United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 08-1924

___________

Shelia Denise Smith, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Fairview Ridges Hospital, *

* 

Appellee. *

___________

Submitted: May 11, 2010

Filed: October 27, 2010

___________

Before BYE, MELLOY, and SHEPHERD, Circuit Judges.

___________

SHEPHERD, Circuit Judge.

Shelia Smith appeals the district court’s1

 adverse grant of summary judgment

on her discrimination claims against her former employer, Fairview Ridges Hospital

(“Fairview”). Smith contends that Fairview constructively discharged her after

subjecting her to a hostile work environment and retaliation, in violation of Title VII

of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. We affirm. 

1

The Honorable David S. Doty, United States District Judge for the District of

Minnesota.
I.

Construing the record in the light most favorable to Smith, see Johnson v.

AT&T Corp., 422 F.3d 756, 760 (8th Cir. 2005), in March 2005, Smith was one of

two African-American women employed as transportation aides for the Fairview

emergency room (“ER”) in Burnsville, Minnesota. Smith’s primary responsibility

was to transport patients from the ER to various other locations in the hospital. Her

duties also included taking patients’ vital signs, cleaning, and several other tasks

delegated to her by the ER charge nurse, health unit coordinators, doctors, and

technicians. 

During the summer of 2005, Patricia Pousard, Smith’s immediate supervisor,

approached Smith to discuss several concerns Pousard had with Smith’s conduct at

work, including that Smith: (1) often failed to answer her telephone, (2) took lunch

breaks at inappropriate times, (3) was rude to people on the telephone, (4) made too

many personal calls, and (5) took frequent cigarette breaks. On August 17, 2005,

Pousard prepared a Notice of Corrective Action (“NCA”)2

 to address these concerns;

however, pursuant to Smith’s request, Pousard deferred officially filing the NCA.

In September 2005, Smith’s performance review reflected positive comments

regarding her performance as a transportation aide. Nonetheless, on November 15,

2005, Pousard officially filed the aforementioned NCA. The NCA was dated August

17, 2005, and addressed the issues that had been discussed with Smith during the

summer. On November 28, 2005, Smith received another NCA, reflecting additional

concerns with her performance. As a result of the NCAs, Smith was subjected to

several limitations, including the requirement that she obtain permission from the

2

A Notice of Corrective Action (“NCA”) is a form used by Fairview to

document an employee’s misconduct or poor performance. After a written or verbal

advisement is provided to the employee, it is placed in the employee’s personnel file. 

-2-
charge nurse, the lead health unit coordinator, and an ER technician, prior to taking

any breaks. 

On December 16, 2005, Smith’s doctor wrote a letter to Fairview, indicating

that due to a medical condition, Smith could not push or pull more than 70 pounds or

lift more than 60 pounds for up to 3 months. As a result, Smith was unable to work

as a transportation aide and began picking up shifts as a nursing assistant. This

particular nursing assistant position did not entitle Smith to receive benefits. 

Consequently, Jenny Austerman, a payroll and benefits specialist at Fairview,

suggested that Smith take a leave of absence from her position as a transportation aide,

instead of working in the nursing assistant position, because Smith could maintain her

benefits during a leave of absence. Smith did not follow this advice and continued

working as a nursing assistant until her medical restrictions were lifted in early April

2006, when Smith resumed her former transportation aide position. Prior to returning

to her job, Smith filed a Notice of a Charge of Discrimination with the Equal

Employment Opportunity Commission (EEOC), alleging race discrimination and

retaliation based on several events occurring during her time at Fairview. 

In May 2006, Smith received a third NCA. This NCA reflected Smith’s

excessive use of unscheduled time off, which had increased beyond the ER’s

maximum allowance. During her time at Fairview, Smith applied for various

employment positions, such as the nursing assistant position in the operating room,

but she was not considered for any of these positions based on the number of NCAs

that were in her file. 

Smith continued working as a transportation aide in the Fairview ER until June

7, 2006, when she resigned. In July 2006, the EEOC issued a letter of determination

finding that there was “reasonable cause to believe that [Fairview] subjected [Smith]

to a hostile work environment and retaliated against her in violation of Title VII.” 

(Appellee’s App. 149.) On December 1, 2006, Smith filed this action pro se, alleging

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three Title VII claims: (1) hostile work environment, (2) constructive discharge, and

(3) retaliation.3

 The district court appointed counsel for Smith. During the initial

pleading stages, and throughout discovery, Smith alleged various instances of racial

discrimination including:

1. Soon after she began working at Fairview, a nurse asked Smith if she was

Puerto Rican because she spoke Spanish. Smith responded, “No, I’m black, look at

me I’m black.” (Id. at 40.)

2. In April or May 2005, Smith brought fried chicken to a Fairview potluck. Smith

overheard a nurse inquire as to who had brought the chicken and then receive the

response, “Who else?” (Id. at 32.) Smith then responded, “What? Only black people

eat chicken?” (Id.) Smith reported the incident to Pousard; however, no corrective

action was taken.

3. In May 2005, a picture of “Buckwheat,” a character from the Little Rascals

motion picture series who is an African-American child with braided hair, was posted

on a door in the ER, along with other employees’ childhood photographs. The caption

above the picture read, “Guess who this is?” (Id. at 31.) Smith inferred that the

Buckwheat picture was placed on the door to represent her because she had recently

braided her hair and was the only African-American employee whose childhood

picture was not already on the bulletin board. Smith reported the incident to Pousard;

however, no corrective action was taken. 

