Janet L. Brower v. Marvin T. Runyon , 178 F.3d 1002 ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-3115
___________
Janet L. Brower, an individual, *
*
Plaintiff / Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Marvin T. Runyon, Postmaster General, *
United States Postal Service, *
*
Defendant / Appellee. *
___________
Submitted: April 23, 1999
Filed: June 2, 1999
___________
Before McMILLIAN and MURPHY, Circuit Judges, and MONTGOMERY,1
District Judge.
___________
MURPHY, Circuit Judge.
Janet L. Brower did work for the United States Postal Service (USPS) under
a contract it had with her employer, and she unsuccessfully applied for at least one
position with USPS. She later sued Marvin T. Runyon, Postmaster General, claiming
that she had been retaliated against for engaging in conduct protected under Title VII.
1
The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota, sitting by designation.
The district court2 granted summary judgment to Runyon, and Brower appeals. We
affirm.
I.
Brower was hired by Environmental Services Company in August 1994, and
under a contract that company had with USPS she worked as an environmental
compliance coordinator in the USPS district office in Omaha, Nebraska. In
September 1995 Brower became aware that USPS planned to hire environmental
compliance coordinators directly, and she applied for one of these positions. She was
interviewed for a level 19 position in Omaha but was not selected. Sometime later
she told her supervisor of her interest in a more senior position (level 23) at the area
office in St. Louis, Missouri. Applications were not taken for the St. Louis position
from non-USPS employees, but individuals who had previously applied and been
interviewed for level 19 positions were included in the applicant pool. Brower thus
came within the applicant pool, but she was neither interviewed nor selected for the
level 23 position.
Shortly after learning she would not be interviewed for the St. Louis position,
Brower contacted an Equal Employment Opportunity (EEO) counselor in the Omaha
USPS office on April 9, 1996 to obtain more information regarding the selection
process for the position. She did not allege in this visit that she had been
discriminated against during the selection process, and the EEO counselor took no
action in response to her visit. The next day Brower telephoned Jan Smith, the acting
manager for human resources for the USPS area office. Brower asked Smith about
the status of the level 23 position, said that she had been given misinformation about
the process by her supervisor, and requested an explanation as to why she had not
2
The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska.
2
been interviewed. Smith was either unable or unwilling to answer some of Brower’s
questions. Brower became frustrated and angry, raised her voice, and threatened to
call Smith’s superiors. She indicated that she believed her only remaining alternative
was to seek “legal recourse . . . through a civil suit,” but she did not mention her prior
visit to the EEO counselor or allege that she had been discriminated against based on
race, color, religion, sex, or national origin.
Smith subsequently contacted Michael Matuzek, the district manager, and Bill
Brown, the vice president of Midwest area operations, to advise them of her
telephone conversation with Brower and to suggest that she be removed from the
premises because her access to USPS facilities and computers posed a security risk.
Brower was asked to leave the USPS facility on April 11, and the contract for her
services was terminated shortly thereafter.
Brower filed a retaliation complaint with the EEO office in Omaha in May.
After receiving a notice of right-to-sue, she filed suit under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e - 2000e-17, alleging that USPS had retaliated
against her for “participating in making charges under Title VII.” She did not allege
in either her EEO or district court complaint, however, that the application process
for the level 23 position was discriminatory or that she had not received an interview
in retaliation for engaging in protected conduct. Instead, she claimed that USPS had
impermissibly terminated the contract for her services in retaliation for her
participation in a Title VII proceeding.
The district court granted Runyon’s motion for summary judgment after finding
that Brower had not engaged in activity protected under Title VII and that there was
no causal connection between what she claimed as protected activity and the adverse
employment action. Her claim focused on the application process for the St. Louis
position. The court observed that there might be a genuine issue as to whether
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plaintiff was an applicant for the level 23 position, but that issue was moot because
Brower had failed to state a claim covered under Title VII.
II.
On appeal, Brower argues that as an applicant for USPS employment she was
protected by the anti-retaliation provisions of Title VII and that the district court erred
in concluding that she had neither engaged in any statutorily protected activity nor
shown a causal connection between such activity and the termination of the contract
for her services. Runyon responds that the district court’s analysis was correct and
that Brower’s claim also fails because the adverse employment action complained of
was unrelated to her status as an applicant for employment.
