Karen Duncan v. Delta Consol. Ind.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2257
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Karen Duncan, *
*
Plaintiff - Appellant, * Appeal from the United States
* District Court for the
v. * Eastern District of Arkansas.
*
Delta Consolidated Industries, Inc. *
*
Defendant - Appellee. *
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Submitted: December 15, 2003
Filed: June 25, 2004
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Before MELLOY, BEAM, and COLLOTON, Circuit Judges.
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MELLOY, Circuit Judge.
In this appeal, the plaintiff-appellant, Karen Duncan, challenges the district
court’s entry of summary judgment in favor of her employer, Delta Consolidated
Industries, Inc. In her Title VII suit, Ms. Duncan claims that she was sexually
harassed and retaliated against for complaining about the harassment. The district
court1 found that she had failed to exhaust her administrative remedies on her sexual
harassment claim and that she failed to establish a prima facie case of retaliation. We
affirm.
1
The Honorable George Howard, Jr., United States District Judge for the
Eastern District of Arkansas.
I. FACTUAL BACKGROUND2
Ms. Duncan began working for Delta in June of 2000. Delta manufactures tool
boxes, and Ms. Duncan, although on disability leave, is employed as a turret operator.
During the relevant time period, she worked alongside fellow turret operator, Kelly
Ring. Her team leader was Jerry Prunty. Mr. Prunty assigned work to the turret
operators but had no authority to discipline, hire, or fire Delta employees. Shortly
after Ms. Duncan began working second shift, Mr. Prunty began harassing her. He
directed lewd, vulgar language toward Ms. Duncan and inappropriately touched her.
In late March 2001, Mr. Prunty pinned Ms. Duncan against her turret machine and
touched her genitalia. She did not complain to Delta management or the human
resources department about this incident or about Mr. Prunty’s previous conduct until
April 5, 2001. Delta immediately suspended Mr. Prunty pending the results of an
investigation into Ms. Duncan’s complaint. Mr. Ring corroborated her allegations,
and Delta terminated Mr. Prunty’s employment on April 9, 2001.
Ms. Duncan alleges that Delta retaliated against her for complaining about Mr.
Prunty’s churlish conduct, which resulted in his termination. According to Ms.
Duncan, the most egregious retaliatory conduct consisted of assigning her more
difficult and physically-demanding work. Namely, she contends that, prior to her
sexual harassment complaint, she worked with parts that weighed up to thirty-five
pounds. After she lodged the complaint, she asserts that she was assigned parts that
weighed upwards of sixty pounds and were, in fact, too large for her machine. As a
result of the heavier work, Ms. Duncan sustained serious injuries that required
surgery. At the time of the hearing on Delta’s summary judgment motion, Ms.
Duncan had been released to return to work but was receiving short-term disability
2
Pursuant to Federal Rule of Civil Procedure 56(c), we recite these facts in the
light most favorable to Ms. Duncan as the non-moving party. See, e.g., Cravens v.
Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1016 (8th Cir. 2000)
(construing the record in the light most favorable to the non-moving party).
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benefits because her medical restrictions precluded her from returning to her turret
operator position.
Assigning her heavier work is not the only retaliatory conduct that Ms. Duncan
alleges resulted from her complaint against Mr. Prunty. In addition, she alleges that
the second shift turret operators’ work schedule was changed because of her
complaint. She attempts to portray this action as retaliatory because Delta
management knew that she had previously voiced objection to a proposed schedule
change. She contends, moreover, that she was given “points” for tardiness and
absenteeism in retaliation for her complaint but admits that Delta ultimately removed
these points from her record once they were brought to Delta’s attention. Finally, Ms.
Duncan asserts that Mr. Ring has also been retaliated against for testifying on her
behalf during the investigation of these claims.
II. PROCEDURAL HISTORY
Ms. Duncan filed a discrimination charge with the EEOC on September 4,
2001. The standard EEOC charge form instructs complainants to check the
appropriate box or boxes for the cause of discrimination alleged. Ms. Duncan
checked the box for “retaliation.” In the space provided for “particulars,” Ms.
Duncan described the complained-of conduct:
I have been employed with the above named company since June 2000.