4. In the summer of 2005, a nurse, who was not Smith’s supervisor, grabbed a

patient chart from Smith’s hands and said, “[T]hese black aides don’t know what they

3

The district court interpreted Smith’s pro se complaint as asserting these three

claims, thus we do the same. 

-4-
are doing.” (Id. at 33.) Smith reported the incident to Pousard; however, no

corrective action was taken.

5. In September or October 2005, Smith brought a meal for lunch and upon

entering the break room with the food, a coworker complained about a fish odor. The

coworker was informed that Smith’s meal contained fish, to which the coworker

responded, “I smelled food that smelled better than that crap in my garbage.” Smith

then informed the coworker that it was an African dish. (Id. at 34-35.) 

6. In October 2005, Smith observed two coworkers using a work computer to view

an article4

 on the website, The Onion.

5

 The article discussed Hurricane Katrina and

contained an image of a helicopter hovering over houses that were flooded by the

hurricane. On the front porch of one of the houses, three people, appearing to be

African-American, were pictured. The caption under the picture stated, “FEMA

representatives call out to survivors, ‘Show us your tits for emergency rations!’” (Id.

at 138.) Smith reported the incident to Pousard; however, no corrective action was

taken.

7. In December 2005, Smith observed two coworkers using a work computer to

view the website, www.getoffended.com. Smith claimed that one of her coworker’s

body language and facial expressions had invited her to look at what they were

viewing. When she went to the screen, Smith observed two phrases written on t-shirts

4

In Smith’s pro se brief to this court, and in her deposition testimony, she states

that this incident involved a video. The video she described showed Coast Guard

rescuers telling black women to show them their “Big Black Boobs,” if they wanted

to be rescued. (Appellee’s Br. 3.) However, Smith’s attorney introduced a copy of

an article, not a video, in the district court. Because the record does not contain a

video, we only discuss the article. 

5

The Onion is a “political satire news source, which has a partnership with

CNN.” (Appellee’s Br. 10.)

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which stated: (1) “Guns don’t kill people, only angry minorities kill people,” and (2)

“How do you stop five niggers from raping a white girl? You throw them a

basketball.” (Id. at 36.) That evening, Smith went home and viewed the website

again, printing out several pages of its contents. Smith reported the incident to Sally

Haack, Fairview’s Human Resources Representative, who reminded the coworkers

that personal internet use at work was inappropriate. 

8. Once she returned to work in April 2006, Smith overheard a nurse say, “If she’s

unhappy here, why does she come back?” Another nurse responded, “Just like a dog,

you beat them and abuse them, they still come back. Just like any good runaway slave

would.” (Id. at 38.) Smith reported the incident to Pousard; however, no corrective

action was taken.

9. When Smith and an ER technician were discussing skin care, Smith suggested

to the technician that she could use a certain facial cleanser to help with acne, and the

technician replied, “People can’t see yours because you’re black.” (Id.) 

10. At one point, a coworker referred to Smith as “gal.” The coworker told Smith

that she called everyone “gal.” Smith informed the coworker that the word reflected

racial animosity. (Id. at 40-41.) 

11. After overhearing Smith and a hospital volunteer from Somalia discussing

ethnic foods and employment positions at Fairview, Smith’s coworker told the

volunteer that what she and Smith were discussing was inappropriate. Smith reported

the incident to Pousard; however, no corrective action was taken.

12. Teyona Brown, an African-American coworker, testified that she overheard two

white employees referring to Smith and stating, “She needs to go back to the ghetto

where she came from.” (Appellant’s Supp. App. 59.)

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The district court granted Fairview’s motion for summary judgment as to all of

Smith’s claims. With regard to the hostile work environment claim, the court

“examin[ed] the totality of the circumstances” and held that, assuming all of Smith’s

claims were true, the alleged harassment was not sufficiently severe or perversive as

to affect a term, condition, or privilege of Smith’s employment. As to Smith’s

retaliation claim, the court held that Smith was unable to demonstrate more than

temporal proximity between her NCAs and the complaints about her coworkers’

discriminatory behavior. Finally, with regard to constructive discharge, the court

noted that Smith presented no evidence that Fairview intended to force her to resign. 

Smith brings this appeal, arguing that the district court erred in granting summary

judgment in favor of Fairview on all three claims. 

II.

We review the district court’s grant of summary judgment de novo. See

Elnashar v. Speedway SuperAmerica, LLC, 484 F.3d 1046, 1055 (8th Cir. 2007). 

“[S]ummary judgment should be granted in employment discrimination cases only if

the evidence could not support any reasonable inference of discrimination,” and we

should affirm “if there is no genuine issue of material fact and [Fairview] is entitled

to judgment as a matter of law.” Id. However, we have previously noted that

“summary judgment should be used sparingly in the context of employment

discrimination and/or retaliation cases where direct evidence of intent is often difficult

or impossible to obtain.” Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1117 (8th

Cir. 2006); see also Torgerson v. City of Rochester, 605 F.3d 584, 593 (8th Cir. 2010)

(collecting cases stating same). Indeed, summary judgment is an improper remedy in

“very close” employment discrimination cases. Kehoe v. Anheuser-Busch, Inc., 995

F.2d 117, 120 (8th Cir. 1993). Notwithstanding this point, “no separate summary

judgment standard exists for discrimination or retaliation cases and . . . such cases are

not immune from summary judgment.” Wallace, 442 F.3d at 1118. 

