Sally Higgins v. Alberto Gonzales

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-2556
___________
Sally Higgins, *
*
Plaintiff -Appellant, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Alberto Gonzales, Attorney General *
of the United States of America, *
*
Defendant - Appellee. *
___________
Submitted: December 15, 2006
Filed: March 20, 2007
___________
Before BYE, COLLOTON, and BENTON, Circuit Judges.
___________
BYE, Circuit Judge.
Sally Higgins, a Native American, was employed by the District of South
Dakota (DSD) as an Assistant United States Attorney (AUSA). After her resignation,
Higgins brought an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e - 2000e-17 (Title VII) alleging racial discrimination and retaliation. The
district court1 granted summary judgment on both claims finding Higgins failed to
1
The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota.
establish a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792(1972). We affirm.
I
Higgins is an enrolled member of the Oglala Sioux Tribe. In July 1999, she
began a two-year term AUSA position2 in the United States Attorney (USA) office in
Rapid City, South Dakota. At the time, the Rapid City office employed five AUSAs
in addition to Higgins—Jeannine Huber, Gregg Peterman, Diana Ryan, Mary
Thorstensen, and Mark Vargo—as well as Deputy USA Mara Kohn. Higgins was the
only Native American AUSA in the Rapid City office and was one of three Native
American employees in the state. Her duties were split evenly between the CIRCLE
Project3 and prosecuting criminal cases. She alleges her direct supervisor, Kohn,
discriminated against her based on race and thereafter retaliated against her for
complaining about such discrimination.
During her two-year term, Higgins alleges Kohn made several comments about
Native Americans either in her presence or within her earshot. Specifically, in March
2000, during the trial of tribal members for misspending monies, she contends Kohn
asked in her presence: “Aren’t there any honest Indians anywhere?” Higgins and
another Native American employee, Barbara Dull Knife, informally complained to
Ryan, the Equal Employment Opportunity (EEO) contact person in the Rapid City
office. Over a year later, Higgins reported this statement to Interim USA Michelle
2
Higgins’s position was always a two-year term position. She was informed at
the outset of her term it would expire in August 2001 and she would have to apply for
a new position in order to continue working for the DSD. Nevertheless she did not
apply for another position with the DSD.
3
The Comprehensive Indian Resources for Community and Law Enforcement
(CIRCLE) Project was a Department of Justice initiative designed to enhance tribal
justice systems.
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Tapken, shortly after Tapken became Interim USA. Tapken testified she did not
investigate EEO policies or advise Higgins to lodge a complaint as she believed too
much time had passed. She did confront Kohn about the allegation and asked her to
submit a written response. In her response, Kohn denied making the statement. In
addition to the “honest Indians” comment, Higgins claims Kohn asked “doesn’t
anybody work down there?” when trying to call the Department of Public Safety for
the Oglala Sioux Tribe and asked “don’t they have any cars down there?” referring to
the reservation. When Higgins’s term was about to expire, she claims Kohn stated:
“Your time is almost up. I wouldn’t want to be in your shoes.” Higgins construed
this to mean Kohn felt sorry for her because she assumed Higgins would go to work
on the reservation. Finally, she contends Kohn talked with her about two Native
American witnesses, stating if they wanted to buy alcohol they would “find a way,”
and she could get them arrested if they failed to comply with their subpoenas.
Throughout her two-year term, Higgins alleges Kohn failed to provide her with
appropriate mentoring, supervision or training, thus “setting her up to fail” as an
AUSA. She claims Kohn had an obligation to show her the ropes when she was first
hired. She also claims Kohn was nicer to Huber, a new Caucasian AUSA, and
provided her with more mentoring and assistance. There was no formal mentoring
system in place in the DSD during Higgins’s tenure. The record reflects at least some
AUSAs believed Kohn did not provide Higgins with appropriate supervision given
her lack of trial experience. Peterman testified Higgins made some significant trial
mistakes due to her inexperience, and Kohn did not provide her with appropriate
support and training post these mistakes having occurred. He also testified, however,
he worked with Higgins on these issues after being assigned as her mentor in August
2000. Ryan testified Kohn treated Higgins like a child and treated Huber with more
respect. She also testified, however, Kohn treated all of the AUSAs “very badly” and
“everybody said [Kohn] treats me like a child. Jeannine [Huber] said it, [Appellant]
said it, Gregg [Peterman] said it. She treated everybody like they had no brain and no
law degree and we could not function without her.” (Appellee App. at 358). Vargo
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testified Kohn was reluctant to supervise Higgins, but also that “Kohn’s style as a
supervisor was offensive to all of us” and she was condescending and criticized
“whatever you had done.” (Appellee App. at 382).
