Lesa Davis v. KARK-TV , 421 F.3d 699 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-3606
___________
Lesa Davis, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas
*
KARK-TV, INC., doing business as *
Morris Multimedia; Nexstar *
Broadcasting Inc., originally sued as *
KARK-TV, Inc., doing business as *
Nexstar Communications, Inc., *
doing business as KARK-TV, Inc. *
*
*
Defendant - Appellees. *
___________
Submitted: May 13, 2005
Filed: August 30, 2005
___________
Before LOKEN, Chief Judge, HANSEN, and MELLOY, Circuit Judges.
___________
MELLOY, Circuit Judge.
Lesa Davis appeals the district court’s1 grant of summary judgment in favor of
KARK-TV on her claims of race discrimination and retaliation under 42 U.S.C. §
1981, Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act
of 1991, codified at 42 U.S.C. § 2000e, and the Arkansas Civil Rights Act of 1993
(“ACRA”), Ark. Code. Ann. §§ 16-123-101 et. seq. We affirm.
I.
Lesa Davis was hired at KARK-TV in 1977 as a part-time camera operator.
Shortly thereafter, she started to work for United Parcel Service (“UPS”). She
remains employed by UPS. In 1979, Davis became a full-time camera operator at
KARK-TV on the nightshift. Not long after, Davis began to perform audio duties and
was promoted to Production Coordinator. As Production Coordinator, Davis was
responsible for ordering supplies, booking time for clients to make commercials, and
assisting the Production Manager. As part of this promotion she began to work the
day shift.
In the mid-1980s Morris Multimedia purchased KARK-TV. Morris made a
number of changes at KARK-TV including starting a morning program. Davis was
assigned to do graphics and audio for that show. As part of a normal annual review,
in 1994, Davis was offered a one percent raise. She informed the station that she did
not want to receive a raise if it was only one or two percent. Although she accepted
a two and one half percent raise later that year, she continued to refuse raises of two
percent or less. In 1997, Troy Thompson became the Production Manager at the
station. She repeated her request to not receive a raise of two percent or less to
Thompson. She told Thompson that she did not want a raise of less than two percent
because it would put her in a higher tax bracket and would reduce her take-home pay.
1
The Honorable Susan Webber Wright, Chief Judge, United States District
Court for the Eastern District of Arkansas.
-2-
In 1998, KARK bought computers so the employees would be better able to
produce graphics. By 2000, the station’s news directors requested more graphics for
their programs. Davis testified that, as a result of the increased demands from the
news directors, it became a problem for her to complete all the graphics work and
then produce the audio. In addition, Thompson believed he should be responsible for
some of the tasks being done by Davis, such as scheduling personnel and commercial
production. As a result, Thompson gave Davis a choice of producing the audio or
generating the graphics for the morning show. Davis chose to focus exclusively on
the graphics.
In August 2001, Rick Iler became the Director of News Operations at KARK-
TV. In Spring 2002, the station moved into a new building. As part of the move, the
station restructured its operations. Iler wanted graphics to become part of the news
department because most of the graphics produced were news graphics. After the
decision was made to move graphics from the production department to the news
department, Iler met with Thompson and Carl Bruce, the station’s General Manager,
to determine how the move would impact employees. They determined that two
employees, Trey Williams and Brian Stafford, should automatically be moved to the
news department from the production department because they were graphic artists
who were hired to build graphics.
The station decided to transfer two of the three remaining graphics personnel,
who were known as character generators, to the news department. This group
consisted of Lesa Davis, Kim Pearson, and Annette Gatlin. These employees
operated the system and pulled up graphics for the director during the show.
Although Thompson testified that he was in the process of training them to do more
graphics, their primary job was to run the graphics machine during the news cast.
Their jobs, as opposed to the graphic artist positions, were fairly interchangeable. In
other words, on any given day a person might run a camera, audio, or operate a
character generator. The station moved Annette Gatlin and Kim Pearson, white
-3-
females, to the news department. Davis was assigned to run the teleprompter with the
promise that she would be moved to camera operator on the morning show.