-7-
A. Hostile Work Environment

Title VII prohibits a racially hostile work environment. 42 U.S.C.

§ 2000e-2(a)(1) (prohibiting an employer from discriminating “against any individual

with respect to [her] compensation, terms, conditions, or privileges of employment,

because of such individual’s race”). A hostile work environment exists when “the

workplace is permeated with discriminatory intimidation, ridicule, and insult, that is

sufficiently severe or pervasive to alter the conditions of the victim’s employment and

create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17,

21 (1993) (quotation omitted). The hostile work environment standard contains both

a subjective and an objective component, thus, Smith is required to make a showing

of a working environment “that a reasonable person would find hostile or abusive, and

one that [she] in fact did perceive to be so.” Faragher v. City of Boca Raton, 524 U.S.

775, 787 (1998) (citing Harris, 510 U.S. at 21-22). Among other things, to establish

a prima facie case of a hostile work environment, Smith must demonstrate that “the

harassment affected a term, condition, or privilege of [her] employment.” Elnashar,

484 F.3d at 1058. 

The district court stated it considered the totality of the circumstances. Smith

contends, however, that the district court improperly reviewed each incident of racial

hostility as an isolated event, instead of analyzing the cumulative effects of the

instances of alleged discrimination. In reviewing on appeal the grant of summary

judgment to Fairview on Smith’s hostile work environment claim, we apply a de novo

standard of review, and thus, we are not bound by the district court’s method of

analysis. See Elnashar, 484 F.3d at 1055 (standard of review). Further, while Smith

is correct that “[w]orkplace conduct is not measured in isolation; [and] ‘whether an

environment is sufficiently hostile or abusive’ must be judged ‘by looking at all the

circumstances,’” Bowen v. Mo. Dep’t of Social Servs., 311 F.3d 878, 884 (8th Cir.

2002) (quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001) (per

curiam)), it is also true that only incidents that “have a racial character or purpose” can

-8-
support Smith’s claim. Singletary v. Mo. Dep’t of Corrs., 423 F.3d 886, 893 (8th Cir.

2005) (quotation omitted). The stringent hostile work environment standard is

designed to “filter out complaints attacking the ordinary tribulations of the workplace,

such as the sporadic use of abusive language . . . and occasional teasing.” Faragher,

524 U.S. at 788 (quotation omitted); see Joens v. John Morrell & Co., 354 F.3d 938,

941 (8th Cir. 2004) (noting that Title VII does not “create a federal remedy for all

offensive language and conduct in the workplace”) (quotation omitted)). 

1.

Several of the allegations made by Smith—the comments regarding Smith’s

lunch, acne, and ability to speak Spanish; the coworker’s comment about Smith’s

conversation with the Somali volunteer; and the image on The Onion—at most only

tenuously relate to race. In fact, Smith “offers little more than speculation and

conjecture” that these incidents “had anything to do with race.” Anderson v. Durham

D&M, LLC, 606 F.3d 513, 519 (8th Cir. 2010) (quotation omitted). Because no

“reasonable person would find [these events] hostile or abusive,” Faragher, 524 U.S.

at 787, we hold that those allegations do not corroborate Smith’s claim that she

suffered from a hostile work environment even as they are considered in the totality

of the circumstances of Smith’s work environment. 

To support its conclusion that the district court erred in granting summary

judgment, the dissent primarily relies on Bowen, a case it characterizes as analogous

to this one. The dissent states that in Bowen, we “reviewed other allegations which

were not overtly racial” and included those allegations when deciding that “there was

enough evidence for a jury to consider whether the accumulation of the conduct was

severe enough to alter a term of the plaintiff’s employment.” This analogy of our

holding in Bowen to this case, however, is misleading, and further review of the facts

of the Bowen case will demonstrate why. 

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In that case, the plaintiff, Wanda Bowen, was hired as a case manager for the

Missouri Department of Social Services. Bowen, 311 F.3d at 880. Her immediate

supervisor was Francine Lee. From the beginning of Bowen’s employment, Bowen

and Lee had an acrimonious relationship. As Bowen was leaving work after one

especially hostile work day, she said “Good night, Francine,” and Lee responded,

“You kiss my ass, you white bitch!” Id. at 881. Following that incident, Bowen was

assigned to another supervisor, but continued to work in close proximity to Lee. 

Thereafter, Bowen endured “hostile stares” from Lee “[o]n a near daily basis.” Id.

When Lee learned that Bowen had brought a cake to work to share with others, Lee

threw the cake on the floor, stepped on it, and said to a nearby coworker, “You can

damn well tell her that I did it.” Id. When Bowen’s new supervisor complained to

Lee about Bowen, Lee referred to Bowen as a “menopausal white bitch” then Lee

immediately threatened Bowen with physical harm and ran towards Bowen, chasing

her back to her cubicle. Id. at 881-82. 