During her tenure, Higgins attended at least five training seminars. Although
it is alleged she was denied the privilege of attending an appellate advocacy training
seminar, she conceded during her deposition that when she requested permission, the
course was not available. The next time it was offered, she was “busy with a trial or
something.” She did not request permission to attend the course the following year.
In August 2000, after a year in her position, Higgins complained to an evaluation team
about the lack of a formal mentor. In response, Kohn assigned Peterman to mentor
Higgins. Although Peterman’s evaluations of Higgins are in the record, and he
testified about the mentoring relationship, Higgins testified she was never informed
he was her mentor but was simply told by Kohn she was to go to Peterman with
questions. Peterman evaluated Higgins’s performance in June 2001 in a memo to
Tapken. He indicated Higgins was a “very slow learner” with regards to trial practice
and procedure and she was not ready to prosecute serious offenses. He did note she
had done an adequate job prosecuting juveniles and lower level felonies. He noted:
“She will also need to work overtime hours if she wants to attain the level of
competency necessary.”
Higgins assembled a reasonably good trial record. She handled twenty-five
criminal cases during her term, obtaining twenty-one guilty pleas, two convictions in
three jury trials, and tried a bench trial which resulted in an acquittal. In 1999 and
2000, she received formal performance evaluations by Kohn which indicated her
performance in all categories “meets to exceeds expectations.” Higgins argues she
was denied a mid-year review in 2001 which affected her pay raise and promotion
opportunities. In South Dakota, however, salary increases are determined according
to the Administratively Determined Pay Plan under which AUSAs are eligible for pay
increases based on their annual reviews rather than their mid-year reviews. Higgins
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also contends she was denied an annual review in 2001, though such a review would
not have been due until early in 2002 and she resigned in October 2001. When
Higgins was hired, she was classified as a Grade 25 based on her five years of
experience. With locality pay, her salary was $55,052. During her tenure, she
received the same cost-of-living pay raises as the other AUSAs and additionally
received a promotion from Grade 25 to Grade 27, increasing her total salary to
$62,885—a raise substantially greater than the raise given to the other AUSA ranked
as “meets to exceeds expectations” during the annual cycle.
During her term in the Rapid City office, Higgins claims Kohn kept a “shadow
file” on her where she documented Higgins’s progress and kept copies of her draft
work product. Kohn testified she kept notebooks and draft work product for each
AUSA. There is some evidence in the record of Kohn having “stepped up” her
documentation of Higgins after she learned Higgins told Peterman about the “honest
Indians” comment and told employees in the Pierre office as to Kohn being a racist.
Higgins also claims Kohn “papered” her file with complaints. Specifically, she notes
Kohn reported to then-USA Ted McBride about both: 1) an alleged racially
discriminatory remark Higgins made about white people, and 2) Higgins’s alleged
leak of confidential information in a drug case. In addition, Kohn sent a memo to
Tapken (at her request) denying she made the “honest Indians” statement. Higgins’s
file also contains two memos to Kohn drafted by Peterman regarding complaints
lodged against Higgins by a magistrate judge as to her trial performance.