In June 2003, Nexstar Broadcasting Group, Inc. (“Nexstar”) purchased KARK-
TV. Nexstar brought in Perry Chester to be the General Manager. Chester evaluated
the jobs at the stations and concluded that three positions should be eliminated:
graphic artist, teleprompter, and website developer. The graphic artist and website
developer employed by the station were terminated. Instead of terminating Davis,
Chester offered her a position as a camera operator. Davis told Chester that the new
position, which required working in the evening, created a conflict with her position
at UPS. Chester advised Davis to check with UPS to see if an arrangement could be
made to avoid any scheduling conflicts. Davis accepted the camera operator position
and was given a raise as part of that transfer to $10.00 per hour. Davis worked the
camera operator job for approximately two weeks and then took a leave of absence
for foot surgery. She did not return to work at KARK-TV.
Davis filed a claim of race discrimination against Morris Multimedia for failing
to promote her to the position of graphic artist with the Equal Employment
Opportunity Commission (“EEOC”). She received a right-to-sue letter from the
EEOC on August 26, 2002. Davis later filed a claim of race discrimination against
Nexstar for failing to promote her to the position of graphic artist. She received a
right-to-sue letter from the EEOC pertaining to this claim on April 29, 2004. Davis
filed a lawsuit on November 22, 2002 against Morris Multimedia. She amended her
complaint to add Nexstar as a defendant on November 25, 2003. Davis filed a second
amended complaint on July 14, 2004 to add a claim of retaliation against Nexstar.
Davis alleges that Morris discriminated against her on the basis of race when
she was not given an opportunity to interview for the for the position of graphic artist
in the news department, a promotion, and for Morris’s refusal to give her raises.
Davis asserts that Nexstar discriminated against her when it failed to place her in the
-4-
position of graphic artist or audio operator on the morning show when it purchased
KARK-TV. She claims Nexstar’s actions when it moved her from the morning news
show to the evening show as a camera operator were in retaliation for her filing
complaints against KARK-TV and amounted to a constructive discharge.
II.
We review de novo the district court’s grant of summary judgment. Pope v.
ESA Services, Inc., 406 F.3d 1001, 1006 (8th Cir. 2005). Summary judgment is
appropriate if there is “no genuine issue as to any material fact and the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). “The burden of
demonstrating that there are no genuine issues of material fact rests on the moving
party.” Winthrop Resources Corp. v. Eaton Hydraulics, Inc., 361 F.3d 465, 468 (8th
Cir. 2004). We review the evidence and the inferences that reasonably may be drawn
from the evidence in “the light most favorable to the nonmoving party.” Gilmore v.
AT&T, 319 F.3d 1042, 1046 (8th Cir. 2003).
We analyze Title VII disparate treatment claims, § 1981 claims, and ACRA
claims in the same manner. Henderson v. Simmons Food, Inc., 217 F.3d 612, 615 n.3
(8th Cir. 2000) (noting that claims premised under the ACRA are analyzed in the
same manner as Title VII claims); Kim v. Nash Finch Co., 123 F.3d 1046, 1056 (8th
Cir. 1997) (noting that the McDonnell Douglas analysis is applicable to Title VII
disparate treatment and § 1981 claims). We employ the familiar McDonnell Douglas
burden-shifting framework to conduct our analysis. Turner v. Honeywell Fed. Mfg.
& Techs., LLC, 336 F.3d 716, 720 (8th Cir. 2003) (citing McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 801-04 (1973)). “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.” Pope, 406 F.3d at 1006-07 (citations
omitted). Once a plaintiff successfully establishes a prima facie case, the burden
-5-
shifts to the employer to articulate “a legitimate, non-discriminatory reason for its
adverse employment action.” Williams v. Ford Motor Co., 14 F.3d 1305, 1309 (8th
Cir. 1994). If the employer meets its burden, “the presumption of discrimination
disappears, requiring the plaintiff to prove that the proffered justification is merely
a pretext for discrimination.” Pope, 406 F.3d at 1007. The plaintiff has the burden
of persuasion at all times. Id.
A. Claim of Discrimination for Failure to Promote Against Morris
To establish a prima facie case of discrimination, Davis must show that: (1) she
is a member of a protected class; (2) she met the legitimate expectations of her
employer; (3) she suffered an adverse employment action; and (4) similarly situated
employees that were not members of the protected class were treated differently.