A grant of summary judgment is reviewed de novo and only affirmed if the full
record establishes that there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Guinness
Import Co. v. Mark VII Distribs., Inc., 153 F.3d 607, 610 (8th Cir. 1998). All
justifiable factual inferences must be made in favor of the non moving party,
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), but that party must do
more than rely on denials or allegations in the pleadings. Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986). Summary judgment is appropriate if any essential element of
the prima facie case is not supported by specific facts sufficient to raise a genuine
issue for trial. Id.; Sweeney v. City of Ladue, 25 F.3d 702, 703 (8th Cir. 1994).
A.
Title VII of the Civil Rights Act of 1964 protects employees and applicants for
employment from discrimination on the basis of race, color, religion, sex, or national
origin. 42 U.S.C. §§ 2000e - 2000e-17. Its protections apply to certain federal
employees including employees and applicants for employment in the postal service.
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42 U.S.C. 2000e-16(a). The clause at the heart of this case is the “participation
clause” which makes it unlawful for employers to retaliate against an employee or
applicant for employment because she “made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this
subchapter.” 42 U.S.C. § 2000e-3(a) (emphasis added).3 To establish a prima facie
case of retaliatory discrimination, Brower must show that she engaged in protected
activity, that an adverse employment was taken against her, and that there was a
causal connection between the two. Cross v. Cleaver, 142 F.3d 1059, 1071 (8th Cir.
1998); Sims v. Sauer-Sundstrand Co., 130 F.3d 341, 343 (8th Cir. 1997).
Brower challenges the district court’s conclusion that she did not engage in any
activity protected under Title VII. She asserts that she took part in protected activity
when she visited the EEO counselor and when she told acting human resources
manager Smith on the phone that there might be future legal action. Conduct is only
protected, however, if it qualifies as participation “in any manner” in a Title VII
“investigation, proceeding, or hearing.” 42 U.S.C. § 2000e-3(a). It is clear that no
proceeding or investigation existed before April 9, 1996 when Brower visited the
EEO counselor. The critical question is whether her visit to the EEO counselor or her
telephone conversation with Smith could be said to have initiated a Title VII
proceeding or investigation.
Our cases provide limited guidance as to the boundaries of what falls within
the meaning of participating in a Title VII investigation or proceeding. In Ghane v.
3
The retaliation provision also contains an “opposition clause” which prohibits
retaliation against an employee or applicant for employment because she “opposed
any practice made an unlawful employment practice by this subchapter.” 42 U.S.C.
§ 2000e-3(a). Brower has not argued that USPS violated this provision, and any
such claim would fail on this record because there is no evidence that when she spoke
to Smith she had a good faith belief that USPS had violated Title VII. See Evans v.
Kansas City Sch. Dist., 65 F.3d 98, 100 (8th Cir. 1995).
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West, 148 F.3d 979, 982 (8th Cir. 1998), we determined that because the plaintiff had
never “filed an EEOC complaint or formally complained to any of his superiors about
illegal discrimination,” his only potential basis for a retaliation claim was his position
on the employer’s EEO committee. The requirement that the plaintiff have engaged
in protected conduct has been phrased in various ways; see, e.g., Manning v.
Metropolitan Life Ins. Co., 127 F.3d 686, 692 (8th Cir. 1997) (first prong met if
plaintiff “filed a charge of discrimination”); Harris v. Secretary, U.S. Dep’t of the
Army, 119 F.3d 1313, 1318 (8th Cir. 1997) (standard met if plaintiff “complained of
discrimination”). It is also required that the plaintiff have personally engaged in
protected conduct. Smith v. Riceland Foods, Inc., 151 F.3d 813, 819 (8th Cir. 1998).
Other courts have considered the scope of protected activity in a variety of
contexts. The Ninth Circuit concluded in Hashimoto v. Dalton, 118 F.3d 671, 679
(9th Cir. 1997), that a discussion with an EEO counselor was protected conduct
where it led the counselor to believe a formal complaint would be filed and the
counselor notified management officials accordingly. The issue has also been
analyzed in terms of whether the conduct was “an intimately related and integral step
in the process of making a formal charge.” Croushorn v. Board of Trustees of Univ.
of Tenn, 518 F.Supp 9, 23 (M.D. Tenn. 1980). The underlying charge need not be
meritorious for related activity to be protected under the participation clause.
Filipovic v. K&R Express Sys., Inc., 1999 WL 250312, *7 (7th Cir. 1999); Wyatt v.