Higgins contends Kohn specifically kept track of when she came in and left the
office. Other AUSAs testified Kohn had the receptionist keep track of everyone’s
whereabouts. Finally, Higgins claims Kohn made demeaning comments about her
performance. She contends Kohn’s comments impacted her career potential in the
new term position she was seeking in the Pierre office, discussed below, because her
new supervisor, Deputy USA David Zuercher, was poisoned by Kohn’s
characterization of Higgins’s work. Zuercher testified he was familiar with Higgins’s
-5-
Rapid City work through his discussions with other AUSAs and Kohn and was
reluctant to have her work for him because of concerns about her skills and the
judicial complaints made about her. After she was hired in Pierre, however, Zuercher
assigned her a mentor and testified he was “terribly surprised” when she resigned. In
addition, Higgins’s new mentor, Randy Seiler, testified positively about her
performance after she began her term in Pierre.
Higgins’s term position was set to expire on August 17, 2001, and, because
Congress cancelled additional funding for the CIRCLE Project, her specific position
could not be renewed. In June 2001, the Justice Department Executive Offices
announced a hiring freeze for any district not having a permanent USA. The DSD
was impacted by the hiring freeze, as it did not have a permanent USA then, but rather
an Interim USA—Tapken. In spite of the hiring freeze, Tapken sought and obtained
permission to offer Higgins a new two-year term AUSA position in Pierre, South
Dakota, starting in August 2001. Tapken testified she conducted a need-study of the
USA offices in South Dakota to determine where the position would be located.
Higgins alleges Kohn recommended Tapken “terminate” Higgins. There is no
evidence in the record to support this allegation.4 Higgins accepted the Pierre term
position on August 15, 2001. She did not experience a change in salary or benefits,
and her new position consisted exclusively of prosecuting cases. Shortly after her
move to Pierre, Higgins filed a discrimination complaint with the EEOC. On October
20, 2001, she resigned and accepted a higher paying position with the U.S.
Department of the Interior in New Mexico.
4
Ryan testified Tapken stated it might be easier if she let Higgins’s term expire.
The only evidence in the record which might support the allegation that Kohn
recommended Higgins’s termination is Kohn’s testimony she called someone in
administration—Paul Ross—to ask about the procedure she should follow when a
term position expires because “[n]obody knew in [the Rapid City] office because it
had never happened before.”
-6-
II
We review the district court’s grant of summary judgment de novo, affirming
only if there is no genuine issue of material fact and the government is entitled to
judgment as a matter of law. Wallace v. Sparks Health Sys., 415 F.3d 853, 858 (8th
Cir. 2005). In reviewing the evidence, we draw all reasonable inferences in favor of
Higgins, the non-moving party, id., and “[w]e are mindful summary judgment should
seldom be utilized in employment cases.” Stidham v. Minn. Mining & Mfg., Inc., 399
F.3d 935, 937-38 (8th Cir. 2005).
A
“Under the McDonnell Douglas framework, a presumption of discrimination
is created when the plaintiff meets [her] burden of establishing a prima facie case of
employment discrimination. A minimal evidentiary showing will satisfy this burden
of production.” Davis v. KARK-TV, Inc., 421 F.3d 699, 704 (8th Cir. 2005). To
establish her prima facie case of racial discrimination, Higgins must show: 1) she is
a member of a protected class; 2) she met her employer’s legitimate expectations; 3)
she suffered an adverse employment action; and 4) similarly situated employees who
were not members of the protected class were treated differently. Id. The district
court found Higgins failed to show she suffered an adverse employment action and
thus has not made out a prima facie case under the McDonnell Douglas burden-
shifting framework. We agree.
“[An] adverse employment action must be one that produces a material
employment disadvantage.” Kerns v. Capital Graphics, Inc., 178 F.3d 1011, 1016 -17
(8th Cir. 1999) (internal quotation marks omitted). “Termination, cuts in pay or
benefits, and changes that affect an employee’s future career prospects are significant
enough to meet the standard, as would circumstances amounting to a constructive
discharge.” Id. (internal citation omitted). Minor changes in duties or working
conditions, even unpalatable or unwelcome ones, which cause no materially
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significant disadvantage do not satisfy the prong. Baucom v. Holiday Cos., 428 F.3d
764, 767 (8th Cir. 2005).
