United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 05-4474

___________

Rashid Arraleh, * 

*

Appellant, * 

* Appeal from the United States 

v. * District Court for the 

* District of Minnesota.

County of Ramsey; Terry Zurn, * 

Individually, * 

* 

Appellees. *

___________

Submitted: June 15, 2006

Filed: September 7, 2006 

___________

Before SMITH, HEANEY, and GRUENDER, Circuit Judges.

___________

SMITH, Circuit Judge.

Rashid Arraleh sued his former employer, the County of Ramsey ("the

County"), and his former supervisor, Terry Zurn, in his individual capacity, asserting

claims under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e to 2000e-17; 42

U.S.C. § 1981; and the Minnesota Human Rights Act, Minn. Stat. § 363A.01-.41.

Specifically, Arraleh alleged that the County discriminated against him on the basis

of race and national origin. He further alleged that the County retaliated against him
1

The Honorable Joan N. Ericksen, United States District Judge for the District

of Minnesota. 

2

The following are Arraleh's recorded deficiencies: 

On January 7, 2002, Arraleh could not be located even though he was supposed

to be with several other EGCs for client-intake meetings. In addition, during January

2002, Zurn reprimanded Arraleh twice for taking vacation without proper notice and

leaving the building without signing out. 

At a lunch with a dislocated worker, Arraleh said in a loud voice, "Who do I

have to sleep with to get service around here?" 

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and created a hostile work environment. The district court1

 granted summary judgment

to the County and Zurn on all of Arraleh's claims. Arraleh appeals. We affirm. 

I. Background

Workforce Solutions ("WFS") is a County program that assists people in

finding gainful employment. In late 2001, WFS needed to hire an Employment

Guidance Counselor ("EGC") to meet its obligations. Terry Zurn, supervisor for

WFS's Displaced Worker Program, decided to hire a temporary, six-month EGC.

Zurn, with approval of WFS's director, Patricia Brady, hired Rashid Arraleh. Arraleh,

a black Muslim immigrant from Somalia, began working as an EGC on December 17,

2001. By state law and corresponding County personnel rules, Arraleh's temporary

employment was predetermined to end no later than May 31, 2002. Arraleh accepted

the position, hoping to obtain a permanent position with WFS. 

To assist Arraleh in his new position, Zurn assigned Kim Kruelle, a Korean

American with ten years' experience as an EGC, to mentor Arraleh. During Arraleh's

six-month term, at least four of his WFS coworkers and at least two clients made

complaints against him. Arraleh developed a history of double-booking, missing and

appearing late for client appointments, leaving the office without signing out or

informing his supervisor of where he was going, and poor customer service.2

 Arraleh
On March 7, 2002, Kruelle met with Arraleh to discuss a situation in which a

client had arrived for a scheduled appointment only to learn that Arraleh had signed

out for the day. She also wanted to discuss the importance of keeping client

appointments, attending team meetings, and not double booking. Arraleh told her that

she was saying these things only because he was a "little black boy." Kruelle then

stopped the meeting and asked another staff member to witness the balance of the

discussion because she felt Arraleh was implying that she was a racist. Arraleh then

said he was "just joking." 

On March 8, 2002, Arraleh was "in a panic" when a client showed up for a

scheduled appointment. Arraleh said "WFS" had "another mix-up," but the schedule

showed that Arraleh actually caused the scheduling error. Arraleh blamed another

employee for entering the appointment incorrectly. 

On March 12, 2002, at 9:00 a.m., Arraleh met an applicant for WFS services

in the lobby and scheduled an appointment to meet the client at 2:00 p.m. in the

afternoon. Arraleh arrived for the appointment 55 minutes late.

On March 14, 2002, Zurn met with Arraleh to assess his performance and

advised Arraleh that he needed to improve his poor customer service and poor time

management, citing a recent example where Arraleh had missed a client appointment

because he had also scheduled a vacation day. Zurn advised Arraleh that such repeated

conduct would be grounds for dismissal in some businesses. 

On April 2, 2002, Zurn spoke with Arraleh about another missed client

appointment where Arraleh scheduled the appointment for April 1 and then took the

day off as a flextime day. Arraleh said he had "totally forgotten" about the

appointment. Zurn then counseled Arraleh about his scheduling practices. 

On April 25, 2002, Arraleh wrote Kruelle two e-mails, the first of which stated:

Tell the world how wonderful I am tell the world that you have see [sic]

a deity a divine person tell the world you Kim Kruelle swears you have

seen the sight of God with your own [sic] and he works with you. From

the Almighty himself

-3-
Later the same afternoon, Arraleh wrote:

NO THE ANSWER IS I AM JESUS

On May 7, 2002, Arraleh asked employees at the WFS front desk to cancel his

appointments for the day. All clients were canceled but two. When the first client

arrived promptly at 10:00 a.m., Kruelle introduced herself to the client. The client

responded, "He's not here again?" The client then told Kruelle that it was "apparent

that Rashid was new to the job." Kruelle apologized and said that she would keep the

client's file. 