The dissent argues that these “other allegations”—Lee’s hostile stares at

Bowen, Lee’s destruction of Bowen’s cake, Lee’s threat of physical harm, and Lee’s

running at Bowen—lacked an “overtly racial” character but were considered in the

determination of “whether the accumulation of the conduct was severe enough to alter

a term or the plaintiff’s employment.” 

It is not the role of the courts to consider incidents in isolation, rather we are to

consider “all of the circumstances” of the workplace environment. Nor, however, are

we to develop a nexus among isolated incidents where no such nexus exists. See

Bradley v. Widnall, 232 F.3d 626, 632 (8th Cir. 2000) (affirming district court’s grant

of summary judgment on hostile work environment claim where plaintiff “was unable

to provide any evidence of a nexus between the alleged harassment and her protected

status”). This is what distinguishes Bowen from this case. In Bowen, the “other

allegations” had a nexus to overt racism as all of the “other allegations” were actions

by the same coworker who had called the plaintiff a “white bitch.” Further, two of the

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“other allegations”—the physical threat and the running towards the

plaintiff—happened within seconds of the coworker referring to the plaintiff as a

“menopausal white bitch.” 

The dissent also cites Diaz v. Swift-Eckrich, Inc., 318 F.3d 796 (8th Cir. 2003),

and Hathaway v. Runyon, 132 F.3d 1214 (8th Cir. 1997), as cases where the court

considered incidents that did not demonstrate an overt racial animus in determining

if a plaintiff was subjected to a hostile work environment. These cases, like Bowen,

are readily distinguishable. In Diaz, we held the various instances of “rude noises,

laughter, and statements that [plaintiff] was stupid” to be “part of a course of conduct

which [was] tied to evidence of discriminatory animus” because the offensive actions,

which included two physical assaults, came from coworkers who had made “early

comments . . . demean[ing] Hispanics and specifically referr[ing] to both Hispanics

and [the plaintiff] as ‘stupid.’” 318 F.3d at 800 (quotation omitted). In Hathaway, the

plaintiff experienced “snickers and noises”—which were described as a “purring or

growling noise made in the throat”—“for a period of eight months.” 132 F.3d at

1217, 1222. These offensive sounds came from a coworker and the coworker’s friend

after the coworker had made physical sexual advances toward the plaintiff such as

“hit[ting] [the plaintiff] on the buttocks with a clipboard” and “approach[ing] [the

plaintiff] from behind and squeez[ing] her buttocks while she was waiting for an

elevator.” Id. at 1217. 

In this case, several incidents that Smith argues support her claims of a racially

hostile work environment—the comments regarding Smith’s lunch, acne, ability to

speak Spanish; the coworker’s comment about Smith’s conversation with the Somali

volunteer; and the image on The Onion—have no obvious or overt racial animus. 

Further, unlike in Bowen, Diaz, and Hathaway, the incidents have no connection to

or nexus with an obvious or overt racial incident as they lack any congruency of

person or incident. These various allegations are “isolated incidents” that the Supreme

Court has held “will not amount to discriminatory changes in the terms and conditions

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of employment.” Faragher, 524 U.S. at 788 (quotation omitted). For that reason,

although considered as part of the “the totality of the circumstances,” these incidents

do not give rise to a change in Smith’s terms or conditions of her employment. 

2.

The picture of Buckwheat, the comment about fried chicken, and the reference

to the ghetto, although not all shown or recited directly to Smith, carry some

inferences that they were racially motivated, especially considering the context of the

events. See, e.g., Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir.

2007) (stating that references to “ghetto children” were “perhaps racially

inappropriate”); Simmons v. Océ-USA, Inc., 174 F.3d 913, 915 (8th Cir. 1999) (“The

term ‘Buckwheat’ is a racial slur when it is directed towards a black employee in the

context of an employment relationship.”). Furthermore, the evidence clearly indicates

that Smith experienced unwelcome racial harassment when exposed to several

comments that were explicitly racial in nature. Specifically, the material on the

website getoffended.com, the comment regarding “black aides,” and the references

about runaway slaves unambiguously permit an inference of racial animus. See,e.g.,

Canady v. Wal-Mart Stores, Inc., 440 F.3d 1031, 1035 (8th Cir. 2006) (noting that “in

certain contexts, the term ‘slave driver’ could be considered evidence of racial

animus”); Galdamez v. Potter, 415 F.3d 1015, 1024 n.6 (9th Cir. 2005) (noting that

“there are no ‘talismanic expressions’ of racial animus necessary to sustain a

harassment claim,” and noting that “racially charged ‘code words’ may provide

evidence of discriminatory intent by ‘send[ing] a clear message and carry[ing] the

distinct tone of racial motivations and implications.’” (quoting McGinest v. GTE Serv.

Corp., 360 F.3d 1103, 1117 (9th Cir. 2004))); Gipson v. KAS Snacktime Co., 171

F.3d 574, 579 (8th Cir. 1999) (inference of racial animus permissible after a “raciallytinged comment” that referred to someone in terms of “your kind”). Notwithstanding

the inappropriate nature of these events, when viewing the totality of circumstances,

including (1) “the frequency and severity of the discriminatory conduct,” (2) “whether

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such conduct was physically threatening or humiliating, as opposed to a mere

offensive utterance,” and (3) “whether the conduct unreasonably interfered with the

employee’s work performance,” Vajdl v. Mesabi Acad. of Kidspeace, Inc., 484 F.3d

546, 551 (8th Cir. 2007), we agree with Fairview’s assertion that the evidence does

not “satisfy the high threshold of actionable harm” necessary to constitute a hostile

work environment, Elmahdi v. Marriott Hotel Servs., Inc., 339 F.3d 645, 653 (8th Cir.