Gilmore, 319 F.3d at 1046.
Davis, as an African-American, is a member of a protected class. We will
assume for purposes of this opinion, as the district court did, that Davis can establish
the rest of her prima facie case against Morris, although we are by no means certain
that she has done so. Given this assumption, the burden shifts to the employer to
proffer a legitimate, non-discriminatory reason for not selecting Davis for the graphic
artist position. Williams, 14 F.3d at 1309.
Morris offered as a legitimate, non-discriminatory reason for her non-selection
that she was less qualified than the other two candidates. One reason she was not
selected was that the station believed that Davis was not as fast at learning how to
produce and display graphics. This skill was significant in the station’s decision
because the station was looking to increase the amount of graphics it used during its
newscasts. Rick Iler stated:
-6-
[p]robably the number one thing that popped out for me from listening
to Troy’s feedback and just from my observations, was speed. She was
not very fast. And I knew that with the new news cast I had to have
someone that would be able to pull up several different graphics, you
know, at one time, would be able to learn and grasp the ability to build
several different graphics because the position has always been, the
position that she was in was just running a machine and you ran them
from the night before . . . . This now would be actually creating all new
graphics for a brand new show every single morning and from my
observation and feed back from her direct manager, I did not feel that
the speed in which she could get things done was going to work for that
position. . . . I also took into consideration, like I said, feedback from
Troy. Troy told me she was a good employee but that considering what
I needed, knowing what expectations I had of these news shows, that his
feedback was simple, she’s a good employee but with what you’re
wanting to do he didn’t think that she could do [the job].
Morris also asserted that it did not select Davis for the position because it did not find
her to be sufficiently dependable.
“The burden to articulate a nondiscriminatory justification is not onerous, and
the explanation need not be demonstrated by a preponderance of the evidence.”
Floyd v. Mo. Dept. of Soc. Servs., Div. of Family Servs., 188 F.3d 932, 936 (8th Cir.
1999). Morris’s stated justifications meet its burden. Accordingly, the burden shifts
to Davis to produce evidence sufficient to create a genuine issue of material fact
whether Morris’s proffered nondiscriminatory reason was a pretext for
discrimination. Pope, 406 F.3d at 1007.
Davis fails to produce any evidence of pretext. Instead, Davis appears to argue
that she was better qualified than the other candidates who were selected. In
particular, Davis appears to argue that the people chosen, Pearson and Gatlin, were
less qualified because they had spent less time as graphic operators. We cannot “sit
as super-personnel departments reviewing the wisdom or fairness of the business
-7-
judgments made by employers, except to the extent that those judgments involve
intentional discrimination.” Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th
Cir. 1999). Here, there is no evidence that the persons selected were not qualified for
the job. Further, seniority was never listed as a consideration in who would perform
graphics in the news department. Thus, given the lack of evidence of pretext from
Davis, we will not second guess Morris’s hiring decision.
Davis also appears to argue that discrimination by KARK-TV in training led
to the differences in qualifications. This argument fails because Davis does not
provide any evidence of a denial of training. Accordingly, we conclude that the
district court correctly held that Davis failed to demonstrate that Morris’s proffered
justification for not promoting Davis was a pretext for discrimination. Pope, 406 F.3d
at 1007.
B. Claim of Pay Raise Discrimination Against Morris
Davis claims she was denied raises given to Pearson and Gatlin, white
employees. Even if we again assume that Davis can establish a prima facie case, she
has no evidence of pretext in regards to Morris’s legitimate, non-discriminatory
justification for its decision.
Morris’s justification for not giving Davis raises was that she stated in 1994
that she did not want a raise if it was only one or two percent2 and she had not earned
a larger raise after 1994. Troy Thompson testified that he did not recommend Davis
for a larger raise because Davis made more mistakes in her job performance than
other employees, Davis had failed to attend mock news casts at the new KARK-TV
facility, a requirement of her job, and he had taken over many of her duties. Further,
2
There is nothing in the record to indicate that Davis changed her mind and was
willing to accept a one or two percent raise.