3

Donna Waldhauser, an EGC, testified that she was surprised by complaints

from Arraleh's coworkers that Arraleh missed appointments because she was aware

of other employees, including Kruelle, who had also missed appointments.

Waldhauser herself admitted to occasionally missing appointments. However,

Waldhauser was unaware of any coworker complaints to supervisors about other

employees missing appointments, except for those about Arraleh. 

Loretta Novak, an EGC, testified that some of her coworkers criticized Arraleh

for missing appointments or double-booking appointments. She stated that a white

employee hired at the same time as Arraleh, Mary White, also missed appointments

and double-booked, but was not subject to criticism. According to Novak, the other

counselors covered for White and did not report the incidents to Zurn. Novak did meet

with Zurn to discuss her concerns about the hostile way employees were treating

Arraleh, but Zurn did not respond. 

Also, another EGC, Mary Haigh, testified that she found it surprising that her

coworkers complained that Arraleh missed appointments with clients because it was

a routine occurrence in their department to miss appointments. She stated that white

EGCs miss client meetings or are unable to be located during the work day as often

as several times per week. These employees do not sign out when they leave the

office. However, Haigh admitted that she never heard anyone complain to any

supervisors about these employees missing client appointments or being absent from

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does not dispute his documented deficiencies; instead, he alleges that double-booking

and missing appointments were common occurrences at WFS. Coworkers Donna

Waldhauser, Loretta Novak, and Mary Haigh testified in support of Arraleh's claims.3
the office without signing out.

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According to Arraleh, Zurn treated him differently than white employees.

Specifically, Arraleh contends Zurn made a computer log of complaints against him

but never did so for white employees. When complaints were lodged against other

employees, Zurn simply spoke with the individual and made no record of the

complaint. In contrast, when white employees complained about Arraleh, Zurn did not

discuss the matter with him or disclose his computer log's contents. 

Toward the end of Arraleh's six-month temporary employment, Zurn provided

a letter of reference at Arraleh's request because Arraleh was looking for a job. In

addition, Zurn informed Arraleh of an open part-time Resource Specialist position. 

On May 22, 2002, Arraleh met with Brady to complain that he did not think it

was fair that he was "excluded" from a department lunch party because only ham was

served. During the meeting, Arraleh said he "spoke his heart out" regarding how he

felt about the department. In response to his specific complaint about ham being

served, Brady apologized, said that WFS "should have known better," and sent out an

e-mail to the staff "to be sensitive to other people's religions." 

Brady also asked Arraleh to put his other concerns about the department in

writing. Arraleh did so. In his written complaint, Arraleh asserted that racism and race

issues "are so fundamental in WFS that they seem almost an integral component."

Specifically, Arraleh claimed to have witnessed coworkers "use words like 'those

people,' those damn Muslims." In addition, he overhead coworkers say "'[y]ou people

are emotional[,]' referring to people of African descend [sic]." Also, Arraleh said that

he "personally ha[d] been insulted, degraded, categorized as lazy and skipping work

[sic]. While all along my supervisor knew where and what I was doing." He said that

"[e]very time when two people of color go to lunch or talk there is imminent danger

for WFS 'white' staff" because "[t]hey assume that their jobs are in jeopardy or we are
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up to no good." Finally, Arraleh wrote that "[w]hen we get passed over for a position

or not allow[ed] to participate on a committee or interviewing panel, we should

understand that there were other factors involved not our race." Arraleh thinks he gave

Brady the written complaint two days after their meeting. He "presumed she was

going to find out what was going on" and "guess[ed] she did." 

In response to the complaint, Brady contacted Zurn and advised him that

Arraleh felt that the staff was singling him out because he was black and Muslim.

Zurn responded that Arraleh's situation involved sub-par client service and that

Arraleh's coworkers were distancing themselves from Arraleh because of their

frustration with having to pick up Arraleh's workload. Brady also contacted George

Hamm, her assigned Human Resources representative, asking him to follow up on

Arraleh's complaint. In turn, Hamm contacted Arraleh, advised him that the County

takes discrimination seriously, and set up an appointment with Arraleh on June 3,

2002. Arraleh canceled the appointment. 

After Arraleh's complaints to Brady in May 2002, coworker Michael Ellison

told Arraleh that he had "cooked his own goose" and there was no way that WFS

would hire him for a permanent position. In addition, Arraleh claims to have

overheard a conversation in which a County Planner told Zurn that "[g]iving [Arraleh]

a job is like raising terrorist kids." 