2003) (quotation omitted).

First, the incidents were relatively infrequent, occurring over the span of

Smith’s 12 months of active employment in the ER. See Bainbridge v. Loffredo

Gardens, Inc., 378 F.3d 756, 759-60 (8th Cir. 2004) (finding that racial remarks that

were “sporadic, no more than one per month,” over a period of two years, some of

which were “merely overheard by [the employee]” were not “so severe or pervasive

[to] alter[] the terms or conditions of his employment”); Johnson v. Bunny Bread Co.,

646 F.2d 1250, 1257 (8th Cir. 1981) (“More than a few isolated incidents of

harassment must have occurred. Racial comments that are merely part of casual

conversation, are accidental, or are sporadic do not trigger Title VII’s sanctions.”). 

But see Delph v. Dr. Pepper Bottling Co. of Paragould, Inc., 130 F.3d 349, 352, 354

(8th Cir. 1997) (upholding hostile work environment claim where the plaintiff had

been subjected to “a steady barrage of racial name-calling at the [defendant’s]

facility”); Ways v. City of Lincoln, 871 F.2d 750, 754-55 (8th Cir. 1989) (upholding

a finding of a hostile work environment where the plaintiff had identified

approximately 50 examples of racial harassment). 

Next, although we look to the frequency of harassment, it is but one factor of

our analysis and even infrequent conduct can be actionable if severe enough. See

Bowen, 311 F.3d at 884-85. The severity of the conduct here does not rise to the

requisite level needed to establish a hostile work environment. Most of the events

involved conduct that was not particularly severe, involved coworkers as opposed to

Smith’s direct supervisors, and could only be considered non-actionable, “mere

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offensive utterance[s].” Singletary, 423 F.3d at 893; see Nitche v. CEO of Osage

Valley Elec. Coop., 446 F.3d 841, 846 (8th Cir. 2006) (“To be actionable, the conduct

complained of must be extreme in nature and not merely rude or unpleasant.”); Carter

v. Chrysler Corp., 173 F.3d 693, 702 (8th Cir. 1999) (noting that we also consider the

“physical proximity to the harasser, and the presence or absence of other people”). 

In fact, the record is void of “any of the physically threatening or intimidating

behavior that we have found important in some actionable cases.” Anderson, 606

F.3d at 520 (citing Reedy v. Quebecor Printing Eagle, Inc., 333 F.3d 906, 909-10 (8th

Cir. 2003) (finding hostile work environment when a death threat was involved));

Bowen, 311 F.3d at 885 (“Lee’s serious misconduct and Bowen’s subjective fear of

bodily harm adequately demonstrate, for summary judgment purposes, that Lee’s

conduct was both objectively and subjectively hostile or abusive.”). 

In sum, the totality of the evidence, taken in the light most favorable to Smith,

does not support Smith’s contention that her workplace was “permeated with

discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive

to alter” her conditions of employment, and thus, Smith has not successfully

established a hostile environment claim. See Harris, 510 U.S. at 21. We conclude

that, although many of the coworkers’ “racially tinged” comments and actions were

“ill-chosen,” and “however ill-advised [their] attempts at racial humor, [the] conduct

did not give rise to an actionable claim of racial hostility.” Canady, 440 F.3d at 1035. 

B. Constructive Discharge

Although she resigned, Smith may bring a Title VII claim against Fairview as

long as she properly establishes constructive discharge. See O’Brien v. Dep’t of

Agri., 532 F.3d 805, 810 (8th Cir. 2008). To do so, Smith must show that she

“subjectively perceive[d] the environment to be abusive” and that “a reasonable

person would have found the conditions of employment intolerable and that

[Fairview] either intended to force [her] to resign or could have reasonably foreseen

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that [she] would do so as a result of its actions.” Fenney v. Dakota, Minn. & E. R.R.,

327 F.3d 707, 717 (8th Cir. 2003) (quotations omitted). This is a “substantial” burden

as the “bar is quite high” in these cases. O’Brien, 532 F.3d at 810-11 (quotations

omitted). Because we have already concluded that Smith has not successfully shown

that her hostile work environment claim should have survived summary judgment, her

constructive discharge claim also fails. See Penn. State Police v. Suders, 542 U.S.

129, 146-47 (2004) (“A hostile environment constructive discharge claim entails

something more [than an actionable hostile work environment].”); O’Brien, 532 F.3d

at 811 (“[Plaintiff] premises her constructive discharge claim on the same allegations

we found insufficient to establish a hostile work environment. As such, her claim

fails.”). 

C. Retaliation

Smith alleges that Fairview retaliated against her for complaining of her

coworkers’ discriminatory behavior by disciplining her with the three NCAs. “Title

VII prohibits retaliation against an employee who files charges of discrimination.” 