Boston, 35 F.3d 13, 15 (1st Cir. 1994) (citations omitted). Nevertheless, the
complaint which allegedly led to the retaliation must have related to conduct
protected under Title VII. See, e.g., Watts v. Kroger Co., 170 F.3d 505, 511 (5th Cir.
1999) (informal complaint not protected because plaintiff did not report or allege any
sexual harassment).
The participation clause is designed to ensure that Title VII protections are not
undermined by retaliation against employees who use the Title VII process to protect
their rights. See, e.g., Hashimoto, 118 F.3d at 680. Retaliation may have a chilling
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effect regardless of whether an employer acts after a formal complaint has been filed
or after it knows one is to be filed. Not all discussions with individuals who are part
of the Title VII grievance process or all informal complaints will amount to
participation in a Title VII proceeding, however. At a minimum there would have to
be factual allegations of discrimination against a member of a protected group and the
beginning of a proceeding or investigation under Title VII. See Ghane, 148 F.3d at
982.
In this case it is not necessary to define the precise point at which a Title VII
proceeding or investigation begins. The parties agree that Brower went to visit an
EEO counselor on April 9, 1996 and that during her telephone conversation with
Smith on the next day she threatened to bring a civil suit. Brower testified that one
reason for her visit to the EEO counselor was to explore her EEO options, and Smith
testified that Brower had mentioned to her something about going to the EEO or an
attorney. It is undisputed, however, that in neither conversation did Brower complain
of illegal discrimination or imply that she had been treated unfairly because of her
race, color, religion, sex, or national origin. The EEO counselor did not take action
in response to her visit or notify her supervisors of potential discrimination claims,
and Brower’s mention to Smith of a possibility of a civil suit was not linked to any
discussion of discrimination. This record in insufficient to show that Brower
participated in a proceeding or investigation under Title VII.
Brower also did not produce sufficient evidence to support an inference that
her visit to the EEO office was causally connected to the termination of her contract.
An inference of retaliatory motive may be supported by evidence that the defendant
was aware of protected activity and that the date of the adverse employment action
closely followed such activity. Rath v. Selection Research, Inc., 978 F.2d 1087, 1090
(8th Cir.1992); Keys v. Lutheran Family and Children’s Services, 668 F.2d 356, 358
(8th Cir. 1981). But see Nelson v. J.C. Penny Co., 75 F.3d 343, 346-47 (8th Cir.
1996) (in light of all the circumstances temporal proximity found insufficient to
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establish causal connection). Although Brower’s contract employment was terminated
two days after her visit to the EEO counselor, the record does not contain any
evidence that Smith, Brown, Matuzek, or any other USPS official knew about her
conversation with the USPS EEO officer. The transcript of Brower’s telephone
conversation with Smith does not include any references to the EEO, and there is no
evidence that the EEO counselor contacted any USPS officials regarding Brower’s
visit. Brower has failed to offer evidence sufficient to support a finding of a causal
connection between this visit and the subsequent adverse employment action. Smith,
151 F.3d at 818-19.
B.
Runyon also argues that because Brower’s Title VII retaliation claim is based
on her status as an applicant for employment in the St. Louis office,4 the termination
of her contract employment is not sufficiently related to her claim to be cognizable
as an adverse employment action. Brower argues that she should be able to recover
for an adverse action not directly related to her application for employment because
employees can sometimes recover under Title VII for adverse actions taken after they
leave employment. She cites Robinson v. Shell Oil Co., 519 U.S. 337 (1997), in
support, but in that case the adverse employment action (providing a poor reference)
was still related to the employer-employee relationship. In contrast, Brower is
complaining that her contractual relationship with USPS was ended after she
unsuccessfully applied for a totally different position within USPS. She never alleged
that she was in any way retaliated against in that application process or that the
conditions of her contract employment violated any provision of Title VII. This
element of her claim was also inadequate.
4
There may be an issue as to whether Brower was in fact an applicant for the
level 23 position, but that issue need not be addressed in light of the other aspects of
the case.
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C.
Brower has not made out a prima facie case for retaliatory discrimination under
Title VII. The evidence presented failed to establish that she participated in a
protected activity, that there was a causal connection between any protected activity
and an adverse employment action, or that the termination of her contract
employment was cognizable as an adverse employment action. The district court did
therefore not err in granting summary judgment, and the judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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