The County's temporary employees may apply for available permanent

positions. When a department has an opening for a permanent position, it submits a

request to the County's Human Resources Department for a list of eligible applicants.

These lists, generated independently by Human Resources, contain the names of the

top applicants based on points awarded for application-question responses and test

scores. The department seeking the lists, in this case WFS, must hire individuals

appearing on these lists. 
-7-

Shortly after his hiring and during Arraleh's temporary employment, WFS

requested four lists of eligible applicants from Human Resources. First, on January 29,

2002, WFS received a list that did not include Arraleh's name for any of four EGC

openings. WFS hired two Asian persons, a Caucasian, and a Somali to fill these

positions. Each of these hires was for the "Welfare to Work" section of WFS, not

Zurn's Displaced Worker program where Arraleh worked. Second, on May 13, 2002,

WFS received an updated list of eligibles to fill one EGC position. Arraleh's name did

not appear on this list either. Third, on May 28, 2002, WFS requested a third updated

list to fill two EGC Aide positions; Arraleh's name did appear on the list for these

positions. Based upon his scores, Arraleh ranked 6th out of 13 eligible candidates and

was interviewed for the positions. Finally, on June 3, 2002, Human Resources

supplied WFS with a fourth updated list of eligibles to fill an EGC position. Arraleh

appeared on the list of eligibles and ranked second out of the four applicants. He was

not interviewed for this position. 

Bruce Heinz, a WFS supervisor, and Zurn interviewed Arraleh for the EGC

Aide positions. Prior to interviewing Arraleh, they consulted Hamm, who advised

them to follow the already-defined selection process and to interview and evaluate

Arraleh in the same manner as any other candidate. Hamm advised Heinz and Zurn

that the hiring process and Arraleh's complaint were separate matters and that Hamm

would follow up on the latter with Arraleh in an exit interview. 

After interviewing all of the applicants for the EGC Aide positions, Heinz and

Zurn recommended to Brady that she hire Sharron Gates and JoAnn Mays. Both

women are African American and ranked eighth and tenth on the list, respectively.

WFS awarded the EGC position to an African-American male, Walter Rhodes, who

ranked fourth on the final list of eligibles. 
-8-

On June 21, 2002, Zurn wrote Arraleh a rejection letter, which stated that

WFS's hiring decision "was based on our determination that the education and work

experience of the candidate we selected best fits the requirements of this position."

Arraleh subsequently filed a charge of discrimination with the Minnesota

Department of Human Rights and the Equal Employment Opportunity Commission

(EEOC). After receiving notices of his right to sue, Arraleh commenced this lawsuit,

alleging that the County discriminated against him on account of his race and national

origin by declining to hire him for continued employment, retaliated against him for

the complaint he made to Brady and created a hostile work environment. 

II. Discussion

Arraleh raises three arguments on appeal. First, he argues that the district court

improperly granted summary judgment to WFS and Zurn on his failure to hire claim.

Second, he argues that the district court erred by granting summary judgment to WFS

and Zurn on his retaliation claim. Finally, he asserts that the district court erred by

summarily dismissing his hostile work environment claim. 

"We review grants of summary judgment de novo." Wojewski v. Rapid City

Reg'l Hosp., Inc., 450 F.3d 338, 342 (8th Cir. 2006) (internal quotations and citation

omitted). "Summary judgment is appropriate when there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law." Id.

(internal quotations and citations omitted). 

A. Failure to Hire

Arraleh asserts that he provided direct evidence of discrimination, including a

remark by a County Planner that hiring Arraleh was like "raising little terrorist kids"

and a remark by Brady that employees should "leave their blackness behind." In

addition, he maintains that the district court erred in its application of the burdenshifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), by
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requiring him to show that he met more than the minimum objective qualifications of

the positions in his prima facie case. Finally, Arraleh argues that he was objectively

more qualified for the positions than the candidates hired. 

"[A] plaintiff may survive the defendant's motion for summary judgment in one

of two ways." Griffith v. Des Moines, 387 F.3d 733, 736 (8th Cir. 2004). First, the

plaintiff may present direct evidence of discrimination, which "is evidence 'showing

a specific link between the alleged discriminatory animus and the challenged decision,

sufficient to support a finding by a reasonable fact finder that an illegitimate criterion

actually motivated' the adverse employment action." Id. (quoting Thomas v. First Nat'l

Bank of Wynne, 111 F.3d 64, 66 (8th Cir. 1997)). When a plaintiff provides direct

evidence of discrimination, the three-part McDonnell Douglas analysis is unnecessary.

Id. "But if the plaintiff lacks evidence that clearly points to the presence of an illegal

motive, he must avoid summary judgment by creating the requisite inference of

unlawful discrimination through the McDonnell Douglas analysis, including sufficient

proof of pretext." Id. 

