, 2010, email to Bach, Muor declined the position, explaining that she could
not “bring [herself] to come back to the company based on their reaction to [her]
discrimination and harassment complaint.” In her deposition, Muor testified that
Hudoba previously had harassed her because she was Cambodian. Although Muor
indicated in her deposition that Hudoba’s treatment of her was part of the reason she
declined the International Banking Specialist 2 position, she neither explained this
to U.S. Bank nor reported Hudoba’s alleged discrimination. Muor resigned her
employment with U.S. Bank in March 2010.
Muor then brought this suit, asserting claims of race and national origin
discrimination and retaliation in violation of Title VII and the MHRA. In granting
summary judgment in favor of U.S. Bank on both claims, the district court determined
that Muor had failed to present a prima facie case of discrimination. Alternatively,
the district court concluded that even if Muor had presented a prima facie case, she
had failed to demonstrate that U.S. Bank’s legitimate reason for the adverse
employment action was a pretext for discrimination. As for Muor’s retaliation claim,
the district court found that Muor had failed to present a prima facie case of
retaliation.
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II. Discussion
We review de novo the district court’s grant of summary judgment. Onyiah,
684 F.3d at 715. “Summary judgment should be granted when—viewing the facts
most favorably to the nonmoving party and giving that party the benefit of all
reasonable inferences—the record shows that there is no genuine issue of material
fact, and the moving party is entitled to judgment as a matter of law.” Id. (quoting
Heacker v. Safeco Ins. Co. of Am., 676 F.3d 724, 726-27 (8th Cir. 2012)).
Muor argues that she has offered sufficient evidence to survive summary
judgment on both her discrimination and retaliation claims. Under the burden-
shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973), Muor has the initial burden of establishing a prima facie case. Torgerson v.
City of Rochester, 643 F.3d 1031, 1046 (8th Cir.) (en banc), cert. denied, 132 S. Ct.
513 (2011); Fercello v. Cnty. of Ramsey, 612 F.3d 1069, 1077 (8th Cir. 2010). If
Muor establishes a prima facie case, then the burden of production shifts to U.S. Bank
to proffer legitimate, non-discriminatory, non-retaliatory reasons for its actions.
Torgerson, 643 F.3d at 1046; Fercello, 612 F.3d at 1078. Once U.S. Bank meets this
burden, Muor must produce evidence sufficient to create a genuine issue of material
fact concerning whether U.S. Bank’s proffered reasons are pretext for discrimination
or retaliation. Torgerson, 643 F.3d at 1046; Fercello, 612 F.3d at 1078. “The same
analysis applies to both MHRA and Title VII claims.” Torgerson, 643 F.3d at 1043.
A. Race and National Origin Discrimination Claim
To establish a prima facie case of discrimination, Muor must show that 1) she
is a member of a protected class; 2) she met U.S. Bank’s legitimate expectations;
3) she suffered an adverse employment action; and 4) the circumstances give rise to
an inference of discrimination. Guimaraes v. SuperValu, Inc., 674 F.3d 962, 973-74
(8th Cir. 2012); Gibson v. Am. Greetings Corp., 670 F.3d 844, 853-54 (8th Cir.
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2012). Even assuming that the written warning constituted an adverse employment
action and that Muor otherwise can establish a prima facie case, Muor has failed to
demonstrate that U.S. Bank’s legitimate, non-discriminatory reason for issuing the
warning—Muor’s poor performance—was pretextual.
Muor argues that U.S. Bank’s rationale for issuing the written warning has no
basis in fact because she was told in June 2008 that she would be evaluated on her
collection duties, not her advising work. See Torgerson, 643 F.3d at 1047 (plaintiff
may demonstrate material issue of fact concerning pretext by showing that employer’s
rationale is unworthy of credence because it has no basis in fact). The evidence she
cites to support her argument is a document from Czanstkowski that explained that
Muor was being reassigned to collection duties and stated: “At times you might be
asked to advise Letters of Credit, but that would be only when staff is not sufficient[.]
