Sheila E. Peterson v. Scott County ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2531
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Sheila E. Peterson, *
*
Appellant, *
*
v. * Appeal From the United States
* District Court for the
Scott County; Scott County Sheriff's * District of Minnesota.
Department; William J. Nevin, *
Sheriff; Tom Helmrich, Jail *
Administrator, *
*
Appellees. *
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Submitted: February 17, 2005
Filed: May 6, 2005
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Before BYE, HEANEY, and MELLOY, Circuit Judges.
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HEANEY, Circuit Judge.
Sheila Peterson appeals the district court’s grant of summary judgment in favor
of her former employer, Scott County jail, and its administrators (collectively the
County), on her claims of unlawful employment discrimination and retaliation. She
contends that she established a genuine issue of material fact regarding whether her
age and sex were motivating factors in the County’s failure to hire her full time and
failure to promote her to a full-time position, whether she was subject to a hostile
environment, and whether the County unlawfully terminated her in retaliation for her
complaints. We reverse on the failure to hire, failure to promote, and retaliation
claims and affirm the grant of summary judgment on the hostile work environment
claim.
BACKGROUND
We recount the evidence in the light most favorable to Peterson. In response
to a posted notice, Peterson applied for a correctional position with the Scott County
Sheriff’s Department on May 15, 2001. She was 51, had nine years of experience as
a corrections officer, and met the minimum qualifications of the position.1 Peterson
interviewed with Scott County on June 12, 2001. Three male applicants under 40,
Kellace McDaniel, Marc Ravnholdt, and Gregg Krinke, also interviewed on the same
day, and the County initiated background checks for all four applicants. The three
male applicants were offered full-time jobs before their written background check
summaries were completed.2 Peterson was offered an intermittent position after her
background check was completed on August 29, 2001.
Peterson applied twice for promotions to full-time positions with the Sheriff’s
Department. These positions were given to Justin Lane and Todd Langevin. Lane
did not initially meet the minimum qualifications for a full-time permanent position;
after the requirements were changed on September 21, 2001 to include military
experience, Lane was re-rated and met the revised qualifications. He was offered a
full-time position on September 28, 2001. Todd Langevin also lacked the minimum
1
The minimum qualifications for the full-time corrections position were a high
school equivalency, drivers license, and one year of experience as a corrections
officer or two years of college in a corrections-related field.
2
Ravnholdt was offered a full-time position on July 12; his background check
was completed July 18th. McDaniel was offered a full-time position on July 18; his
background check was completed on July 19th. Krinke was offered a full-time
position on August 8th; his background check was completed September 11.
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qualifications for a full-time position with the County but was placed in a temporary
full-time position on July 3, 2001, less than a month after he was hired as an interim
employee. In October 2001, Langevin and Peterson both applied for a newly opened,
full-time, temporary position with Scott County. Peterson learned on November 9th
that Langevin had been hired for the position.
When Peterson started working at Scott County, her supervisor, Sergeant
Dumbleton, repeatedly called her an “old lady,” and told her at one time to “put
glasses on so [she] could hear.” (Appellant’s App. at 166-67.) He told her that she
“didn’t have the right parts” to take additional shifts, (Appellant’s App. at 182); when
she asked to be included in training on booking inmates, he refused, saying that it
“was too hard to train old ladies.” (Appellant’s App. at 166.) These types of
comments were made at least once a shift most of the days Peterson worked with
Sergeant Dumbleton.
On one occasion Peterson’s co-worker, Tom Bloedow, swore and screamed at
her when she requested assistance releasing inmates. He told her that women were
not needed at the jail because they were lazy. Peterson complained to the jail
administrator, Tom Helmrich, about the age- and sex-related comments in October.
On November 2nd and 5th, she complained to Sergeant Lenz regarding Bloedow and
Dumbleton. In response, Lenz discussed proper language with Officer Bloedow, and
reported the incident to Tom Helmrich. Lenz also sent an email to Helmrich
recounting his problems with Peterson’s performance. Sergeant Lenz reported that
Peterson allowed an inmate to leave three hours early on work release, destroyed an
inmate funds receipt, and that caseworkers had problems with her calling them
inappropriately and trying to tell them how they should do their jobs.