"[N]ot every prejudiced remark made at work supports an inference of illegal

employment discrimination." Rivers-Frison v. Southeast Mo. Cmty. Treatment Ctr.,

133 F.3d 616, 619 (8th Cir. 1998). "We have carefully distinguished between

comments which demonstrate a discriminatory animus in the decisional process or

those uttered by individuals closely involved in employment decisions, from stray

remarks in the workplace, statements by nondecisionmakers, or statements by

decisionmakers unrelated to the decisional process." Id. (internal quotations, citations,

and alteration omitted). 

Here, Arraleh asserts that the County Planner's statement to Zurn that "[g]iving

[Arraleh] a job is like raising terrorist kids" is direct evidence of discrimination.

However, this remark was made by a County employee with no authority to make the

hiring decision on Arraleh's application. The record does not contain evidence
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showing that the County Planner's comment influenced Zurn not to hire Arraleh for

a permanent position. Arraleh's evidence does not show that, after hearing the County

Planner's remark, Zurn failed to review Arraleh's application or consider his

performance evaluations before recommending to Brady that she hire other

candidates. Fast v. S. Union Co., Inc., 149 F.3d 885, 891 (8th Cir. 1998) (noting that

the decisionmaker, who heard discriminatory comments made by a nondecisionmaker,

failed to review the plaintiff's personnel file and performance evaluations before

terminating the plaintiff's employment). 

As for Brady's comment to Arraleh that "black people are expected to leave

their blackness behind," Arraleh failed to provide context for this statement and show

some link to his not being hired. Without more, no reasonable fact finder could, on the

basis of Brady's remark, find that Zurn's hiring decision was racially motivated. At

most, the comment is an ambiguous statement by a decisionmaker unrelated to the

decisional process. The comment does not constitute direct evidence of

discrimination.

Finding that no direct evidence of discrimination exists, we must evaluate

Arraleh's claim under the McDonnell Douglas burden-shifting analysis. Kenney v.

Swift Transp., Inc., 347 F.3d 1041, 1044 (8th Cir. 2003). A plaintiff establishes a

prima facie case in a "failure to hire" case when he proves that (1) he is a member of

a protected class; (2) he was qualified for the position for which the employer was

accepting applications; (3) he was denied the position; and (4) the employer hired

someone from outside the protected class. Kobrin v. Univ. of Minn., 34 F.3d 698, 702

(8th Cir. 1994). 

Once the plaintiff establishes his prima facie case, the employer may rebut the

prima facie case by articulating one or more legitimate, nondiscriminatory reasons for

its decision. Pope v. ESA Serv., Inc., 406 F.3d 1001, 1007 (8th Cir. 2005). This burden

is not onerous, nor does the explanation need to be demonstrated by a preponderance
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of the evidence. Floyd v. Mo. Dept. of Soc. Servs., 188 F.3d 932, 936 (8th Cir. 1999).

If the employer presents a nondiscriminatory reason for its decision, the plaintiff is

"left with 'the opportunity to demonstrate that the proffered reason is not the true

reason for the employment decision.'" Wallace v. DTG Operations, Inc., 442 F.3d

1112, 1120 (8th cir. 2006) (quoting Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S.

248, 255 (1981)). 

A plaintiff may establish pretext by showing "that the employer changed its

explanation for why it fired the employee . . . ." Stallings v. Hussmann Corp., 447

F.3d 1041, 1052 (8th Cir. 2006). However, we are mindful that "[t]here is a strong

inference that discrimination was not a motivating factor if the same person hired and

fired the plaintiff within a relatively short period of time." Herr v. Airborne Freight

Corp., 130 F.3d 359, 362 (8th Cir. 1997); see also Lowe v. J.B. Hunt Transp., 963

F.2d 173, 174–75 (8th Cir. 1992) (holding in an age discrimination case that "[i]t is

simply incredible, in light of the weakness of plaintiff's evidence otherwise, that

company officials who hired him at age fifty-one had suddenly developed an aversion

to older people less than two years later."). 

We have previously addressed a plaintiff's argument that her employer's

"discriminatory animus [was] evidenced by the fact that [her employer] hired someone

less qualified than her for [the position]." Kincaid v. City of Omaha, 378 F.3d 799 (8th

Cir. 2004). In rejecting the plaintiff's argument, we held:

Although an employer's selection of a less qualified candidate "can

support a finding that the employer's nondiscriminatory reason for the

hiring was pretextual," it is the employer's role to "[i]dentify [ ] those

strengths that constitute the best qualified applicant." Duffy v. Wolle, 123

F.3d 1026, 1037–38 (8th Cir. 1997). This is so because "the

employment-discrimination laws have not vested in the federal courts the

authority to sit as super-personnel departments reviewing the wisdom or

fairness of the business judgments made by employers, except to the
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extent that those judgments involve intentional discrimination." Hutson

v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir. 1995). 