Thompson v. Bi-State Dev. Agency, 463 F.3d 821, 826 (8th Cir. 2006); accord 42

U.S.C. § 2000e-3(a). Because Smith did not present any direct evidence of retaliation,

we apply the burden-shifting analysis established in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), which requires that Smith first present a prima facie case

of retaliation. See Hughes v. Stottlemyre, 506 F.3d 675, 678-79 (8th Cir. 2007), cert.

denied, 128 S. Ct. 1741 (2008). Establishing a prima facie case of retaliation to defeat

summary judgment requires a showing that: “(1) [the plaintiff] engaged in statutorily

protected activity; (2) an adverse employment action was taken against [the plaintiff];

and (3) a causal connection exists between the two events.” Green v. Franklin Nat’l

Bank of Minneapolis, 459 F.3d 903, 914 (8th Cir. 2006) (quotation omitted). As the

district court assumed that Smith satisfied the first two elements of her prima facie

case, and because Fairview makes no argument otherwise, we limit our discussion to

the third prima facie element. 

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To establish the requisite causal connection, Smith relies almost exclusively on

the temporal proximity between her complaints of discrimination and her receipt of

the NCAs. Although “[a]n inference of a causal connection between a charge of

discrimination and termination can be drawn from the timing of the two events,”

generally “more than a temporal connection is required to present a genuine factual

issue on retaliation.” Peterson v. Scott Cnty., 406 F.3d 515, 524 (8th Cir. 2005).

“The cases that accept mere temporal proximity between an employer’s

knowledge of protected activity and an adverse employment action as sufficient

evidence of causality to establish a prima facie case uniformly hold that the temporal

proximity must be very close.” Breeden, 532 U.S. at 273 (quotation omitted). We

have held that a two-week period of time was close enough to establish causation. See

Smith v. Allen Health Sys., Inc., 302 F.3d 827, 833 (8th Cir. 2002) (“[The plaintiff’s]

family leave began on January 1 and [the superior] discharged [the plaintiff] on

January 14. These two events are extremely close in time and we conclude that under

our precedent this is sufficient, but barely so, to establish causation, completing [the

plaintiff’s] prima facie case.”); Sprenger v. Fed. Home Loan Bank of Des Moines, 253

F.3d 1106, 1113-14 (8th Cir. 2001) (noting that a “matter of weeks” between a

protected activity and an adverse employment action was sufficient to complete a

prima facie case of discrimination). But see Kipp v. Mo. Highway & Transp.

Comm’n, 280 F.3d 893, 897 (8th Cir. 2002) (noting that a two-month interval between

the employee’s termination and her retaliation complaint, by itself, was not enough

to establish a causal connection as a matter of law). Here, the temporal proximity

between Smith’s complaints of discrimination, EEOC filing, and her receipt of the

NCAs is tenuous at best, as the shortest interval between any of them is approximately

one month. Absent any additional evidence of causation, we conclude that Smith has

failed to establish this element of her prima facie case of retaliation.

Even if the temporal proximity was enough to establish a prima facie case of

retaliation, Fairview offered legitimate, nondiscriminatory reasons for giving Smith

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the NCAs. Once a plaintiff establishes a prima facie case of retaliation, “the burden

shifts to the defendant to articulate a legitimate, non-retaliatory reason for the adverse

action.” Macias Soto v. Core-Mark Int’l, Inc., 521 F.3d 837, 841 (8th Cir. 2008). If

the defendant presents such a reason, the plaintiff must prove that it is a pretext for

retaliation. Id. 

All of Smith’s NCAs reflect legitimate, employment-related concerns and do

not reflect false accusations or evidence that Fairview inappropriately papered Smith’s

file with minor infractions. See Kim v. Nash Finch Co., 123 F.3d 1046, 1061 (8th Cir.

1997) (holding that a “jury could have reasonably found that [the employer] placed

the written reprimand[s] in [the employee’s] personnel file in order to discredit [the

employee] when [there was an investigation of] his employment discrimination

charge”). Thus, the burden shifts to Smith to present evidence of pretext, and she has

failed to do so. Smith attempts to establish pretext by asserting that she was

disciplined more severely than her coworkers. Smith claims that she was treated

unfairly when she was given the NCAs for her performance, while her coworkers

faced no disciplinary actions for their discriminatory behavior towards her. While

“[i]nstances of disparate treatment can support a claim of pretext, . . . [Smith] has the

burden of proving that she and [her coworkers] were similarly situated in all relevant

respects.” King v. Hardesty, 517 F.3d 1049, 1063 (8th Cir. 2008) (quotation omitted); 

see also Putman v. Unity Health Sys., 348 F.3d 732, 733-34 (8th Cir. 2003) (noting

that to establish pretext, a plaintiff must “substantiate [her] allegations with sufficient

probative evidence [that] would permit a finding in [her] favor based on more than

mere speculation, conjecture, or fantasy”). Smith has produced no evidence that her

coworkers were “involved in or accused of the same offense and [were] disciplined

in different ways,” thus she has not shown that she and her coworkers “were similarly

situated in all relevant aspects.” King, 517 F.3d at 1063 (quotation omitted). 

Therefore, Smith’s retaliation claim fails. In conclusion, the district court properly

granted summary judgment to Smith on her retaliation claim. 

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IV.

Accordingly, we affirm the district court’s judgment.

 BYE, Circuit Judge, concurring in part and dissenting in part.

