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Race Discrimination Claims Tossed Despite Offensive Conduct

Title VII of the Civil Rights Act of 1964 prohibits race discrimination. But is a minority employee the victim of discrimination or retaliation if a supervisor treats all direct reports “very badly” and “like a child”? What if the supervisor also steps up documentation on the employee after she complained that the supervisor is “racist”? Read on to learn how the Eighth U.S. Circuit Court of Appeals handled those questions.

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Honest Indians’ comment leads to discrimination charges
Sally Higgins, a Native American, was employed as an assistant U.S. attorney (AUSA) in the South Dakota district. In July 1999, she began a two-year term as an AUSA for the U.S. attorney’s office in Rapid City, South Dakota. Her direct supervisor was Mara Kohn, who also supervised five other AUSAs.

Higgins had responsibility for participating in CIRCLE, a Department of Justice initiative designed to enhance tribal justice systems, and she prosecuted criminal cases. At the very least, she and Kohn had a personality conflict. As a result, Higgins ended up filing race and retaliation charges after she resigned. She claimed that Kohn and the U.S. attorney’s office discriminated against her because she is Native American and then retaliated against her after she complained.

According to Higgins, Kohn made derogatory racial comments about her, failed to properly supervise and mentor her, treated her very poorly, created a “shadow file” on her, instigated a “whisper campaign” degrading her performance, and then forced her to transfer to another office before her resignation. At one point, Kohn apparently asked if there were any “honest Indians,” a comment Higgins later claimed was evidence of race discrimination.

When Higgins’ discrimination and retaliation claims were brought before the federal district court they were dismissed because the court said she failed to identify material issues of fact to support the claims. The case was then appealed to the Eighth Circuit.

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Offensive treatment but no adverse action
On appeal, the Eighth Circuit noted that Higgins was required to establish a prima facie (minimally sufficient) case of employment discrimination by showing that:

  • she was a member of a protected class;
  • she met her employer’s legitimate expectations;
  • she suffered an adverse employment action; and
  • similarly situated employees who weren’t part of the protected class were treated differently.

The district court had found that Higgins failed to show she suffered any adverse employment action and thus couldn’t establish a prima facie case. The Eighth Circuit ultimately agreed.

An adverse employment action must be one that produces a “material employment disadvantage.” Termination, changes in pay or benefits, or decisions that restrict an employee’s future career prospects are generally sufficient to meet the adverse employment action requirement. Minor changes in an employee’s duties or working conditions, even if unwelcome, generally aren’t sufficient to establish a material disadvantage.

On appeal, Higgins first claimed that her removal from the CIRCLE project was an adverse employment action. The Eighth Circuit, however, found that a simple job reassignment with no corresponding reduction in salary, benefits, or prestige was insufficient to establish an adverse employment action.

Second, Higgins claimed that Kohn denied her proper supervision, mentoring, and training — thus setting her up for failure as an AUSA. Again, the Eighth Circuit found that she failed to show that the claimed lack of training had any real impact on her employment situation or that it failed to lead to a loss of promotion or pay increases.

Higgins next contended that Kohn kept a “shadow file” on her and started a “whisper campaign” of demeaning comments about her performance. Kohn testified, however, that she kept files on all of her AUSAs.

The record didn’t show that Higgins was singled out for bad treatment, and indeed, several other employees testified that Kohn’s style was to treat everybody like a “child . . . very badly” and that “she treated everybody like they had no brain and no law degree and we could not function without her.” According to one of Higgins’ fellow AUSAs, “Kohn’s style as a supervisor was offensive to all of us.”

In addition, the court found there was no evidence that Kohn had “poisoned” Higgins’ opportunities, even after she was transferred to another position. Therefore, she couldn’t establish that she was adversely affected by Kohn’s recordkeeping and/or the alleged “whisper campaign.”

Although Higgins claimed that Kohn failed to give her appropriate annual and midyear reviews, the facts tended to establish that her midyear review actually fell about two months before her two-year term was set to expire, so it wasn’t unusual that she didn’t receive the review. Further, she failed to show that the absence of a midyear evaluation led to any change in the terms and conditions of her employment.

Finally, Higgins claimed that her transfer to the Pierre, South Dakota, office at the end of her initial two-year employment term constituted an adverse employment action. According to the court, however, she really wasn’t transferred because her original term appointment had expired and she was offered a new position at the Pierre office.

In addition, there was no evidence that her title, salary, or benefits were affected in any way. The only adversity she experienced was the “normal inconvenience” associated with any transfer and move.

‘Cumulative’ impact of employment changes also not adverse
Higgins next argued that even if the actions of the U.S. attorney’s office weren’t individually sufficient to establish an adverse employment action, the cumulative impact of the changes to her employment situation constituted an adverse employment action.

Higgins, however, couldn’t establish that she suffered any systematic harsh or adverse treatment as a result of her supervision by Kohn. The alleged “shadow file” apparently had no impact on her position, nor was there any evidence that Kohn “poisoned the well” for her in Pierre.