Id. at 805. Because the plaintiff could not show that the employer hired a "less

qualified applicant" as opposed to an equally qualified candidate, her claim failed. Id.

(emphasis in original) (citing Lidge-Myrtil v. Deere & Co., 49 F.3d 1308, 1311 (8th

Cir. 1995) ("Although [an employee] does possess the experience and some of the

other qualities essential for success in the position, this does not suffice to raise an

inference that [the employer's] stated rationale for giving the position to another is

pretextual."); Pierce v. Marsh, 859 F.2d 601, 604 (8th Cir. 1988) ("The mere existence

of comparable qualifications between two applicants, one black male and one white

female, alone does not raise an inference of racial discrimination.")). 

We hold that even if Arraleh, contrary to the district court's determination, did

establish a prima facie case of intentional discrimination, he failed to present evidence

sufficient to support a finding that the County's declared reason for declining to hire

him was a pretext for race and national origin discrimination. See Hennessey v. Good

Earth Tools, Inc., 126 F.3d 1107, 1108 (8th Cir. 1997) ("We hold that even if

Hennessey, contrary to the District Court's determination, did establish a prima facie

case under the ADEA and MHRA (a question we need not and do not decide), he did

not present evidence sufficient to support a finding that Good Earth's declared reason

for firing him was a pretext for age discrimination."). 

The County and Zurn offered a legitimate, nondiscriminatory reason for not

hiring Arraleh. Zurn's rejection letter to Arraleh stated that WFS's decision not to hire

Arraleh "was based on our determination that the education and work experience of

the candidate we selected best fits the requirements of this position." Zurn also

testified in his deposition that he and Heinz recommended that Brady hire Mays

because "she was the best candidate for the position." In affidavits submitted by Brady
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and Zurn, both stated that they did not hire Arraleh, specifically, because of his poor

performance and because he was not a "team player." 

Therefore, the burden shifted back to Arraleh to prove pretext. While Arraleh

argues that he established pretext by showing that the County changed its explanation

for why it did not hire him, the later affidavits by Brady and Zurn do not give a

different explanation but instead elaborate on the same explanation. Specifically, the

testimony showed why the candidates selected had better "work experience" and

better "fit the requirements for the position" than Arraleh. We note also that the same

supervisor—Zurn—both hired and subsequently declined to hire Arraleh for a

permanent position within a six-month time period. This fact suggests that racial and

national origin discrimination were not the motivating factors behind the adverse

employment action. 

Arraleh argues disparate disciplinary treatment for missing and double-booking

appointments. He contends white employees did the same things without being

reprimanded. However, Arraleh presented no evidence that Brady or Zurn knew of

such conduct and treated whites preferentially. In fact, his own witnesses admitted that

they were unaware if any of the white employees' conduct alleged by Arraleh was

reported to Zurn. Furthermore, the candidates actually hired for the jobs Arraleh

applied for were all minorities with the exception of one white male. Several white

applicants on the list of eligibles were rejected for the positions. These facts undercut

Arraleh's argument that the County was engaging in discrimination on the basis of

race or national origin. We decline to second guess the employer's identification of

those strengths that constitute the best qualified applicant.

Accordingly, we hold that the district court properly granted summary judgment

to the County and Zurn on Arraleh's failure to hire claim. 
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B. Retaliation

Arraleh's second argument on appeal is that the district court erred in dismissing

his claim for retaliation because it ignored settled circuit precedent that a temporal

proximity of three weeks between protected conduct and the adverse employment

action is sufficient to articulate a prima facie case of retaliation as a matter of law. In

addition, he argues that the district court wholly ignored his evidence of pretext. 

In a retaliation claim, the plaintiff establishes his prima facie case by showing

that: "(1) he engaged in protected conduct by either opposing an act of discrimination

made unlawful by Title VII or participating in an investigation under Title VII; (2) he

suffered an adverse employment action; and (3) the adverse action was causally linked

to the protected conduct." Singletary v. Mo. Dept. of Corr., 423 F.3d 886, 892 (8th

Cir. 2005). 

We again assume, without deciding, that Arraleh has established his prima facie

case of retaliation. Therefore, we address only whether Arraleh proved pretext. 

"An inference of a causal connection between a charge of discrimination and

[an adverse employment action] can be drawn from the timing of the two events, but

in general more than a temporal connection is required to present a genuine factual

issue on retaliation." Wallace, 442 F.3d at 1119 (internal quotations and citation

omitted). Engaging in protected activity "does 'not insulate an employee from

discipline for . . . disrupting the workplace.'" Wallace v. Sparks Health Sys., 415 F.3d

853, 858 (8th Cir. 2005) (quoting Kiel v. Select Artificials, Inc., 169 F.3d 1131 (8th

Cir. 1999)) (alteration in original). 