In support of her claim of racial discrimination, Higgins alleges several adverse
employment actions by Kohn, claiming she: 1) was removed from a primary job duty
on the CIRCLE Project; 2) was denied supervision, mentoring, and training; 3) was
subjected to a shadow file and “whisper campaign” about her performance; 4) was
formally complained about; 5) was not given an annual or mid-year progress review
in 2001; 6) was recommended for termination by Kohn; and 7) was transferred to a
different office with an unwilling supervisor. She argues, even if these actions are
insufficient when viewed separately, when taken together their cumulative force
constitutes an adverse employment action. We will consider each action in turn and
thereafter evaluate the cumulative force of those actions.
Higgins first argues her removal from her CIRCLE project duties for a few
weeks in early 2000 constitutes an adverse employment action. This court has held,
however, a job reassignment involving no corresponding reduction in salary, benefits,
or prestige is insufficient to establish an adverse employment action. See, e.g.,
Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994) (holding job
reassignment involving “nothing more disruptive than a mere inconvenience or an
alteration of job responsibilities,” without any “diminution in . . . title, salary, or
benefits” is insufficient to establish an adverse employment action). The record shows
McBride removed Higgins from her duties on the CIRCLE project for a few weeks
in early 2000. He testified he did so because of tribal tensions, and Higgins concedes
tribal members were angry with her for reporting misuse of CIRCLE project funds.
She does not allege her benefits or pay changed during this period and further admits
she took leave to study for the bar exam during this time. During this period she was
still responsible for her prosecutorial duties. She is not alleging she was given more
or less desirable duties. Like in Harlston, Higgins describes “nothing more disruptive
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than a mere inconvenience or an alteration of job responsibilities.” 37 F.3d at 382.
As such, this does not constitute an adverse employment action.
Higgins next claims she was systematically denied supervision, mentoring and
training so as to be “set up for failure” as an AUSA. Again, she makes no claim this
denial led to a decrease in her pay or benefits or affected her future career prospects,
thus this alone cannot constitute an adverse employment action. This alleged denial
fails to qualify as an adverse employment action for a more fundamental reason, as
she did not ultimately “fail” as evidenced by her new term AUSA position in Pierre.
In spite of a few performance complaints, she had a good trial record and was given
average (“meets to exceeds expectations”) performance reviews. Furthermore, the
record reflects she was assigned a mentor after complaining about a lack of assistance.
Any lack of mentoring or supervision simply does not rise to the level of an adverse
employment action, as she cannot establish the absence had any effect on her
employment situation. As for the alleged denial of training, she argues as to being
denied training which, by her assessment, “contribute[s] to promotion and pay
increases.” We have held “an employer’s denial of an employee’s request for more
training is not, without more, an adverse employment action.” Box v. Principi, 442
F.3d 692, 697 (8th Cir. 2006) (quoting Griffith v. Des Moines, 387 F.3d 733, 737 (8th
Cir. 2004)). In Box, the plaintiff made only one request for additional training and
actually received 200 hours of job training for her position. So too here, the record
shows Higgins was never actually denied a training opportunity she requested. She
testified as to not attending her desired appellate advocacy course because of
scheduling difficulties. The record also shows she attended several other training
seminars during her term. Although she makes the bald assertion of being denied
training which would have contributed to promotion and pay increases, however, she
fails to allege ever being denied a promotion or a raise because of a lack of training.
During her twenty-six month tenure at the DSD, her pay increased by more than
fourteen percent. As such, her alleged denial of training does not constitute an
adverse employment action.
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Higgins next contends Kohn kept a “shadow file” about her and started a
“whisper campaign of demeaning comments about her performance.” Kohn testified
she kept files on all of the AUSAs and kept their draft pleadings if she thought they
would be beneficial for evaluation purposes. The record does not reflect Higgins was
singled out for bad treatment. Even if Higgins could show Kohn only kept a “shadow
file” on her, she does not claim the notebook and alleged whisper campaign affected
her pay or benefits. She attempts to tie Kohn’s whisper campaign to Zuercher’s
reluctance to accept her in the Pierre office. There is evidence Zuercher was hesitant
about Higgins because of discussions he had with employees in the Rapid City office,
including Kohn, as to Higgins’s trial skills and a magistrate judge’s complaints. These
were his feelings prior to her assuming the Pierre position. There is no evidence, as
Higgins asserts, the “well was poisoned” at her new position. There is no evidence
Zuercher would not supervise her or treated her poorly or differently in her new
position. Zuercher testified he immediately assigned Higgins a mentor, and was
surprised when she resigned. There is also no evidence, aside from her resignation to
accept a higher paying position, that she was unhappy in her new position. Because
Higgins does not establish she was, in any way, adversely affected by Kohn’s record
keeping and alleged “whisper campaign,” this cannot constitute an adverse
employment action.