In October 2000 I became a Turret Operator on second shift. On April
5, 2001 I reported my supervisor for sexual harassment. An
investigation was conducted and the supervisor was terminated. Since
reporting the sexual harassment I have been subjected to different terms
and conditions of employment in that I am being deined [sic] personal
time and given points each time I miss, which has resulted in me
acquiring 3 ½ points with only a ½ point left before termination. I have
also been harassed and intimidated by the Night Shift Aluminum
Supervisor, who was friends with the supervisor that was fired, in that
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he has taken over my time card and monitors my every movement. He
also has given me the most difficult tasks to complete.
I have been given no reason why I am not allowed to use my personal
time or why I am being harassed and intimidated.
I believe that I am being subjected to different terms and conditions of
employment in that I am being denied personal time, harassed and
intimidated in retaliation for complaining of sexual harassment in
violation of Title VII of the Civil Rights Act of 1994 [sic], as amended.
Ms. Duncan received a right-to-sue letter and filed a lawsuit in federal district
court on March 22, 2002, alleging both retaliation and sexual harassment in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
In response, Delta filed a motion for summary judgment in which it argued that Ms.
Duncan was precluded from pursuing a sexual harassment claim because she failed
to exhaust her administrative remedies; that she unreasonably failed to avail herself
of Delta’s sexual harassment policy; that she failed to prove she suffered an adverse
employment action; and that she failed to show a causal connection between her
protected conduct and the alleged adverse actions. The district court granted Delta’s
motion on the ground that Ms. Duncan did not exhaust her sexual harassment claim
and that she failed to show that she suffered a tangible employment action.
III. DISCUSSION
We review a district court’s dismissal on summary judgment de novo. See
Shempert v. Harwick Chem. Corp., 151 F.3d 793, 795 (8th Cir. 1998). “We apply the
same standard as the district court and determine whether the record shows that no
genuine issue of material fact exists and that the moving party is entitled to judgment
as a matter of law.” Tademe v. Saint Cloud State Univ., 328 F.3d 982, 986-87 (8th
Cir. 2003) (quotation omitted); Fed. R. Civ. P. 56(c). The summary judgment
standard requires us to view the evidence in the light most favorable to the non-
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moving party and draw all reasonable inferences in her favor, mindful that
“[s]ummary judgment seldom should be granted in discrimination cases where
inferences are often the basis of the claim.” Breeding v. Arthur J. Gallagher & Co.,
164 F.3d 1151, 1156 (8th Cir. 1999).
1. Sexual harassment claim
“In Title VII, Congress set up an elaborate administrative procedure,
implemented through the EEOC, that is designed to assist in the investigation of
claims of . . . discrimination in the workplace and to work towards the resolution of
these claims through conciliation rather than litigation.” Patterson v. McLean Credit
Union, 491 U.S. 164, 180-81 (1989) (citing 42 U.S.C. § 2000e-5(b)). Title VII
requires claimants to timely file a discrimination charge with the EEOC before he or
she may bring a Title VII action in court. 42 U.S.C. § 2000e-5(e)(1). It is generally
recognized that “‘[e]xhaustion of administrative remedies is central to Title VII’s
statutory scheme because it provides the EEOC the first opportunity to investigate
discriminatory practices and enables it to perform its roles of obtaining voluntary
compliance and promoting conciliatory efforts.’” Shannon v. Ford Motor Co., 72
F.3d 678, 684 (8th Cir. 1996) (quoting Williams v. Little Rock Mun. Water Works,
21 F.3d 218, 222 (8th Cir. 1994)); see Zipes v. Trans World Airlines, Inc., 455 U.S.
385, 398 (1982) (“By holding compliance with the filing period to be not a
jurisdictional prerequisite to filing a Title VII suit, but a requirement subject to waiver
as well as tolling when equity so requires, we honor the remedial purpose of the
legislation as a whole without negating the particular purpose of the filing
requirement, to give prompt notice to the employer.”). “The proper exhaustion of
administrative remedies gives the plaintiff a green light to bring her
employment-discrimination claim . . . .” Shannon, 72 F.3d at 684.
We do not require that subsequently-filed lawsuits mirror the administrative
charges. See Nichols v. Am. Nat’l Ins. Co., 154 F.3d 875, 886 (8th Cir. 1998) (“A
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Title VII plaintiff must file a charge of discrimination with the EEOC before bringing
a civil suit, but the scope of the subsequent action is not necessarily limited to the
specific allegations in the charge.”). However, “the sweep of any subsequent judicial
complaint may be [only] as broad as the scope of the EEOC ‘investigation which
could reasonably be expected to grow out of the charge of discrimination.’” Cobb v.