In the present case, a period of three weeks between Arraleh's complaint of

discrimination and his failure to receive a permanent position with the County may

suffice to establish causation in his prima facie case. However, temporal proximity

alone is generally insufficient to prove pretext. As we previously noted, the County
4

From the beginning of his employment, Arraleh claims that he was subjected

to intense negative scrutiny and derogatory comments from his coworkers about his

race, appearance, and national origin. These comments included statements such as

"today your skin doesn't look as white as it normally does," "it's difficult to work with

you people," "you are always late," "you people are so emotional, is your culture

always like this," "the reason you people never get jobs is because you are always

listening to loud music," "employers never call back you people," "I don't think you

do as much work as we do," "is your hair real," "giving Rashid a job is like raising

little terrorist kids," and "Mr. Cocoa." In addition, according to Arraleh, WFS director

Patricia Brady, an African-American female, told him that "black people are expected

to leave their blackness behind." When asked how these statements related to his race

or national origin, Arraleh replied, "I don't know. They just felt I was lazy, I was not

up to standard, I was not as much human as they were. That is how I felt personally."

Arraleh supported his allegations with testimony from Haigh and Waldhauser.

Haigh testified that she heard many negative and offensive comments about Arraleh,

such as referring to Arraleh as "lazy" and "stupid," stating that Arraleh did not know

what he was doing, and calling Arraleh "little" and "cute." In addition, Haigh testified

to hearing a coworker say that "Muslims should all be killed" after meeting

Waldhauser's husband, who is from Kuwait. 

Waldhauser testified that Arraleh's coworkers made derogatory remarks both

to him and about him regarding his skin, hair, and appearance. For example, she

testified that a coworker called him the "beautiful one." In addition, she heard

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and Zurn presented evidence regarding Arraleh's deficiencies during his temporary

employment, all of which were recorded before Arraleh ever complained of

discrimination. Therefore, we hold that the district court properly granted summary

judgment to the County and Zurn on Arraleh's retaliation claim. 

C. Hostile Work Environment 

Finally, Arraleh argues that, in dismissing his hostile work environment claim,

the district court "wholly ignored the affidavits of Arraleh's co-workers demonstrating

that some of Arraleh's co-workers were vehemently, passionately hostile toward black

men, immigrants and Muslims generally, and Arraleh specifically."4

 In addition,
disparaging remarks about Muslims and African immigrants generally. In addition to

disparaging remarks made by coworkers, Waldhauser also interpreted some

coworkers' comments as suggesting that Arraleh was not working.

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Arraleh argues that the district court should have considered evidence that two of his

coworkers were so concerned about the hostility expressed toward Arraleh that they

approached Zurn to discuss it. 

To establish a hostile work environment claim, the plaintiff must establish that:

(1) he is a member of a protected class; (2) he was exposed to unwelcome harassment;

(3) the harassment was based on a protected characteristic of the plaintiff; (4) the

harassment affected a term, condition, or privilege of employment; and (5) the

employer knew or should have known about the harassing behavior, but failed to take

proper action to alleviate it. Al-Zubaidy v. TEK Indus., Inc., 406 F.3d 1030, 1038 (8th

Cir. 2005).

 To demonstrate that harassment altered the terms and conditions of one's

employment, the conduct alleged must be severe and pervasive, both objectively and

subjectively. Howard v. Burns Bros., Inc., 149 F.3d 835, 840 (8th Cir. 1998). When

determining whether a work environment is hostile or abusive, we examine all of the

circumstances, including "the frequency of the discriminatory conduct; 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." AlZubaidy, 406 F.3d at 1038. 

Harassment standards are demanding. Id. "[S]imple teasing, offhand comments,

and isolated incidents (unless extremely serious) will not amount to discriminatory

changes in the terms and conditions of employment." Id. at 1039 (internal quotations

and citations omitted) (holding that the district court properly dismissed plaintiff's

hostile work environment claims because "[m]ost of [the manager's] offhand and

isolated comments were wholly unrelated to each other and had a tenuous connection
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to race, sex, religion or national origin."). "Mere utterance of an epithet which

engenders offensive feelings in an employee does not sufficiently affect the conditions

of employment" to support a claim of hostile work environment. Elmahdi v. Marriott

Hotel Servs., Inc, 339 F.3d 645, 653 (8th Cir. 2003) (internal quotations, alterations,

and citation omitted). 

Even if the plaintiff can establish that the harassment is "severe and pervasive,"

the plaintiff must then present evidence that the employer "knew or should have

known about the harassment and failed to respond in a prompt and effective manner."