-8-
he stated that she had a poor attitude toward her work. Davis only points out that
Pearson and Gatlin received raises of more than one percent, she does not identify
workers who received raises larger than the two percent. The only raise larger than
two percent that she identifies was a two and one-half percent raise she received, and
accepted, in 1994. Davis offers no evidence that race was a motivation for denying
her pay raises. Accordingly, we conclude that the district court correctly found that
Davis failed to demonstrate that Morris’s stated legitimate, non-discriminatory reason
for not offering her a raise was pretextual.
C. Constructive Discharge Claim Against Nexstar
Davis alleges that her transfer amounted to a constructive discharge because
the schedule conflicted with her UPS job. “To show ‘constructive discharge, a
plaintiff must show more than just a Title VII violation by her employer.’” Breeding
v. Arthur J. Gallagher and Co., 164 F.3d 1151, 1159 (8th Cir. 1999) (quoting Phillips
v. Taco Bell Corp., 156 F.3d 884, 890 (8th Cir. 1998). “A constructive discharge
occurs when an employee resigns after the employer has created an intolerable
working environment in a deliberate attempt to compel such a resignation. Tatum v.
City of Berkeley, 408 F.3d 543, 551 (8th Cir. 2005).
In this case, Davis cannot show that her transfer constituted an adverse
employment action or that Nexstar created an intolerable working environment. This
court has stated:
An adverse employment action is a tangible change in working
conditions that produces a material employment disadvantage.
Termination, reduction in pay or benefits, and changes in employment
that significantly affect an employee’s future career prospects meet this
standard, but minor changes in working conditions that merely
inconvenience an employee or alter an employee’s work responsibilities
do not.
-9-
Sallis v. Univ. of Minn., 408 F.3d 470, 476 (8th Cir. 2005) (internal citations
omitted). The elimination of Davis’s teleprompter position and her transfer to a
camera operator position involved only minor changes in working conditions and no
reduction in pay or benefits. In fact, Davis admitted that the camera operator position
was perceived as a higher-level position. Further, as part of the transfer Davis was
given a seven percent raise. Thus, the transfer did not constitute an adverse
employment action.
Further, Nexstar did not create an intolerable work environment. There is no
indication Nexstar acted with the intention of forcing Davis to resign or that she
intended to do so as a result of Nexstar’s actions. Davis admits she did not have any
problems with her coworkers, Thompson, or her treatment by Chester. Her only
complaint was that she had to work the evening shift, which conflicted with her job
at UPS. When Davis informed Chester that the new position conflicted with her
position at UPS, Chester advised her to check with UPS and get back to him to see
if an arrangement could be made to accommodate Davis, UPS, and the station.
Rather than force her out, Chester’s actions demonstrate a desire to work with Davis
to resolve the issue so that she could remain at the station.
Davis quit rather than work with KARK-TV to find a solution that resolved her
concerns. “An employee who quits without giving [her] employer a reasonable
chance to work out a problem has not been constructively discharged.” Tidwell v.
Meyer’s Bakeries, Inc., 93 F.3d 490, 494 (8th Cir. 1996). Accordingly, Nexstar’s
actions in transferring Davis do not constitute a constructive discharge.
D. Retaliation Claim Against Nexstar
Finally, Davis asserts that Nexstar’s decision to eliminate her teleprompter
position was in retaliation for filing a complaint against Morris. To establish a prima
facie case of retaliation, Davis must show that “[she] engaged in protected conduct,
-10-
that [she] suffered an adverse employment action, and that the adverse action was
causally linked to the protected conduct.” Griffith v. City of Des Moines, 387 F.3d
733, 738 (8th Cir. 2004). Without commenting as to the other elements that must be
proven, we conclude that Davis failed to show that she suffered an adverse
employment action. As discussed above, her transfer from the teleprompter position
to camera operator was not an adverse employment action given that it was
considered a higher-level position, it came with a raise, and the evidence suggests that
the station was willing to work with Davis to avoid scheduling conflicts with her job
at UPS. Accordingly, Davis fails to establish a prima facie case of retaliation by
Nexstar.
III.
For the foregoing reasons, we affirm the judgment of the district court.
______________________________
-11-