Higgins next argues Kohn’s various complaints about her constitute an adverse
employment action. The record provides very limited information about these
complaints. Even if there was evidence the complaints were false and retaliatory,
Higgins does not allege they led to a material change in her employment status. The
record shows no negative consequence to her because of these complaints. As such,
they cannot constitute an adverse employment action.
Higgins also claims the DSD’s failure to give her a mid-year and annual review
in 2001 constitute an adverse employment action. In the DSD, annual progress reports
were conducted either in January or February after the year reviewed; mid-year
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reports appear to be conducted in June. Only the annual reports influence pay
increases. It is true Higgins did not receive a mid-year report in June 2001. This was
two months before her term was set to expire. This court has often held “[a]n
unfavorable evaluation is actionable only where the employer subsequently uses the
evaluation as a basis to detrimentally alter the terms or conditions of the recipient’s
employment.” Turner v. Gonzales, 421 F.3d 688, 696 (8th Cir. 2005) (citation
omitted). It logically follows that Higgins must show the absence of a mid-year
evaluation led to a change in the terms and conditions of her employment. She has
not made such a showing. In fact, two months after she was supposed to be evaluated,
she was given a new position with the same pay and benefits in Pierre. She did not
receive an annual report in 2001 because she resigned in October—approximately
three months before such a review was due.
Higgins next claims Kohn recommended her termination and this qualifies as
an adverse employment action. As noted above, the record does not support this
allegation. Even if Kohn did make this recommendation, Higgins was not terminated.
After her term expired, Higgins was offered the new term position in Pierre. As there
was no resulting material change in Higgins’s employment situation, this alleged
recommendation cannot rise to the level of an adverse employment action.
Finally, Higgins argues her “transfer” to the Pierre office constitutes an adverse
employment action. As an initial matter, technically she was not transferred. Her
term expired and, in spite of a hiring freeze in place, Tapken sought and was granted
permission to offer her a new term position. Should we accept Higgins’s
characterization of the new position being a transfer, she points to no evidence her
title, salary and benefits changed or that her job responsibilities decreased.5 See
Turner, 421 F.3d at 697 (holding a transfer to a new city is not by itself an adverse
employment action where the plaintiff’s title, salary and benefits are not affected, and
5
It is true Higgins’s new position did not include work for the CIRCLE project,
however, Congress (and not the DSD) was responsible for terminating the project.
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the only adversity the plaintiff can claim are “normal inconveniences associated with
any transfer” such as the necessity of “establishing one’s professional connections in
a new community”); Zhuang v. Datacard Corp., 414 F.3d 849, 854 (8th Cir. 2005)
(holding the plaintiff failed to raise a genuine issue of material fact where it was
uncontested her pay and benefits remained the same after a change in job
responsibilities); Meyers v. Neb. Health & Human Serv., 324 F.3d 655, 660 (8th Cir.
2003) (holding a significant change in working conditions occurs where there is “a
considerable downward shift in skill level required to perform [the employee’s] new
job responsibilities”). In Turner, we ultimately found there was a genuine issue of
material fact as to whether the work to which the plaintiff was assigned after her
transfer was a considerable downward shift from her responsibilities prior to the
transfer. Turner, 421 F.3d at 697. Unlike in Turner, Higgins has failed to present
sufficient evidence to raise a genuine issue of material fact as to whether her new
position constitutes a demotion. She baldly asserts the Pierre position was “a
demotion in substance if not in form” because Zuercher testified it was a “completely
different position” and he was, prior to her transfer, hesitant about working with her.