Peterson learned on November 19th that other officers were mimicking her and
making fun of her complaints. The following day Peterson called in sick because she
felt that the situation was escalating. She left a voice mail with Pam Johnson, Scott
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County employee relations, expressing her concerns about not being given a full-time
position, Dumbleton’s sex- and age-related comments, and the other officers making
light of her complaints. Peterson also called Deputy Sheriff Mike Busch regarding
these issues, adding that she was not receiving any training at the jail. Finally,
Peterson called Tom Helmrich and discussed Langevin’s promotion to the full-time
temporary position, and Dumbleton’s and Bloedow’s comments. Helmrich responded
that if she was unhappy, “maybe you should be somewhere else.” (Appellant’s App.
at 142.) A notation on Helmrich’s calendar for the day reads “Call Pam Johnson/ER
. . . INTR-Dismissal.” (Appellant’s App. 15.) On December 4th, Peterson was
terminated.
Peterson brought suit alleging discrimination based on age and gender,
harassment, and retaliation in violation of Title VII, 42 U.S.C. § 2000e-2, 2000e-3;
the Age Discrimination in Employment Act, (ADEA), 29 U.S.C. § 623; 42 U.S.C. §
1983; and the Minnesota Human Rights Act (MHRA), Minn. Stat. § 363A.28, 363.33.
The district court granted summary judgment to the defendants. This appeal follows.
ANALYSIS
I. Standard of Review
We review the district court’s grant of summary judgment de novo. Summary
judgment is appropriate if the facts, viewed in the light most favorable to the non-
moving party, show that there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249-50 (1986). Summary judgment should seldom be granted in employment
discrimination cases because intent is often the central issue and claims are often
based on inference. Wheeler v. Aventis Pharm., 360 F.3d 853, 857 (8th Cir. 2004);
Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1156 (8th Cir. 1999); see also
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Bassett v. City of Minneapolis, 211 F.3d 1097, 1099 (8th Cir. 2000) (collecting
cases). Summary judgment should not be granted unless the evidence could not
support any reasonable inference of discrimination. Lynn v. Deaconess Med. Ctr.-
West Campus, 160 F.3d 484, 486-87 (8th Cir. 1998).
II. Age and Gender Discrimination
Peterson has not presented direct evidence of discrimination; we analyze her
discrimination and retaliation claims using the familiar three-step, burden-shifting
analysis set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973).
Applying this framework, a plaintiff has the initial burden of establishing a prima
facie case of discrimination. Id. at 802. The prima facie case raises a legal
presumption of discrimination in the plaintiff’s favor, requiring the defendant to
articulate a legitimate, nondiscriminatory reason for its action. Id.; Tex. Dep’t of
Cmty Affairs v. Burdine, 450 U.S. 248, 253 (1981). The plaintiff then has the
opportunity to demonstrate that the defendant’s proffered reasons are in fact a mere
pretext for discrimination. Burdine, 450 U.S. at 253; St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 516-17 (1993) (clarifying that a plaintiff must show that the employer’s
proffer is a pretext for unlawful discrimination, not that it is merely false in some
way). The evidence supporting the plaintiff’s prima facie case may suffice to
discredit the defendant’s explanation, and the plaintiff is not required in all cases to
introduce additional evidence to meet the burden of proof. Burdine, 450 U.S. at 255
n.10; Haglof v. Northwest Rehab., Inc., 910 F.2d 492, 494 (8th Cir. 1990). The
ultimate burden of proving discrimination remains with the plaintiff at all times.
Hicks, 509 U.S. at 518.
Peterson argues that we should apply a modified McDonnell-Douglas standard
in light of Desert Palace Inc. v. Costa, 539 U.S. 90, 101-02 (2003), permitting her to
survive summary judgment if she has raised a genuine issue of material fact that
either the defendant’s proffered reason for its action is a pretext for discrimination or
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that unlawful discrimination was a “motivating factor” in the employer’s decision.
We have recently held that Desert Palace “is entirely consistent” with prior Eighth
Circuit summary judgment decisions. Griffith v. City of Des Moines, 387 F.3d 733,
736 (8th Cir. 2004); Strate v. Midwest Bankcentre, Inc., 398 F.3d 1011, 1017-18 (8th
Cir. 2005). A plaintiff may meet the ultimate burden of proving intentional
discrimination either through evidence “showing a specific link between the alleged
discriminatory animus and the challenged decision” and allowing the fact finder to
conclude that this animus actually motivated the challenged decision, Griffith, 387
F.3d at 736 (quoting Thomas v. First Nat’l Bank of Wynne, 111 F.3d 64, 66 (8th Cir.
1997)), or through indirect evidence subject to the McDonnell-Douglas analysis. A
defendant is not entitled to summary judgment if the plaintiff has sufficient evidence
that unlawful discrimination was a motivating factor in the defendant’s action even
if the defendant has brought forward evidence of additional legitimate motives.