I concur in the opinion of the Court except with respect to Part II.A, which

concludes Shelia Smith did not present sufficient evidence to create a genuine issue

of material fact on her hostile work environment claim. Because I believe her

complaint and the record each do indeed support such a claim, I respectfully dissent.

As the majority notes, “[s]ummary judgment should be granted in employment

discrimination cases only if the evidence could not support any reasonable inference

of discrimination” and should only be affirmed if the employer is entitled to judgment

as a matter of law. Elnashar v. Speedway SuperAmerica, LLC, 484 F.3d 1046, 1055

(8th Cir. 2007).

The fourth element of a hostile work environment claim under Title VII

requires the plaintiff to provide sufficient evidence showing “the harassment affected

a term, condition, or privilege of his employment.” Id. at 1058. In order to satisfy this

prong, Smith must provide sufficient evidence that she reasonably perceived the racial

harassment was “severe or pervasive.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 22

(1993). However, she does not need to show there was a physical manifestation of the

harm, so long as there is evidence the working environment was affected in some way. 

Id. at 21. In deciding whether this element is satisfied, courts must look at “all the

circumstances” to determine “whether an environment is sufficiently hostile or

abusive.” See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001). The

majority concludes Smith did not present sufficient evidence “the harassment affected

a term, condition, or privilege of [her] employment.” Elnashar, 484 F.3d at 1058. I

disagree.

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I believe the district court improperly reviewed incidents of racial hostility by

separating Smith’s allegations into three categories instead of viewing the “totality of

the circumstances.” Anderson v. Durham D&M, L.L.C., 606 F.3d 513, 519 (8th Cir.

2010). At summary judgment, the district court categorized the incidents alleged by

Smith into three groups.6

 In doing so, the court looked at each allegation of

harassment in isolation instead of looking at “the accumulation of abusive conduct”

to make its summary judgment determination. See Hathaway v. Runyon, 132 F.3d

1214, 1222 (8th Cir. 1997). It is necessary that courts look at “all the circumstances,”

including those which are not explicitly racial in nature, when analyzing allegations

of workplace harassment. Breeden, 535 U.S. at 270. See also Hathaway, 132 F.3d at

1222 (“Not every aspect of a work environment characterized by hostility and

intimidation need be explicitly sexual in nature to be probative.”).7

 In this case, the

majority focuses its analysis only on the most flagrant instances of racial animus to

the exclusion of numerous other incidents. In prior cases, however, when there was

evidence of overt harassment, we looked at all allegations, not just the incidents

demonstrating overt racial animus, to determine whether the incidents were frequent

or severe enough to affect a term, condition, or privilege of employment. See Diaz

v. Swift-Eckrich, Inc., 318 F.3d 796, 799 (8th Cir. 2003) (finding a triable issue of fact

on whether harassment altered a term of employment where evidence was presented

6

The categories were (1) incidents tenuously related to race and not evincing

racial animus; (2) incidents giving rise to an inference that they were racially

motivated; and (3) incidents demonstrating overt racial animus.

7

The majority cites Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)

for the proposition that the stringent hostile work environment standard is designed

to “filter out complaints attacking the ordinary tribulations of the workplace.” 

However, this language refers to the claim as a whole instead of specific incidents

reviewed piecemeal. The Supreme Court clearly articulated the sufficiency of a claim

is judged “by looking at all the circumstances” and not only reviewing the allegations

found to be explicit harassment. Id.

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of overtly racial remarks along with actions such as making “rude noises, laughter,

and statements that [plaintiff] was ‘stupid’”); Eich v. Bd. of Regents for Cent. Mo.

State Univ., 350 F.3d 752, 759 (8th Cir. 2003) (“The humiliating and intimidating

effect of the snickers and noises on [plaintiff] could have been interpreted by the jury

to be caused by the nexus between that behavior and [the harasser's] earlier sexual

overtures.”); Bowen v. Mo. Dep’t of Soc. Servs., 311 F.3d 878, 884 (8th Cir. 2002)

(finding a few explicitly racial actions coupled with frequent hostile stares sufficient

to create a triable issue of fact on whether the conduct altered a term of employment);

Hathaway, 132 F.3d at 1222 (finding that other acts in the workplace can be used as

a nexus with overt acts of harassment to establish a prima facie case).8

 Since it is

essential to a hostile work environment claim to show that conduct is either “severe

or pervasive,” the district court failed to acknowledge other allegations can form the

nexus to establish a prima facie case. See Hathaway, 132 F.3d at 1222. As such, I

believe the district court improperly reviewed the allegations as isolated events instead

of considering “the accumulation of the abusive conduct.” Id.

In viewing the totality of the circumstances, I would conclude Smith created a

trial-worthy issue on whether the harassment Smith alleges altered a term, condition,

or privilege of employment. My review of the record leads me to conclude Smith

produced sufficient evidence to create a fact issue as to whether “the cumulative

effect” of the workplace harassment was “severe or pervasive” to support her claim. 

See Bowen, 311 F.3d at 885.

8

The majority states that only instances which “have a racial character or

purpose” can be used to support a hostile work environment claim. Singletary v. Mo.

Dep’t of Corrs., 423 F.3d 886, 893 (8th Cir. 2005). However, as recognized in Diaz,

Eich, Bowen, Hathaway, and other cases, whether a particular incident is racial in

character is a question properly submitted to the jury, so long as the evidence as a

whole permits such an inference.