What is glaringly absent from her brief is reference to evidence in the record about her
job duties in Pierre. The record shows her new position involved prosecuting criminal
cases—the same work she was doing in Rapid City. She was immediately assigned
a mentor who testified positively about her work. Higgins presents no evidence of
being displeased by her workload in Pierre or that it represented a considerable
downward shift from her responsibilities prior to the transfer. As such, her “transfer”
cannot constitute an adverse employment action.
Higgins contends, even if the alleged actions do not individually constitute an
adverse employment action, taken together they cumulatively rise to the level of an
adverse employment action. She relies on Phillips v. Collings, 256 F.3d 843 (8th Cir.
2001) and Kim v. Nash Finch Co., 123 F.3d 1046, 1060 (8th Cir. 1997) for the
proposition about actions short of termination or a decrease in pay or benefits still
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constituting an adverse employment action.6 In both Phillips and Kim, we found an
adverse employment action where the plaintiffs were not fired and did not suffer a
change in pay or benefits. Each of these cases presents a particularly extreme set of
facts. In Phillips, a supervisor prepared a four-page evaluation of the plaintiff in
which she recommended termination specifically based, in part, on his religious
beliefs. After this negative evaluation was revised by others, the recommendation of
“termination” was changed to “needs improvement.” In response, the supervisor
drafted a new, fifty-three page evaluation criticizing “virtually every aspect of [the
plaintiff’s] job performance.” This evaluation contained an extensive “Corrective
Action Plan” which included remedial training. Phillips, 256 F.3d at 846. We
concluded this was tantamount to an adverse employment action, noting:
Indeed the record clearly reveals that [the supervisor], who could not
unilaterally terminate [the plaintiff], nor deny his transfer, did everything
she could to disrupt his employment. Had [her] corrective action plans
been implemented they would signify a tangible change in [the
plaintiff’s] duties or working conditions that constitute a material
disadvantage.”
Id. at 849 (internal citations omitted). Likewise, in Kim, immediately after
complaining about age and race discrimination, after more than ten exemplary years
with the company, the plaintiff was stripped of more desirable foreman duties, was
given much lower performance evaluations, was orally warned about his poor
“attitude,” was placed under constant surveillance at work, was excluded from work
meetings, was issued written reprimands for alleged race-based incidents, and was
required to attend special retraining in spite of his seniority. We found “[t]hese are
the kind of serious employment consequences that adversely affected or undermined
Kim’s position, even if he was not discharged, demoted or suspended” and held, as
6
Higgins also relies on Bassett v. Minneapolis, 211 F.3d 1097, 1105 (8th Cir.
2000). In Bassett however, the adverse employment action prong was not at issue, as
the plaintiff was terminated.
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a matter of law, such systematic retaliatory conduct collectively constituted an adverse
employment action. Kim, 123 F.3d at 1060.
In this case, the record does not show the level of systematic bad treatment
adversely affecting Higgins’s employment situation which is evident in Phillips and
Kim. She was not forced into a remedial retraining program. The alleged “shadow
file” apparently had no impact at all on her position, and did not impact her
performance evaluations by which the DSD determined her pay. The record contains
absolutely no evidence of a “poisoned well” in Pierre. Although there is evidence
Zuercher had some hesitancy about supervising Higgins because of complaints about
her job performance, there is no evidence these feelings continued after Higgins
started working in the Pierre office. Although Kohn’s treatment of Higgins was harsh
and unprofessional, even cumulatively, the alleged adverse employment actions do not
show a material employment disadvantage. Each of the claimed adverse employment
actions falls far short of constituting an adverse employment action. Taking these
actions together does not correct such insufficiency.
B
Higgins also contends the district court erred in holding she failed to establish
an adverse employment action in her Title VII retaliation claim. Because the district
court found her as not having established an adverse employment action in the context
of her Title VII race discrimination claim, it assumed she had failed to establish this
prong in her Title VII retaliation claim. Higgins argues, in light of the Supreme
Court’s recent broadening of the retaliation prima facie case in Burlington N. & Santa
Fe Ry. Co. v. White, __ U.S. __, 126 S. Ct. 2405 (2006)7, she established her prima
facie case. We disagree.