Stringer, 850 F.2d 356, 359 (8th Cir. 1988) (quoting Griffin v. Carlin, 755 F.2d 1516,
1522 (11th Cir. 1985)). “Allegations outside the scope of the EEOC charge . . .
circumscribe the EEOC’s investigatory and conciliatory role, and for that reason are
not allowed.” Kells v. Sinclair Buick-GMC Truck, Inc., 210 F.3d 827, 836 (8th Cir.
2000); accord Watson v. O’Neill, 365 F.3d 609, 614 (8th Cir. 2004) (“As in Williams,
Watson’s failure to make an assertion of retaliatory motive in relation to his
non-selection as a Building Manager Specialist is fatal to his attempt to resurrect the
issue.”); Williams, 21 F.3d at 223 (“‘Allowing a complaint to encompass allegations
outside the ambit of the predicate EEOC charge would circumscribe the EEOC’s
investigatory and conciliatory role, as well as deprive the charged party of notice of
the charge, as surely as would an initial failure to file a timely EEOC charge.’”
(quoting Babrocky v. Jewel Food Co. & Retail Meatcutters, 773 F.2d 857, 863 (7th
Cir. 1985))).
In this case, it is undisputed that Ms. Duncan did not check the “sex” box on
her EEOC complaint form. Delta argues that her sexual harassment claim, therefore,
is outside the scope of the administrative charge and thus cannot be litigated in this
action. Ms. Duncan counters that the harassment claim is like or reasonably related
to the substance of her retaliation allegations in the administrative charge. We,
however, do not agree.
We are mindful that Ms. Duncan filed her EEOC charge pro se. “[C]ourts
should not use Title VII’s administrative procedures as a trap for unwary pro se civil-
rights plaintiffs. . . . We . . . , therefore, when appropriate, construe civil-rights and
discrimination claims charitably.” Shannon, 72 F.3d at 685; accord Cobb, 850 F.2d
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at 359 (noting that discrimination complainants oftentimes file EEOC charges without
legal assistance and observing that courts must “interpret[] [administrative charges]
with the utmost liberality in order not to frustrate the remedial purposes of Title
VII.”). Even so, “there is a difference between liberally reading a claim which ‘lacks
specificity,’ and inventing, ex nihilo, a claim which simply was not made.” Shannon,
72 F.3d at 685 (internal citation omitted).
It is well-settled that charges of sexual harassment generally are not like or
reasonably related to retaliation charges for complaining about antecedent
harassment. See Wallin v. Minn. Dep’t of Corrs., 153 F.3d 681, 688 (8th Cir. 1998)
(“[I]t is well established that retaliation claims are not reasonably related to
underlying discrimination claims.”). Like the district court, we think Ms. Duncan’s
case is controlled by Williams v. Little Rock Municipal Water Works. In Williams,
the African-American plaintiff alleged in her EEOC charge that she had been denied
a promotion and a merit raise in retaliation for having filed an EEOC charge three
years earlier. 21 F.3d at 221. Her Title VII judicial complaint, however, alleged
retaliation and race discrimination. Id. The district court granted summary judgment
on the discrimination claims, because the plaintiff had failed to exhaust her
administrative remedies on that claim. Id. at 222-23.
We affirmed, because the race discrimination claim was “separate and distinct
from [the plaintiff’s] claims of retaliation.” Id. at 223. We noted that the particulars
of her EEOC complaint were clear and “specifically and unambiguously alleged that
Water Works retaliated against her because she had filed a charge with the EEOC in
January 1987.” Id. The plaintiff mentioned her unexhausted discrimination claim as
a basis for the retaliation, but this reference to her previous complaint was not enough
to exhaust the discrimination claim. Id.
This reasoning dictates the same result in Ms. Duncan’s case. The particulars
of her EEOC complaint make clear that she was alleging retaliation for having
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complained about sexual harassment. She stated, “I am being denied personal time,
harassed and intimidated in retaliation for complaining of sexual harassment . . . .”