You are being evaluated on you [sic] new desk job duties and not that of advising.”
The document, however, does not establish that U.S. Bank would forgo evaluating
Muor on the advising work she had completed prior to her June 2008 change of
duties. Nor does it establish that U.S. Bank would forgo evaluating Muor’s work as
an advisor if she were to be reassigned to advising letters of credit. Accordingly, this
evidence does not create an issue of fact that U.S. Bank’s rationale for issuing the
written warning lacked a basis in fact.
Muor also argues that Czanstkowski’s discriminatory animus more likely than
not motivated the decision to issue the written warning. See id. (plaintiff may
demonstrate material issue of fact concerning pretext by showing that discriminatory
animus more likely motivated employer). Muor contends that Czanstkowski’s
criticism of her performance, as well as Czanstkowski’s alleged discriminatory
statements, constitute evidence of U.S. Bank’s discriminatory animus. Although
Muor’s 2007 and 2008 performance evaluations may have been more exacting than
earlier evaluations, they reiterated the problems that previously had been identified
by Staples. As for Czanstkowski’s statements that Muor and another Asian employee
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had “slanty eyes” and that Muor could not write or speak English and should return
to Cambodia, these statements were made in 2003 or 2004, well before Czanstkowski
became Muor’s supervisor and several years before she issued the written warning.
Moreover, Muor has not set forth evidence showing that the remarks were related to
the decision to issue the written warning. See Simmons v. Océ-USA, Inc., 174 F.3d
913, 916 (8th Cir. 1999) (given the “comprehensive objective evidence” of
employee’s poor job performance, supervisor’s racially offensive comments directed
toward employee but made outside decision making process and two years before
employee’s termination were insufficient evidence of pretext to survive summary
judgment). In light of the lack of evidence showing that discriminatory animus
motivated the adverse employment action and U.S. Bank’s well-documented history
of Muor’s job performance, Czanstkowski’s statements and criticism of Muor’s
performance do not establish a material issue of fact concerning pretext.
Muor further contends that U.S. Bank’s failure to follow its own practices
shows that the decision to issue the written warning was pretextual. See Lake v.
Yellow Transp., Inc., 596 F.3d 871, 874 (8th Cir. 2010) (plaintiff may show pretext
by showing that employer failed to follow its policies). Specifically, she contends
that U.S. Bank deviated from its evaluation process when Engen, along with
Czanstkowski and Bach, prepared her 2008 performance evaluation. Engen testified
that although she does not usually prepare performance evaluations for people in
Muor’s position, she helped prepare Muor’s 2008 evaluation because Czanstkowski
was new to the management position and because U.S. Bank wanted to document its
attempt to accommodate Muor through reassignment. Muor offers no further
evidence of a policy violation, nor does she explain how this purported policy
violation is probative of U.S. Bank’s discriminatory intent.
Finally, Muor argues that Czanstkowski treated non-Asian employees
differently than she treated Muor by not disciplining the non-Asian employees for
their mistakes. “At the pretext stage, ‘the test for determining whether employees are
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similarly situated to a plaintiff is a rigorous one.’” Bone v. G4S Youth Servs., LLC,
686 F.3d 948, 956 (8th Cir. 2012) (quoting Rodgers v. U.S. Bank, N.A., 417 F.3d
845, 853 (8th Cir. 2005), abrogated on other grounds by Torgerson, 643 F.3d 1031).
To succeed with this argument, Muor must show that she and the non-Asian
employees were “similarly situated in all relevant respects.” Id. (quoting Rodgers,
417 F.3d at 853). That is, the employees “used for comparison must have dealt with
the same supervisor, have been subject to the same standards, and engaged in the
same conduct without any mitigating or distinguishing circumstances.” Wierman v.