7
The Supreme Court rendered its decision in Burlington Northern subsequent
to the district court’s decision in this case.
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As in a Title VII discrimination claim, in a retaliation claim the plaintiff bears
the burden of establishing a prima facie case. After Burlington Northern, to establish
such a claim, Higgins must show: 1) she engaged in protected conduct; 2) a reasonable
employee would have found the challenged retaliatory action materially adverse; and
3) the materially adverse action was causally linked to the protected conduct.
Burlington N., 126 S. Ct. at 2415; cf. Singletary v. Mo. Dept. of Corrs., 423 F.3d 886,
892 (8th Cir. 2005) (articulating old standard where, to satisfy the second prong, the
plaintiff was required to show he suffered an adverse employment action).
Until recently, as part of their prima facie case, we required plaintiffs claiming
unlawful retaliation under Title VII—like those claiming unlawful discrimination—to
show an “adverse employment action” which produced a “material employment
disadvantage” by cutting the employee’s pay or benefits, depriving employment
opportunities, or affecting future career prospects. Baucom, 428 F.3d at 767. As the
standard in both types of Title VII actions was identical, if a plaintiff failed to
establish the adverse employment action prong in the discrimination claim, we would
automatically find failure to make out the prong in the retaliation claim. See id. at 768(summarily dispensing with plaintiff’s retaliation claim after finding he had failed to
demonstrate an adverse employment action in his discrimination claim). In
Burlington Northern, the Supreme Court announced a different standard for
determining whether a plaintiff has established a retaliation prima facie case. Because
“[t]he scope of the anti-retaliation provision extends beyond workplace-related or
employment-related retaliatory acts and harm,” a plaintiff need not show an adverse
employment action related to the terms and conditions of employment. Id. at 2414.
Instead, “the challenged action [must be] materially adverse, which in th[e] context
[of a retaliation claim] means that it well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.” Id. at 2415 (citation and
internal quotation marks omitted). The standard is thus objective, requiring us to
consider whether a reasonable employee in the plaintiff’s position might have been
dissuaded from making a discrimination claim because of the employer’s retaliatory
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actions. Id. at 2412-13. The Court explained the action against the plaintiff must still
be “materially adverse” noting: “[w]e speak of material adversity because we believe
it is important to separate significant from trivial harms,” id. at 2415, and “Title VII
. . . does not set forth ‘a general civility code for the American workplace.’” Id.
(quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). As
such, certain behavior continues to be non-actionable under the retaliation provision
such as “petty slights or minor annoyances that often take place at work and that all
employees experience,” “personality conflicts at work that generate antipathy,” and
“snubbing by supervisors and co-workers.” Burlington N., 126 S. Ct. at 2415.
The Burlington Northern Court held there was sufficient evidence to support
a jury verdict for retaliation where the plaintiff was reassigned to job duties which,
although they fit within the same job description as a previous position, were “by all
accounts more arduous and dirtier.” Id. at 2417 (quotation marks omitted). Prior to
her reassignment, she had been assigned to a forklift operator position which required
more qualifications, was more prestigious, and was “objectively considered a better
job.” Id. The Court concluded a jury could reasonably conclude this reassignment of
responsibilities would have been materially adverse to a reasonable employee. Id.The Court also found the plaintiff’s thirty-seven day, investigatory suspension with
backpay was materially adverse under the new standard. Id.This is our first opportunity to address Burlington Northern, and apply the
Court’s reformulation of the retaliation prima facie case. Applying the new standard,
we find Higgins has not met her burden. Unlike the plaintiff in Burlington Northern,
she has not shown Kohn’s retaliatory actions were materially adverse such that a
reasonable employee in her situation would have been dissuaded from complaining
about discrimination. In her briefs, she essentially confines the arguments to two
alleged actions: Kohn’s lack of mentoring and supervision and her “transfer” to Pierre.