Diaz v. Swift-Eckrich, Inc., 318 F.3d 796, 801 (8th Cir. 2003). In determining whether

the employer failed to take "prompt and effective remedial action to end the

harassment," we consider "the amount of time between notice of the harassment and

any remedial action, the options available to the employer such as employee training

sessions and disciplinary action taken against the harassers, and whether or not the

measures ended the harassment." Id. (internal quotations and citation omitted). 

Here, Arraleh testified as to statements he heard various coworkers make, and

two of his coworkers, Haigh and Waldhauser, testified to hearing other employees

make disparaging remarks not only about Arraleh but also about Muslims and African

immigrants in general. We conclude Arraleh's evidence does not meet the rigorous

standards reflected in circuit precedent to support a hostile work environment claim.

As in Al-Zubaidy, many of the alleged comments were wholly unrelated to Arraleh's

race or national origin or had a tenuous connection to them. In fact, when asked what

any of the comments had to do with his race or national origin, Arraleh responded that

he did not know; he just felt that his coworkers thought he was lazy and "not up to

standard."

Furthermore, Arraleh's claim is weakened by the absence of evidence that the

comments interfered with his ability to perform his duties as an EGC. Many of the

comments were not made in Arraleh's presence or made specifically about Arraleh.
5

"Because [Arraleh's] claims under the Missouri Human Rights Act are

premised on the same factual bases as his [federal] claims, they must also fail." Kiel

v. Select Artificials, Inc., 169 F.3d 1131, 1137 (8th Cir. 1999). 

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Finally, even if we concluded that Arraleh satisfied the first four elements of

a hostile work environment claim, he did not provide evidence that the County failed

to respond to the harassment in a "prompt and effective manner." After Arraleh met

with Brady to discuss his complaint of harassment, Brady immediately contacted

Hamm, the Human Resources representative, and asked him to follow up on Arraleh's

complaint. Then, Hamm contacted Arraleh, advised him that the County took such

issues very seriously, and set up an appointment with Arraleh to discuss the complaint.

Arraleh canceled the appointment with Hamm. 

Therefore, we find no error in the district court's grant of summary judgment

to the County and Zurn on Arraleh's hostile work environment claim. 

III. Conclusion

Accordingly, we affirm the judgment of the district court in all respects.5

HEANEY, Circuit Judge, dissenting.

I respectfully dissent. In my view, there are material issues of fact that made

summary judgment inappropriate on Rashid Arraleh’s claims of hostile work

environment, failure to hire, and retaliation.

Arraleh is a black Muslim immigrant from Somalia. During his six-month

tenure of employment with Ramsey County, he was directly subjected to the following

comments:

• “Today, your skin doesn’t look as white as it normally does” (Appellant’s App.

at 48);
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• Being referred to as “Mr. Cocoa” (id. at 59-61);

• “Is your hair for real?” (id. at 56);

• “It’s very difficult to work with you people” (id. at 52); 

• African-Americans are “very difficult to work with” because they are “very

emotional” and “take things too personally” (id. at 43); and

• “[B]lack people are expected to leave their blackness behind” (id. at 41).

Given this litany, it is obvious that this is not a case of an isolated, backhanded

comment. Rather, it was a stream of comments that reveal an office that was hostile

toward Arraleh because of his race and religion. This behavior infected the entire

office environment, as Arraleh’s co-workers observed discriminatory actions and

behavior. See Leibovitz v. New York City Transit Auth., 252 F.3d 179, 190 (2nd Cir.

2001) (noting that “evidence of harassment directed at other co-workers can be

relevant to an employee’s own claim of hostile work environment.”) Mary Haigh

attested that a co-worker named Mary Michael vehemently stated, “Muslims should

be killed.” (Appellant’s App. at 1.) In fact, Michael’s comments about Arraleh, in

particular, and Muslims, in general, were so volatile and angry that Haigh tried to

avoid mentioning Arraleh’s name and refused to discuss anything related to Muslims

and the Middle East. 

Waldhauser attested that she, too, heard a steady stream of disparaging

comments about Muslims and African immigrants, including the statement that

“Muslims should all be killed.” (Id. at 12.) These views became personalized to the

point that Arraleh was subjected to intense scrutiny by his co-workers, several of

whom repeatedly called Waldhauser to learn if Arraleh had missed or double booked
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appointments. This happened even though Waldhauser testified that Arraleh’s

immediate supervisor had herself missed numerous appointments on a project she

shared with Waldhauser. 

Loretta Novak, while working in another location, attested she saw similar

behavior toward Arraleh. He was criticized for missing or double booking

appointments, even though the same behavior from a similarly situated white

employee was regularly tolerated. Even though Waldhauser and Novak worked in

separate offices, they found the behavior so unacceptable that they complained to Zurn

that Arraleh was facing unwarranted hostility. Moreover, Waldhauser and Novak met

with Patricia Brady, WFS’s director, after Arraleh’s employment term finished to

again complain about the discrimination he suffered. 