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The facts in this case are similar to those in Bowen, where an employee suffered

overt racial harassment on a few occasions. Id. The incidents included: (1) a coworker calling plaintiff a “white bitch” and a “menopausal white bitch;” and (2) other

employees telling the plaintiff that the co-worker did not like white people. Id. We

also reviewed other allegations which were not overtly racial. Id. Such incidents

included: (1) the co-worker throwing a cake which the plaintiff made on the floor; (2)

hostile stares by the co-worker toward the plaintiff; (3) the co-worker making threats

of physical beating; and (4) the co-worker running at the plaintiff. Id. All of these

incidents occurred within the plaintiff’s two years of employment. Id. We found that

although the “conduct towards [plaintiff] was not frequent, neither was it infrequent”

and there was enough evidence for a jury to consider whether the accumulation of the

conduct was severe enough to alter a term of the plaintiff's employment. Id.

Comparing Smith’s case to Bowen, some of the harassment endured by Smith

was overtly racial. For example, (1) the picture of Buckwheat posted with other

employees’ childhood photographs with a caption saying “Guess who this is?”; (2)

employees stating Smith “needs to go back to the ghetto;” (3) overtly racist t-shirts

displayed for Smith by other employees on getoffended.com; (4) a nurse stating “these

black aides don’t know what they are doing;” and (5) a nurse stating “[j]ust like a dog,

you beat them and abuse them, they still come back. Just like any good runaway

slave.” Like Bowen, Smith also alleged incidents which were not explicitly racial. 

Incidents included: (1) a co-worker stating Smith’s conversation with a Somali

volunteer about ethnic food was “inappropriate;” (2) co-workers showing Smith the

image of three people who appeared to be African-American on The Onion with the

caption “Show us your tits for emergency rations;” (3) Smith bringing ethnic food to

work and a co-worker stating that “crap in [the co-workers] garbage” smelled better;

(4) a co-worker commenting that “[p]eople can’t see [Smith’s acne] because [she’s]

black;” and (5) a co-worker’s comment on Smith’s ability to speak Spanish. The

determination of whether the sum of the incidents alleged by Smith create a hostile

work environment should be left to the fact-finder because “[o]nce there is evidence

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of improper conduct and subjective offense, the determination of whether the conduct

rose to the level of abuse is largely in the hands of the jury.” Howard v. Burns Bros.,

Inc., 149 F.3d 835, 840 (8th Cir. 1998). Viewing the allegations together, I would

conclude the evidence presented by Smith creates a “reasonable inference” that the

cumulation of racial animus altered a term of Smith’s employment.

In attempting to distance this case from the holding in Bowen and other similar

cases, see Diaz, 318 F.3d 796; Hathaway, 132 F.3d 1214, the majority attempts to read

into the hostile work environment claim a requirement that all incidents of

mistreatment possess “congruency of person or incident.” Ante at 11. Whatever the

precise meaning of this requirement, imposing this additional burden on plaintiffs in

hostile work environment cases is not supported by law. Although it is true that

plaintiffs must establish a causal nexus between the harassment and their membership

in the protected group and, separately, appreciable effect of harassment incidents on

a term, condition, or privilege of their employment, no cases require them to establish

that all harassment emanated from the same individual or occurred immediately

following the most palpable instances of harassment.

Even to the extent the majority interprets the law to require “congruency of

person or incident” to explain why some seemingly innocuous conduct has racial

undertones to a particular plaintiff, application of this requirement to dismiss this case

violates this court’s obligation to view all the evidence in the light most favorable to

the nonmoving party, see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986), and use summary judgment in employment discrimination cases

sparingly, Wallace, 442 F.3d at 1117. Smith experienced several instances of

harassment with varying degree of racial animus. But even with regard to the least

culpable of these instances, which were classified by the district court as “tenuously

related” to race, a rational trier of fact could conclude they were related to Smith’s

membership in the protected group. The point is that the court cannot completely

disregard these instances merely because they are not the strongest card in the

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plaintiff's hand. For fear of consider weaker incidents “in isolation,” the majority

completely disregards them. Rather than draw its own conclusions on how offensive

or racially insensitive these instances are to a reasonable person, the majority must

leave this task to the jury.

The majority also cites Anderson for the proposition the harassment alleged by

Smith was not severe because it is void of “physically threatening or intimidating

behavior.” 606 F.3d at 520. However, particularly egregious examples of harassment

should not mark the boundary of actionable harm. See Harris, 510 U.S. at 22 (holding

the most egregious examples do not determine when an environment is sufficiently

hostile or abusive). Additionally, the severity of a work environment should not

simply be measured by a single event which is extreme in nature, but also by the

cumulation of abusive conduct toward an employee. See Hathaway, 132 F.3d at 1222. 

There is clear evidence that Smith was harassed on several occasions because of her

race. Since this is certainly offensive conduct, the assessment of whether the

harassment created a hostile work environment should be left in the hands of the jury. 

See Howard 149 F.3d at 884.

In sum, I believe the evidence provided by Smith is sufficient to create a jury

question on whether the harassment at her workplace altered a term of her

employment. Therefore, I would reverse the district court’s grant of summary

judgment to Fairview on Smith’s hostile work environment claim, and remand this

case for trial.

______________________________

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