With regard to the mentoring and supervision claim, she contends “floundering should
be recognized as an adverse employment action” and argues Kohn’s behavior can be
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compared to “the supervisor who pointedly excludes an employee from networking
lunches.” Kohn’s lack of mentoring or supervision might constitute an adverse
employment action under the new standard if Higgins could establish she was actually
left to “flounder” or was negatively impacted by the lack of supervision or mentoring.8
But she has not alleged, and the record does not support, such a claim. Although the
record reflects she had a personality conflict with Kohn, there is nothing to suggest
this conflict created a situation so unbearable or bleak that a reasonable employee
would have been dissuaded from complaining about discrimination in such an
environment.
As for the claim her “transfer” to the Pierre office was a materially adverse
action, again it bears mention Higgins was not terminated from her position in Rapid
City, nor was she actually transferred to Pierre; Higgins’s two-year term position
ended by the content of its terms. She was then, after considerable effort by Tapken,
offered another two-year term AUSA position in Pierre, which she accepted. It is
difficult to characterize this as an adverse action, let alone a materially adverse one.
She does not allege the new position was qualitatively more difficult or less desirable
than the one she held in Rapid City. As noted above, there is essentially no
information in the record about her new position once she moved to the Pierre office.
Zuercher testified he was surprised when Higgins resigned. Her mentor, Seiler,
testified positively about her performance in Pierre. If anything, the record suggests
her situation improved in Pierre. She argues the Pierre job “mandated [her] to leave
her case files, start all over with [sic] different cases and move to a new school setting
with her family.” This court has, prior to Burlington Northern, found such arguments
to be wanting. See Turner, 421 F.3d at 697 (holding, where the plaintiff argued a
transfer required her to develop new contacts and start her career over, “[w]e are not
persuaded as to the normal inconveniences associated with any transfer, such as
8
It also bears mention that, even if Higgins could establish Kohn’s actions were
materially adverse, she does not allege a causal relationship between Kohn’s lack of
supervision and mentoring and Higgins’s informal discrimination complaints.
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establishing one’s professional connections in a new community, are sufficient,
without more, to demonstrate a significant change in working conditions”).
Burlington Northern does not change this result. Under Higgins’s logic, any move
would qualify as a materially adverse action because it would force an employee to
start over in a new city. We are unwilling to set such a definite line. Here, even if we
were to accept the premise that her move was a retaliatory action—which we do
not—we cannot conclude the move was materially adverse. There is no evidence her
new duties were more difficult, less desirable or less prestigious. In this context, even
given the inconvenience of a move, this action does not rise to the level of a materially
adverse action.
Finally, Higgins points to Ryan’s failure to bring a retaliation claim against
Kohn as proof Ryan was dissuaded by Kohn’s behavior towards Higgins. The
standard under Burlington Northern is objective and asks us to consider what a
reasonable employee would do in Higgins’s shoes. She would like us to look at
Ryan’s failure to file a complaint against Kohn, and treat her as the proverbial
“reasonable employee”—clearly if the EEO contact person would not file a claim, a
reasonable employee would likely be dissuaded from filing a claim. We are unwilling
to stray from the Supreme Court’s objective standard. Furthermore, the record does
not support Higgins’s contention that Ryan was dissuaded from complaining because
of Kohn’s treatment of Higgins. Kohn was not Ryan’s supervisor, as she was a civil
specialist, rather than a criminal one. Therefore, Ryan was unlikely to be dissuaded
by Kohn’s negative treatment of Higgins because Kohn could not have similarly
impacted her career with the DSD. Nevertheless, under Burlington Northern, we must
look at Higgins’s situation objectively to determine whether a reasonable employee
in her shoes would be dissuaded from bringing a complaint. She cannot make her
claim based on personality conflicts, bad manners, or petty slights and snubs. It is
clear she had a serious personality conflict with her supervisor. The record also shows
Kohn was angry with her after she told others Kohn was a racist. What is absent from
the record is evidence showing Kohn’s anger and related actions materially and
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adversely affected Higgins’s life such that a reasonable employee in her shoes would
be dissuaded from complaining.
III
For the foregoing reasons, we affirm the district court.
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