Arraleh clearly felt he was the victim of hostility based on his race and religion

when he overheard a county planner say, “[g]iving [Arraleh] a job is like raising

terrorist kids,” (id. at 66) and being directly told by a supervisor that he needed to

leave his blackness at the door. Objectively, three coworkers felt strongly enough

about the nature and effect of these comments that two reported it to Zurn and a third

acted by refusing to mention Arraleh’s name. In other words, three reasonable,

objective coworkers found that these bigoted attitudes toward Arraleh were prevalent;

two of those coworkers believed it resulted in Arraleh being subjected to a heightened

level of job scrutiny. 

In this instance, Arraleh alleges he was subjected to daily comments and actions

over a relatively short period of time–six months. Arraleh also presents the testimony

of coworkers who found the actions and comments directed at Arraleh equally

offensive and believed that these attitudes subjected Arraleh to a stricter code of

conduct than was applied to white coworkers. I have no trouble concluding that

Arraleh produced sufficient evidence to make out a submissible case on his hostile

work environment claim. 
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The majority also fails to take into account the discriminatory impact of these

attitudes on Arraleh’s failure-to-hire claim. Even though Arraleh’s coworkers were

not his official superiors, their impact on this decision was influential. A direct

evidence inquiry is not limited to those officially entrusted with decision-making

responsibilities. If a reasonable factfinder can conclude that a third party was closely

involved in the decision-making process, then the analysis can extend to those who

unofficially influence the decision-making process. Mohr v. Dustrol, Inc., 306 F.3d

636, 641-42 (8th Cir. 2002), overruled on other grounds in Desert Palace, Inc. v.

Costa, 539 U.S. 90 (2003). 

In Mohr, this court found a reasonable inference between the decision not to

hire Mohr and decisions made by an intermediate supervisor who was not directly

responsible for hiring or firing Mohr. The Mohr decision relied on the precedent that

“[c]ourts [should] look beyond the moment a decision was made in order to determine

whether statements or comments made by other managerial employees played a role

in the ultimate decisionmaking process.” Id. at 641 (quoting Gagnon v. Sprint Corp.,

284 F.3d 839, 848 (8th Cir. 2002)). Even if the ultimate decision to not hire or to fire

was free of discriminatory animus, this court has held that we cannot sterilize a

seemingly objective decision when it is the indirect product of such animus. Id. at

641-42. 

As a contract employee, Arraleh’s unofficial superiors were his permanent

coworkers. Their exacting scrutiny and constant complaints regarding Arraleh led

ultimately to the decision not to hire him. As Novak and Waldhauser attested, these

complaints appeared motivated by discriminatory animus toward Arraleh. And it is

reasonable to assume that given Haigh’s testimony, any hope of working alongside

his permanent coworkers was stymied by their attitudes toward blacks and Muslims.

For the purpose of summary judgment review, the involvement of Arraleh’s

coworkers in the decision-making process and their alleged comments about blacks
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and Muslims sufficiently establish a specific link between the decision not to hire and

the alleged discriminatory animus. 

Lastly, Arraleh articulates a case for retaliation that should be presented to a

jury. The majority states Arraleh failed to establish a factual question of causation.

A plaintiff may use circumstantial evidence to establish a causal inference by showing

a temporal proximity between the protected conduct and the adverse action. EEOC

v. Kohler Co., 335 F.3d 766, 773-74 (8th Cir. 2003); see also Smith v. Allied Health

Sys., 302 F.3d 827, 833-34 (8th Cir. 2002). Here, there were merely three weeks

between Arraleh’s discrimination complaint and Zurn’s decision not to hire him.

Inconsistent enforcement of employment standards is also relevant to the retaliation

inquiry. Kohler, 335 F.3d at 775-76. The majority accepts Arraleh’s alleged

deficiencies as the true basis for Zurn’s decision not to hire Arraleh. However, these

deficiencies are in dispute. As noted previously, there is strong evidence showing that

Arraleh was unfairly scrutinized by his fellow employees. The record reflects Zurn

knew of, yet did nothing to correct, this skewed standard; when Novak and

Waldhauser reported it to him, he refused to discuss it with Waldhauser, and yet Zurn

never reprimanded Arraleh for this alleged behavior. Finally, Waldhauser gave a

positive evaluation of Arraleh’s work and noted that many of the county’s clients

preferred to work with Arraleh. In short, the idea that Arraleh was not permanently

hired because of his poor work is, at the very least, suspect and disputed. Rather than

allow the district court to be the arbiter of fact in this instance, the material issues of

fact in this claim should be decided by a jury.

For these reasons, I would reverse the grant of summary judgment and remand

to the district court for further proceedings.

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