Griffith, 387 F.3d at 735. Because Desert Palace does not alter this approach, we
apply our traditional analysis to Peterson’s claims.
A. Failure to Hire
Reviewing the record de novo, we conclude that Peterson has met her prima
facie burden. She is within the protected class in both the ADEA and Title VII
contexts, met the qualifications for the corrections officer position, and was hired for
a temporary, rather than full-time position while three younger male applicants, who
interviewed on the same day, were hired for full-time positions. Scott County in turn
has presented a legitimate non-discriminatory basis for the hiring decision.
Applicants were hired on a rolling basis as their background checks were completed;
Peterson’s background check was completed after those of the other applicants.
Therefore, the question on summary judgment is whether Peterson has shown there
is a genuine factual controversy regarding whether the County’s hiring decision was
motivated by Peterson’s age or sex.
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Peterson first argues that offers were made to three other applicants before their
background checks were completed, in one case more than a month before the
completion of the background check. The County claims that some offers were made
based on a verbal confirmation that the background check was substantially complete
and clear, because they did not want to lose qualified applicants through delays in the
hiring process. While a jury may choose to accept this explanation, we draw
inferences at this stage in favor of the non-moving party. The standard hiring process
did not involve making offers before the formal background check had been
completed. A reasonable jury could infer that verbal confirmations were not given,
and offers were made without reference to background checks at all. A jury could
also conclude that Scott County accelerated or modified the application process for
some applicants and not others. Viewed in the light most favorable to Peterson, this
evidence supports Peterson’s contention that the completed background check was
not in fact a prerequisite to an offer.
Scott County argues that Helmrich in fact hired Peterson, raising a presumption
against discrimination. This court has previously observed that it is not likely that a
supervisor would hire an older woman and then discriminate against her on the basis
of her age and gender. Herr v. Airborne Freight Corp., 130 F.3d 359, 362-63 (8th Cir.
1997). We are not persuaded that this presumption can be applied with equal force
when an applicant is hired, not for the position to which she applied, but for a less
desirable interim position. Evidence of this type of hiring may show discriminatory
intent rather than raising a presumption against discrimination.
Evidence of a changing hiring process and fluid standards for applicants, taken
together with the defendant’s evolving explanation of its hiring decision, would allow
a reasonable jury to infer that the County’s explanation is a pretext for unlawful
discrimination. See Gaworski v. ITT Commercial Fin. Corp., 17 F.3d 1104, 1110
(8th Cir. 1994) (noting that a jury could reject the employer’s proffered reason for
termination because there was conflicting evidence on its believability). On summary
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judgment the plaintiff need only present evidence sufficient to raise genuine doubt
as to the legitimacy of the defendant’s motives. O’Bryan v. KTIV Television, 64 F.3d
1188, 1192 (8th Cir. 1995). Peterson’s evidence meets this standard, and the district
court erred in holding to the contrary.
B. Failure to Promote
Peterson claims that the County’s failure to promote her to a full-time position
was discriminatory. The County concedes that Peterson has established the first three
elements of her prima facie case, but argues that she was not similarly situated to the
successful candidates because the promoted officers had more experience working
for the County, and were already full-time temporary employees. At the prima facie
stage, the plaintiff’s burden–showing she is similarly situated to other employees–is
“not onerous.” Wheeler v. Aventis Pharm., 360 F.3d 853, 857 (8th Cir. 2004)
(quoting Williams v. Ford Motor Co., 14 F.3d 1305, 1308 (8th Cir. 1994)). The
record shows that Peterson, Lane, and Langevin were recent hires, applying for full-
time positions in the jail. All three were considered viable candidates for the
position. See Ottman v. City of Independence, Mo., 341 F.3d 751, 757 (8th Cir.
2003) (finding candidates similarly situated where both met the minimum
qualifications for the position). For the purposes of establishing a prima facie case,
Peterson has shown that she was similarly situated to Lane and Langevin. Whether
the applicants’ experience and qualifications were in fact a legitimate basis for the
County’s decision is more relevant to the issue of pretext than the plaintiff’s prima
facie burden.
The County explained that Lane and Langevin were promoted because they had
worked longer in Scott County, and this experience was viewed as more important
than other corrections experience. Peterson has shown, however, that at least one
full-time officer, Gregg Krinke, had no previous corrections experience at Scott
County or any other facility when he was hired. While Lane and Langevin both had
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slightly more Scott County experience than Peterson, they were promoted only a few
months after being hired, and neither initially met the minimum qualifications for a
permanent full-time position. Evidence that an employer promoted a less-qualified
candidate can support a finding that the employer’s non-discriminatory reasons for
the promotion were pretextual. Duffy v. Wolle, 123 F.3d 1026, 1037-38 (8th Cir.