Casey’s Gen. Stores, 638 F.3d 984, 994 (8th Cir. 2011) (quoting Cherry v. Ritenour
Sch. Dist., 361 F.3d 474, 479 (8th Cir. 2004)). In support of her contention that
Czanstkowski treated her differently, Muor relies on testimony by several non-Asian
employees who worked at U.S. Bank under Czanstkowski’s supervision. Although
the employees discuss making errors in general and not receiving written warnings
for them, Muor has not established that these other employees were similarly situated
to her in all relevant respects. Muor offers no evidence that the comparator
employees made similar errors, made errors as frequently as she, or that their level of
experience was commensurate to hers.
We thus conclude that Muor has not met her burden of demonstrating pretext.
Accordingly, summary judgment in favor of U.S. Bank on Muor’s discrimination
claim was proper.
B. Retaliation Claim
Muor argues that U.S. Bank violated Title VII and the MHRA by retaliating
against her for complaining internally of discrimination and for filing a discrimination
charge with the Minneapolis Department of Civil Rights. To establish a prima facie
case of retaliation, Muor must demonstrate that 1) she engaged in protected activity;
2) she suffered a materially adverse employment action; and 3) the materially adverse
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employment action was causally connected to the protected activity. Guimaraes, 674
F.3d at 978.
Muor contends that the events leading to U.S. Bank’s filling her position and
offering her two other positions constituted an adverse employment action. Even
assuming that Muor engaged in protected activity and suffered an adverse
employment action, she has not shown a causal connection between her complaints
of discrimination and the adverse employment action. Relying on Bassett v. City of
Minneapolis, 211 F.3d 1097 (8th Cir. 2000), abrogated on other grounds by
Torgerson, 643 F.3d 1031, Muor argues that U.S. Bank’s pattern of adverse actions
following her complaints of discrimination demonstrates a causal connection. In
Bassett, we found sufficient evidence of a causal connection to survive summary
judgment where the employer engaged in an escalating pattern of discipline against
the employee in very close temporal proximity to the employee’s complaints of
discrimination. Id. at 1105-06. The pattern of discipline included a negative
performance review, oral reprimands, the initiation of an investigation into the
employee’s conduct that resulted in a suspension without pay, and a recommendation
that the employee be terminated. Id. Further, although the employee was disciplined
for her infractions, her coworkers were not. Id. at 1106.
Unlike the employee in Bassett, Muor did not suffer an escalating pattern of
adverse actions that occurred in close temporal proximity to her complaints of
discrimination in March and April of 2009. The facts that Muor argues demonstrate
a causal connection—the request that she keep her complaint of discrimination
confidential; U.S. Bank’s hiring of Brown as an International Banking Specialist;
Bach’s January 5, 2010, letter; U.S. Bank’s decision to fill her position; U.S. Bank’s
failure to interview her for the mortgage department job; and U.S. Bank’s offer of
“downgraded” positions after filling her position—do not rise to the level of those
recounted in Bassett. Moreover, other than the June 2009 request that Muor keep her
discrimination complaint confidential, the alleged adverse actions that Muor relies on
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began to occur approximately eight months after her protected activity, when U.S.
Bank hired Brown. This gap between the bulk of the alleged adverse actions and
Muor’s protected activity vitiates Muor’s contention that the temporal proximity
gives rise to an inference of retaliatory motive. See Tyler v. Univ. of Ark. Bd. of Trs.,
628 F.3d 980, 986 (8th Cir. 2011) (“As more time passes between the protected
conduct and the retaliatory act, the inference of retaliation becomes weaker and
requires stronger alternate evidence of causation.”). We thus conclude that Muor has
failed to show a causal connection between her protected activity and U.S. Bank’s
alleged adverse employment action.3
III. Conclusion
The judgment is affirmed.
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3
Muor also argues that U.S. Bank constructively discharged her and that this
constitutes an adverse employment action, but she has failed to create a genuine issue
of material fact concerning whether there was a causal connection between her
alleged constructive discharge and her protected activity.
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