Court addresses unique retaliation claim
In evaluating Higgins’ retaliation claim, the Eighth Circuit first noted that she was required to show that:

  • she engaged in protected conduct;
  • a reasonable employee would have found the challenged retaliatory action materially adverse; and
  • the adverse action was causally linked to the protected conduct.

Noting that the U.S. Supreme Court’s 2006 decision in Burlington Northern v. White changed the analysis of retaliation claims, the Eighth Circuit observed that the Burlington Northern decision extended the antiretaliation provisions of Title VII “beyond workplace-related or employment-related retaliatory acts and harm.”

Therefore, an employee doesn’t have to show that the adverse employment action related directly to the terms and conditions of employment. Rather, according to the appeals court, the challenged action must be materially adverse to the extent that it “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

That objective standard now requires the Eighth Circuit to consider whether a reasonable person in the employee’s position would have been dissuaded from making a discrimination claim because of the employer’s retaliatory actions.

Still, the court noted that the action against the employee must be “materially adverse” because, as the Supreme Court noted, “We believe it is important to separate significant from trivial harms. . . . Title VII does not set forth a general civility code for the American workplace.” Therefore, “petty slights or minor annoyances that often take place at work and that all employees experience” are insufficient to meet the new standard articulated by the Court.

Applying the Burlington Northern standard to Higgins’ claims, the Eighth Circuit observed that she alleged that Kohn failed to mentor her and that she suffered an adverse employment action by virtue of her transfer to Pierre. Nonetheless, the court rejected her retaliation claim.

According to the court, Kohn’s lack of mentoring or supervision would constitute an adverse employment action under the new Burlington Northern standard only if Higgins could establish that she had been left to flounder and that she was negatively affected by the lack of supervision or mentoring. The record, however, failed to show that she suffered a negative impact on her career.

As for Higgins’ claim that her transfer to the Pierre office was a materially adverse action, the court again wasn’t impressed. She wasn’t terminated from her position in Rapid City, nor was she actually transferred to Pierre. Her term ended in Rapid City, and she accepted a new position in Pierre.

Further, despite Higgins’ claim that she had to physically transfer to the new office, the court said that change didn’t constitute a materially adverse employment action. Also, there was no evidence following her move that she had new duties that were more difficult, had a less prestigious position, or suffered any economic harm.

Coemployee influenced by claimed adverse action?
Despite the Eighth Circuit’s rulings on those issues, Higgins wasn’t dissuaded from prosecuting her retaliation claim. She also pointed to a coemployee’s failure to file a legal claim against Kohn as proof that the coemployee was intimidated by the supervisor’s behavior toward her. The court, however, wasn’t persuaded that her innovative theory fit the objective standard offered by the Supreme Court.

In reality, Kohn wasn’t even the coemployee’s supervisor. Also, the court found it wasn’t evident that the coemployee was somehow discouraged by Kohn’s negative treatment of Higgins when she couldn’t have even had an impact on his career. Therefore, the court rejected Higgins’ efforts to use a coemployee’s action or inaction as evidence of retaliation. Higgins v. Alberto Gonzales, Attorney General of the United States of America, No. 06-2556/2007 U.S. App. LEXIS 6402 (8th Cir., 2007).

Employment tip
Of interest in this decision was the Eighth Circuit’s reaffirmation that an adverse employment action must be one that produces a material employment disadvantage. Further, the court’s interpretation of the new standard for retaliation under the Burlington Northern decision didn’t allow Higgins to advance her retaliation claim by arguing that a coemployee was intimidated by the way her supervisor treated her.

Higgins clearly painted Kohn as a difficult and abrasive manager. But even the alleged “shadow file” and “whisper campaign” against her were insufficient to constitute an adverse employment action.

Still, you should be aware that supervisors who create “shadow files” and pass on negative remarks about their direct reports could be tagged for discrimination if there’s evidence in a discrimination case that those surreptitious efforts negatively affected the employee’s ability to move forward within the organization or to move to another position successfully.

In this case, Kohn didn’t single out Higgins for bad treatment; she purportedly treated everybody the same. In the 21st century, however, no organization can afford to retain an “equal opportunity harasser.” Professional managers don’t use intimidation, “shadow files,” and “whisper campaigns.” They deal directly with each employee to address the concerns that are material to the employee’s performance.

Be watchful for supervisors in your organization who tend to “talk behind the backs” of people who report to them. If performance issues need to be addressed, they should have the courage to address them directly with the employee rather than undermining confidence about her within the organization.

As a result of the Supreme Court’s Burlington Northern decision, employees claiming retaliation are no longer required to show an adverse employment action specifically related to the terms and conditions of employment. Nonetheless, any challenged action still must be materially adverse.

In other words, the action must dissuade a reasonable employee from making or supporting discrimination charges. Also, the action must be of significance, thus eliminating the trivial harms, inconveniences, and incivilities that occur in every workplace.

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