1997). While courts do not review the wisdom or fairness of employers’ business
judgments, other than to determine whether they involve intentional unlawful
discrimination, we may consider whether an employer hired or promoted an
individual who was substantially less qualified than an unsuccessful candidate in the
protected class. Id. at 1038. Peterson’s evidence that both Lane and Langevin did
not meet the County’s minimum qualification standards for a full-time position would
permit a jury to determine that the stated reason for their promotion is not worthy of
belief.
The County also claims that Peterson’s poor performance and argumentative
attitude provide a legitimate basis for preferring other candidates. In an email dated
November 6th, Sergeant Lenz reported that Peterson allowed an inmate to leave three
hours early on work release, destroyed an inmate funds receipt, and that caseworkers
reported they found her difficult to work with. According to the County, the
supervisors discussed these issues in a meeting, and determined that Langevin was
the superior candidate for the temporary full-time position. The evidence, however,
shows that Peterson’s reported performance problems could not have influenced the
promotion decision because they were not reported until after the team meeting; two
of the incidents had not yet taken place. In addition, Peterson’s supervisors deny
stating that she was argumentative and deny discussing her qualifications with
Helmrich at the meeting. The conflicting testimony of the supervisors who were
present at this meeting raises a genuine issue of material fact regarding the impact of
Peterson’s performance and attitude on its hiring decision. Although this is an
admittedly close case, we conclude that there is sufficient evidence in the record to
cause a jury to doubt the defendants’ reasons for not promoting Peterson.
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II. Hostile Work Environment
To establish her hostile work environment claim, Peterson must show that: 1)
she belongs to a protected group; 2) she was subjected to unwelcome harassment
based on her age and sex; 3) the harassment affected a term, condition, or privilege
of her employment; 4) her employer knew or should have known of the harassment;
and 5) the employer failed to take proper action. Okruhlik v. Univ. of Ark., 395 F.3d
872, 881 (8th Cir. 2005). Harassment must be both objectively and subjectively
offensive. We consider whether a reasonable person would find the environment
hostile and abusive in light of all the circumstances, including whether the conduct
“is physically threatening or humiliating, or a mere offensive utterance, and whether
it unreasonably interferes with an employee’s work performance.” Faragher v. City
of Boca Raton, 524 U.S. 775, 787-88 (1998) (quoting Harris v. Forklift Sys., 510 U.S.
17, 23 (1993)). Neither “simple teasing” and “offhand comments” nor “sporadic use
of abusive language, gender-related jokes, and occasional teasing” amount to
discriminatory changes in the terms and conditions of employment or actionable
harassment. Id. (citation omitted).
The record is not sufficient to support Peterson’s claim. Her supervisor made
regular references to “old ladies,” once did not allow her to participate in a training
session because it was “too hard to train old ladies,” and once commented that she
“didn’t have the right parts” to fill in shifts. A co-worker on one occasion
commented that women were lazy and were not needed at the jail. These appear to
be the type of isolated incidents, teasing and offhand comments which, while
offensive, do not reach the level of harassment. Gipson v. KAS Snacktime Co., 171
F.3d 574, 579-80 (8th Cir. 1999); Wallin v. Minn. Dep’t of Corrections, 153 F.3d
681, 688 (8th Cir. 1998). Accordingly, we affirm the district court’s grant of
summary judgment to the defendants on Peterson’s hostile work environment claim.
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III. Retaliation
To establish a prima facie case of retaliation, a plaintiff must show that she
engaged in statutorily protected activity, suffered an adverse employment action, and
that there was a causal connection between the adverse employment action and the
protected activity. Smith v. Riceland Foods, Inc., 151 F.3d 813, 818 (8th Cir. 1998);
Stevens v. St. Louis Univ. Med. Ctr., 97 F.3d 268, 270-71 (8th Cir. 1996). A
defendant must present evidence of a legitimate, non-retaliatory reason for its action
to rebut the plaintiff's prima facie case. The plaintiff must then show that the
defendant's proffered reason was a pretext for retaliation. An inference of a causal
connection between a charge of discrimination and termination can be drawn from
the timing of the two events, Riceland, 151 F.3d at 819-20; Smith v. St. Louis Univ.,
109 F.3d 1261, 1266 (8th Cir. 1997), but in general more than a temporal connection
is required to present a genuine factual issue on retaliation, Kiel v. Select Artificials,
Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (en banc). The district court found that
Peterson established a prima facie case of retaliation by showing that she engaged
in protected conduct,3 complaining about discrimination of her employer in a
November 20 conversation with Helmrich, and that she suffered an adverse
3
The district court concluded, citing Curd v. Hank’s Disc. Fine Furniture, Inc.,
272 F.3d 1039, 1041 (8th Cir. 2001), that Peterson was not engaged in protected
activity when complaining about harassment because no reasonable person could
have found that the comments she complained of created a hostile environment. We
believe that this is an overbroad reading of Curd. The court’s understanding of what
constitutes sexual harassment under Title VII is evolving; plaintiffs who reasonably
believe that conduct violates Title VII should be protected from retaliation, even if
a court ultimately concludes that plaintiff was mistaken in her belief. See
Crumpacker v. Kansas Dep’t of Human Resources, 338 F.3d 1163, 1171 (10th Cir.
