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

___________ No. 07-2274

___________ 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. *

___________ Submitted: February 15, 2008 Filed: July 16, 2008

___________ Before MELLOY, GRUENDER, and SHEPHERD, Circuit Judges.

___________ 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. Pete rson, a white former empl oyee of NRCS, appeal the district court’s 1 grant of the USDA’s motion for summary judgment on all their claims. We affirm.-2- 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 Res ources Officer in Little Rock, Arkansas. Her immediate supervisor was Joseph Manue l, 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 Dele gated Examining Unit (“DEU”) to rank applicants from outside the Agency.

In 2003, O’Brien was undergoing ch emotherapy following several cancer surgeries. Trice did not respond to O’Br ien’s request to work from home in May 2003. Trice approved O’Brien’s second reque st in September 2003. On October 9, 2003, Trice held a meeting in which he info rmed O’Brien of what Trice perceived to be deficiencies with the list O’Brien issu ed of the best qualified candidates for two secretarial positions. O’Brien testified thatTrice was upset that a friend of his, an African-American, was not on the list of rate d 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 comp laint 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, Tr ice scrutinized Appellants’ travel documents arising out of a training session th ey 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 he r to do so; suspended O’Brien’ s DEU authority; sent partial-3- files concerning the secretarial applicants to regional and national headquarters to be reviewed; did not allow O’Brien to atte nd 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 su spending them; and attempted to institute disciplinary action against them. In additi on to the discrete ev ents described above, Appellants state, without specificity, that Tr ice: interfered with their work on a daily to weekly basis; embarrassed, isolated, a nd ostracized them; clos ely scrutinized and criticized their work; and in creased their workload .

O’Brien filed a second EEOC complain t on May 29, 2004. Peterson filed an EEOC complaint on July 14, 2004. On Ap ril 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 environm ent based on race discrimination and retaliation. Peterson also alle ges constructive discharge.

The district court granted the USDA’s motion for summary judgment on all claims. The court determined that Appellant s failed to: (1) satisfy the affecting a term, condition, or privilege of employment elem ent of a prima faci e 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 c ontain evidence suggesting: (1) the requisite objectively intolerable working conditions or (2) thatTrice intentionally created the conditions in an effort to cause Peterson to qu it. 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-4- of discrimination, we review the districtcourt’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 in ferences in [their] favor.” Id.

A. Hostile Work Environment

A racially hostile work environment vi olates 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 fact s that show the harassment to have been “‘sufficiently severe or pervasive to alte r the conditions of [Appellants’] employment and create an abusive worki ng 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 th e totality of the circumstances, Vajdl v. Mesabi Acad. of KidsPeace, Inc. , 484 F.3d 546, 551 (8th Cir. 2007); however, Appellants seem to argue th at the sheer number of alleged instances of harassment must equate to a racially hostile work environment. We disagree. The frequency of the alleged harassm ent 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 physi cally threatening or humiliating, or a mere offensive utterance; and whether it unreas onably interferes with an employee’s work performance.” Id. Despite the hyperbolic and c onclusory nature of Appellants’-5- supporting affidavits, Trice’s actions, as alle ged, lack the requisite severity to be actionable. SeeNitsche v. CEO of Osage Valley Elec. Coop. , 446 F.3d 841, 846 (8th Cir. 2006) (“To be actionable, th e conduct complained of must be extreme in nature and not merely rude or unpleasant.”) (emphasis added).

Basically, the allegations may be dis tilled to verbal harassment and increased scrutiny. Therefore, we find entirely unc onvincing 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, De pt. 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 bei ng written in a shower at his workplace with an arrow connecti ng 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 fi refighters were not; endured the display of racially offensive cartoons; and suffered th e destruction of thei r property. 224 F.3d at 738-39.

Moreover, Appellants attempt to characteri ze 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 fema le 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.-6- Rather, the district court correctly an alogized 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” ch aracterized by her being: excluded from the decision-making process, treated with disres pect, subjected to fa lse complaints, and curtailed in her supervisory duties. Id. at 631-32; seeDevin v. Schwan’s Home Serv., Inc. , 491 F.3d 778, 788 (8th Cir. 2007) (fi nding 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 critic ism 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 r ecord 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 di sclosed 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 Peters on resigned, she may still have a Title VII claim by demonstrating that she was constructively discharged. Carpenter , 481 F.3d-7- at 616. To do so, she must first show th at “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); seePoland v. Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007) (stating that conditions must be “sufficiently extraordinary and egregious” in order to establish cons tructive discharge (quotation omitted)).

Peterson premises her constructive disc harge 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 someth ing more [than an actionable hostile work environment].”); Tran v. Tr s. 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 properl y 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 Tri ce 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 th e 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 Octobe r 9, 2003 meeting preceded Appellants’ EEOC2 We also note that the meeting occurred six years after Peterson’s 1997 EEOC complaint and three years after O’Brie n’s 2003 testimony on Pete rson’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).

-8- complaints that led to this case, 2and, therefore, cannot c onstitute 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 th e materially adverse element. SeeClegg 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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