1

The Honorable Susan Webber Wright, United States District Judge for the

Eastern District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-2274

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Sandra L. O’Brien; Donna E. Peterson, * 

*

Plaintiffs - Appellants, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Department of Agriculture, *

Mike Johanns, Secretary, *

* 

Defendant - Appellee. *

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Submitted: February 15, 2008

Filed: July 16, 2008

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Before MELLOY, GRUENDER, and SHEPHERD, Circuit Judges.

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SHEPHERD, Circuit Judge.

Appellants, Sandra L. O’Brien, a white employee of the United States

Department of Agriculture (USDA), Natural Resources Conservation Service

(NRCS), and Donna E. Peterson, a white former employee of NRCS, appeal the

district court’s1

 grant of the USDA’s motion for summary judgment on all their

claims. We affirm. 
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I.

We recite the facts in the light most favorable to Appellants, as the nonmoving

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

2007). Peterson served as NRCS Human Resources Officer in Little Rock, Arkansas.

Her immediate supervisor was Joseph Manuel, a white employee. Peterson’s second

line supervisor was Kalven Trice, the State Conservationist for Arkansas and the chief

NRCS official in the state. Trice is African-American. Peterson supervised O’Brien,

a Human Resources Specialist. O’Brien’s position entails rating and ranking job

applicants, including utilizing the Delegated Examining Unit (“DEU”) to rank

applicants from outside the Agency. 

In 2003, O’Brien was undergoing chemotherapy following several cancer

surgeries. Trice did not respond to O’Brien’s request to work from home in May

2003. Trice approved O’Brien’s second request in September 2003. On October 9,

2003, Trice held a meeting in which he informed O’Brien of what Trice perceived to

be deficiencies with the list O’Brien issued of the best qualified candidates for two

secretarial positions. O’Brien testified that Trice was upset that a friend of his, an

African-American, was not on the list of rated applicants. During the meeting, both

Trice and O’Brien raised their voices, and O’Brien was reduced to tears. On October

15, 2003, O’Brien filed an informal complaint of discrimination with the Equal

Employment Opportunity Commission (“EEOC”); Peterson provided a supportive

statement. Trice was aware of this. O’Brien lodged a formal EEOC complaint on

December 2, 2003. 

Following Appellants’ EEOC activity, Trice scrutinized Appellants’ travel

documents arising out of a training session they attended in San Diego, California and

issued a memorandum stating that they had acted improperly in relation to their travel

vouchers; did not allow Peterson to serve as acting state administrative officer though

Manuel had designated her to do so; suspended O’Brien’s DEU authority; sent partial
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files concerning the secretarial applicants to regional and national headquarters to be

reviewed; did not allow O’Brien to attend a training session in Texas; failed to

respond to Peterson’s request to work from home in a sufficient manner; denied

O’Brien a performance award; discussed suspending them; and attempted to institute

disciplinary action against them. In addition to the discrete events described above,

Appellants state, without specificity, that Trice: interfered with their work on a daily

to weekly basis; embarrassed, isolated, and ostracized them; closely scrutinized and

criticized their work; and increased their workload . 

O’Brien filed a second EEOC complaint on May 29, 2004. Peterson filed an

EEOC complaint on July 14, 2004. On April 30, 2005, Peterson retired; she was

replaced by a white employee. On June 13, 2006, Appellants filed this action against

the USDA under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to

2000e-17, claiming hostile work environment based on race discrimination and

retaliation. Peterson also alleges constructive discharge. 

The district court granted the USDA’s motion for summary judgment on all

claims. The court determined that Appellants failed to: (1) satisfy the affecting a term,

condition, or privilege of employment element of a prima facie case of hostile work

environment and (2) show a prima facie case of retaliation because they had not

proffered evidence that Trice’s treatment of them was materially adverse. The court

also concluded that Peterson’s constructive discharge claim failed as a matter of law

because the record did not contain evidence suggesting: (1) the requisite objectively

intolerable working conditions or (2) that Trice intentionally created the conditions

in an effort to cause Peterson to quit. Appellants bring this appeal. 

II.