2003). Peterson complained of repeated offensive comments by her supervisor. Two
specific incidents were connected to Peterson’s requests for training. While we
concluded that these events do not in fact create a hostile work environment, we are
not convinced that Peterson’s belief that they did was unreasonable.
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employment action when she was terminated on December 4th. The timing of the
termination, two weeks from the protected activity, is close enough to establish
causation in a prima facie case. Smith v. Allen Health Sys., Inc., 302 F.3d 827, 833
(8th Cir. 2002). Peterson also offered a note from Helmrich’s calendar for
November 20th, “Call Pam Johnson/ER . . . INTR-Dismissal.” We do not share the
County’s view that only speculation connects Peterson to this note. Peterson was an
interim employee, and was discharged shortly after this note and her conversation
with Helmrich. There is no evidence that other interim employees were discharged
either shortly before, or shortly after Peterson, and Helmrich himself has indicated
that he is not sure who this notation refers to. Whether this was more likely a
reference to Peterson, or some other employee is a determination better left to the
finder of fact. Peterson testified that Helmrich responded to her complaints of
discrimination by telling her “maybe you should be somewhere else.” Helmrich also
testified that his conversation with Peterson was heated, and that he was forced to
terminate the call. A jury could infer from this evidence that the jail administrator,
Tom Helmrich, was considering discharging Peterson on that day.
The County argues that Peterson has not shown that its legitimate, non-
discriminatory reasons for the termination–Peterson's missed shifts, attitude, and
performance problems–were a mere pretext for retaliation. Peterson notes that her
supervisors deny complaining about Peterson’s performance or attitude and deny
characterizing her performance problems as “serious.” In addition, Peterson suggests
that a jury might infer from the timing of both Lenz and Helmrich’s actions that the
County was retaliating against her. Peterson does not deny destroying an inmate
funds receipt, but argues that she was not trained on the procedure at the time, and
that her supervisor agreed that this was not a deliberate violation of policy, but rather
a training issue. He did not regard the matter as serious at the time. Peterson’s
supervisors, Dumbleton and Lenz, both deny complaining about her attitude or her
performance.
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Helmrich stated that Peterson had missed shifts that she previously accepted,
and that this was a factor in her termination. There is conflicting evidence about how
many shifts Peterson actually missed. Peterson only admits to missing
November 20th, because she was worried about the reaction to her harassment
complaint. She also argues that Tom Langevin missed several more shifts in the same
time period without being disciplined or terminated. See Riceland, 151 F.3d at 820
(citing testimony that other employees “were not investigated as closely or punished
as severely” in support of a finding of retaliation). Her supervisor, Dumbleton, did
not recall Peterson having any problem with missing shifts. If Peterson’s version of
events is accepted, a jury could reasonably find that the decision to terminate her was
made on November 20th, immediately following her conversation with Helmrich, and
that it was prompted by her complaint of harassment, and not any deficiency in her
performance.
After carefully reviewing the record, we conclude that there is sufficient
evidence to permit a reasonable fact finder to determine that Scott County retaliated
against Peterson on the basis of her complaints of discrimination and harassment.
IV. Qualified Immunity
Peterson’s § 1983 claim, and the defendants’ immunity claims rest on the facts
discussed above. Qualified immunity does not shield conduct that violates a clearly
established statutory or constitutional right that would be known to a reasonable
person. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The right to be free of
gender discrimination is clearly established. Marshall v. Kirkland, 602 F.2d 1282,
1298 (8th Cir. 1979). Peterson has raised a genuine issue of material fact regarding
the intentional gender discrimination; qualified immunity should not be granted to the
defendants.
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For the reasons stated above, the order of the district court granting summary
judgment for the defendants is affirmed in part and reversed in part. The case is
remanded to the district court for further proceedings consistent with this opinion.
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