She did not provide any details concerning any ongoing harassment, and the reference
to past harassment is simply insufficient to put the EEOC or Delta on notice of the
charge. Ms. Duncan, therefore, did not exhaust her sexual discrimination claim, and
the district court properly entered summary judgment in favor of Delta on that claim.
2. Retaliation
Having concluded that summary judgment was properly entered on Ms.
Duncan’s harassment claim, we turn now to her argument that the district court also
erred in entering summary judgment on her retaliation claim. The district court found
that Ms. Duncan failed to generate a genuine issue of material fact as to whether she
was subjected to an “adverse employment action.” The court found, therefore, that
she did not establish a prima facie case of retaliation. We agree with the district court
that Ms. Duncan failed to establish any adverse employment action and further find
that her allegations of adverse employment actions fail for causation.
To establish a prima facie case of retaliation under Title VII, a plaintiff must
show that he or she was subjected to an adverse employment action that was causally
related to his or her protected activity. Sowell v. Alumina Ceramics, Inc., 251 F.3d
678, 684 (8th Cir. 2001). We have explained,
An adverse employment action is a tangible change in working
conditions that produces a material employment disadvantage. See
Cossette v. Minn. Power & Light, 188 F.3d 964, 972 (8th Cir. 1999).
Termination, reduction in pay or benefits, and changes in employment
that significantly affect an employee’s future career prospects meet this
standard, see Kerns v. Capital Graphics, Inc., 178 F.3d 1011, 1016 (8th
Cir. 1999), but minor changes in working conditions that merely
inconvenience an employee or alter an employee’s work responsibilities
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do not, see Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir.
1997).
Spears v. Mo. Dep’t of Corrs. & Human Res., 210 F.3d 850, 853 (8th Cir. 2000);
accord Saulsberry v. St. Mary’s Univ. of Minn., 318 F.3d 862, 868 (8th Cir. 2003)
(“Certain employment actions cannot be characterized as adverse. Such actions
include changes in the terms, duties, or working conditions that cause no materially
significant disadvantage to the employee . . . or disappointment with changes in one’s
employment situation.”) (internal citations and quotations omitted) (omission in
original).
Ms. Duncan has not identified any “tangible change in working conditions that
produce[d] a material employment disadvantage.” See Spears, 210 F.3d at 853. It is
undisputed that Ms. Duncan remained in her turret operator position with the same
pay and benefits after complaining about Mr. Prunty’s conduct. Her work schedule
was changed, but so were all the other turret operators’ work schedules. The schedule
change Ms. Duncan complains about amounts to nothing more than a
“disappointment with changes in one’s employment situation,” Saulsberry, 318 F.3d
at 868, and cannot be characterized as “adverse” for purposes of Title VII. Moreover,
Ms. Duncan admits that Delta had contemplated this schedule change before she
complained about Mr. Prunty and that she was the only one opposed to it; therefore,
it is difficult to agree with her contention that the change was causally connected to
her complaint.
Ms. Duncan’s main point of contention on appeal is that she was assigned
heavier parts to run on her machine after she complained about Mr. Prunty. The
evidence shows that all turret operators were required to run heavy parts, and Ms.
Duncan was allowed to swap work when parts were too heavy or could not be run
through her machine. We cannot agree that being required to do her job constitutes
an adverse employment action. Nevertheless, giving Ms. Duncan the benefit of all
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reasonable inferences and assuming it was an adverse action, a reasonable jury could
not find that the heavier work assignments were causally connected to her protected
activity. Her own witness, Mr. Ring, testified that Delta continued to run the larger
parts even after Ms. Duncan went on disability leave. In addition, the first shift turret
operator who runs the same machine as Ms. Duncan stated by way of affidavit that
running heavy parts was just part of the job.
We have considered all of Ms. Duncan’s arguments in support of her retaliation
claim but, in short, must agree with the district court’s conclusion that Ms. Duncan’s
complaints amount to no more than “perceived slights.” See Scusa v. Nestle U.S.A.
Co., 181 F.3d 958, 969 (8th Cir. 1999) (noting parenthetically that “plaintiff must
show more than occasional unkind words, snubs and perceived slights by defendant’s
agents to prove adverse employment action”) (citation omitted). Further, she has
failed to offer any admissible evidence from which a reasonable jury could conclude
that the complained-of retaliatory conduct was connected to her complaint about Mr.
Prunty.
Accordingly, we affirm the judgment of the district court.
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