“Mindful that summary judgment should be granted in employment

discrimination cases only if the evidence could not support any reasonable inference
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of discrimination, we review the district court’s grant of summary judgment de novo,

affirming if there is no genuine issue of material fact and [the USDA] is entitled to

judgment as a matter of law.” Elnashar, 484 F.3d at 1055. In conducting this review,

“[w]e view all the evidence in the light most favorable to the non-moving part[ies],

[Appellants], and draw all reasonable inferences in [their] favor.” Id.

A. Hostile Work Environment

A racially hostile work environment violates Title VII. 42 U.S.C. § 2000e2(a)(1); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). To make a prima facie

showing of such a claim, Appellants must demonstrate, among other things, that “the

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

484 F.3d at 1058. This requires offering facts that show the harassment to have been

“‘sufficiently severe or pervasive to alter the conditions of [Appellants’] employment

and create an abusive working environment’ as viewed objectively by a reasonable

person.” Carpenter v. Con-Way Cent. Express, Inc., 481 F.3d 611, 618 (8th Cir.

2007) (quoting Tademe v. Saint Cloud State Univ., 328 F.3d 982, 991 (8th Cir.

2003)). 

Appellants contend that the district court failed to consider the totality of the

circumstances, examining instead only a few instances of Trice’s alleged harassment.

Hostile work environment claims are assessed based on the totality of the

circumstances, Vajdl v. Mesabi Acad. of KidsPeace, Inc., 484 F.3d 546, 551 (8th Cir.

2007); however, Appellants seem to argue that the sheer number of alleged instances

of harassment must equate to a racially hostile work environment. We disagree. The

frequency of the alleged harassment is only one of the relevant factors in determining

whether it was sufficiently severe or pervasive. Harris, 510 U.S. at 23. We also

consider “its severity; whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes with an employee’s work

performance.” Id. Despite the hyperbolic and conclusory nature of Appellants’
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supporting affidavits, Trice’s actions, as alleged, lack the requisite severity to be

actionable. See Nitsche 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.”) (emphasis added). 

Basically, the allegations may be distilled to verbal harassment and increased

scrutiny. Therefore, we find entirely unconvincing Appellants’ attempt to analogize

this case to Jackson v. Flint Ink N. Am. Corp., 382 F.3d 869 (8th Cir. 2004) and

Mems v. City of St. Paul, Dept. of Fire & Safety Servs., 224 F.3d 735 (8th Cir. 2000),

two cases in which this court reversed the district court’s grant of summary judgment

for the employer on hostile work environment claims. The plaintiff in Jackson was

an African-American factory worker who faced his name being written in a shower

at his workplace with an arrow connecting his name with a burning cross and a KKK

sign. 382 F.3d at 870. Mems involved African-American firefighters who: were

required to leave the station promptly at the end of a shift and respond to all calls

wearing full protective gear, while white firefighters were not; endured the display of

racially offensive cartoons; and suffered the destruction of their property. 224 F.3d

at 738-39. 

Moreover, Appellants attempt to characterize this fact situation as at least the

kind of borderline case presented by Rorie v. United Parcel Serv., Inc., 151 F.3d 757

(8th Cir. 1998), similarly falls short. The Rorie Court stated, 

While we concede that the facts of this case are on the borderline of

those sufficient to support a claim of sexual harassment, we cannot say

that a supervisor who pats a female employee on the back, brushes up

against her, and tells her she smells good does not constitute sexual

harassment as a matter of law.

Id. at 762. Rorie involved physical touching, which distinguishes it from this case.
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Rather, the district court correctly analogized this case to Bradley v. Widnall,

232 F.3d 626 (8th Cir. 2000), where we found an employer’s conduct was not so

severe or pervasive to have affected a term or condition of employment despite the

employee’s “frustrating work situation” characterized by her being: excluded from the

decision-making process, treated with disrespect, subjected to false complaints, and

curtailed in her supervisory duties. Id. at 631-32; see Devin v. Schwan’s Home Serv.,

Inc., 491 F.3d 778, 788 (8th Cir. 2007) (finding allegations “amount[ed] to a

frustrating work environment rather than an objectively hostile work environment.”);

see also Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1159 (8th Cir. 1999)

(concluding that unfair criticism and being yelled at did not amount to actionable

harassment). Although increased scrutiny might, at some point, amount to a hostile

work environment, nothing in this record warrants such a finding. See Harbuck v.

