United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-3606

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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. *

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Submitted: May 13, 2005

 Filed: August 30, 2005 

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Before LOKEN, Chief Judge, HANSEN, and MELLOY, Circuit Judges.

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MELLOY, Circuit Judge.
1

The Honorable Susan Webber Wright, Chief Judge, United States District

Court for the Eastern District of Arkansas.

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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.
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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 KARKTV. 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
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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 KARKTV. 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
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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
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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:
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[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
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.

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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,
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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.
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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,
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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.

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