Teets, 152 F. App’x 846, 847-48 (11th Cir. 2005) (unpublished per curiam) (holding

that employer’s conduct, including keeping workplace too cold, subjecting employee

to heightened scrutiny, and revealing some information disclosed in prior lawsuit to

her co-workers, did not constitute a hostile work environment); Martinelli v. Penn

Millers Ins. Co., No. 07-1956, 2008 WL 723973, *3 (3d Cir. March 18, 2008)

(unpublished) (finding that employer’s scrutiny of employee’s work, “while

unpleasant and annoying, did not create the sort of hostile work environment that

would satisfy Title VII’s anti-retaliation provision”). Because Appellants’ working

conditions were not so severe or pervasive that they rose to the level of a racially

hostile work environment, the district court properly granted summary judgment to

the USDA on this claim.

B. Constructive Discharge

Peterson asserts that the district court’s grant of summary judgment to the

USDA on her constructive discharge claim is improper because genuine issues of

material fact exist. Even though Peterson resigned, she may still have a Title VII

claim by demonstrating that she was constructively discharged. Carpenter, 481 F.3d
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at 616. To do so, she must first show that “a reasonable person in [her] situation

would find the working conditions intolerable . . . .” Anda v. Wickes Furniture Co.,

517 F.3d 526, 534 (8th Cir. 2008) (quoting Carpenter, 481 F.3d at 616). This burden

is “substantial,” Fisher v. Forestwood Co., 525 F.3d 972, 980 (10th Cir. 2008), as

“[t]he bar is quite high in [constructive discharge] cases.” Garrett v. Hewlett-Packard

Co., 305 F.3d 1210, 1221 (10th Cir. 2002); see Poland v. Chertoff, 494 F.3d 1174,

1184 (9th Cir. 2007) (stating that conditions must be “sufficiently extraordinary and

egregious” in order to establish constructive discharge (quotation omitted)).

Peterson premises her constructive discharge claim on the same allegations we

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

See Penn. State Police v. Suders, 542 U.S. 129, 147 (2004) (“A hostile-environment

constructive discharge claim entails something more [than an actionable hostile work

environment].”); Tran v. Trs. of State Colls. in Colo., 355 F.3d 1263, 1270-71 (10th

Cir. 2004) (recognizing that a plaintiff has a higher evidentiary burden when seeking

to establish a constructive discharge than an adverse employment action).

Accordingly, the district court properly granted summary judgment for the USDA. 

C. Retaliation

Appellants also claim that the district court erred in granting summary judgment

for the USDA on their retaliation claim because there is evidence, in the form of

affidavits of NRCS employees, that Trice treated people who engaged in protected

activity differently than those who had not. In order to establish a prima facie case of

retaliation, Appellants must produce evidence that the alleged retaliation was such that

“a reasonable employee would have found the challenged action materially adverse

. . . .” Smith v. Internat’l Paper Co., 523 F.3d 845, 848 (8th Cir. 2008) (quoting

Carrington v. City of Des Moines, 481 F.3d 1046, 1050 (8th Cir. 2007)). We first

note that Trice’s conduct at the October 9, 2003 meeting preceded Appellants’ EEOC
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We also note that the meeting occurred six years after Peterson’s 1997 EEOC

complaint and three years after O’Brien’s 2003 testimony on Peterson’s behalf such

that no inference of retaliation can be made between Appellants’ activities related to

the 1997 case.

3

Though Peterson said that Trice denied O’Brien a monetary award due to her

EEO activity in September 2004, this bare assertion and speculation as to Trice’s

motive does not create a genuine issue of material fact. Anda v. Wickes Furniture

Co., 517 F.3d 526, 531 (8th Cir. 2008).

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complaints that led to this case,2 and, therefore, cannot constitute retaliation for those

complaints. See Stewart v. Indep. Sch. Dist. No. 196, 481 F.3d 1034, 1042 (8th Cir.

2007). Furthermore, the remaining allegations, viewed as a whole, do not satisfy the

“significant harm” standard imposed by the materially adverse element. See Clegg

v. Ark. Dept. of Corr., 496 F.3d 922, 929 (8th Cir. 2007). Accordingly, the district

court properly granted summary judgment to the USDA on this claim.3

III.

For the reasons stated above, we affirm.

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