Gary AuBuchon v. Timothy F. Geithner
2014 U.S. App. LEXIS 3591
| 8th Cir. | 2014Background
- AuBuchon, a Caucasian IRS international examiner, sued Secretary Geithner for retaliation under Title VII.
- Plaintiff alleged retaliation included a false sexual harassment accusation, accelerated deadlines, increased workload, and inadequate performance reviews arising from an EEOC complaint.
- Promotions to senior international examiner depend on cases assigned to senior-international-agent positions; a position must exist for promotion consideration.
- The 'M' case had no senior position, though AuBuchon worked on it; he later sought promotion based on the 'E' case, which was complex but not automatically eligible.
- The district court granted summary judgment; the court relied on Moore v. Forrest City Sch. Dist. and found no adverse action or constructive discharge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IRS's failure to promote was an adverse action | AuBuchon asserts retaliation via failing to promote him to senior examiner. | Geithner contends no senior position existed for him to promote into. | No adverse action; no available position meant no promotion possible. |
| Whether other retaliatory acts were materially adverse | AuBuchon claims various acts constitute retaliation. | The actions are petty or minor and not materially adverse. | Actions did not create material adverse employment action. |
| Whether conduct caused constructive discharge | Retaliation forced early retirement due to intolerable conditions. | Cannot prove material adverse actions; higher burden for constructive discharge. | No constructive discharge; failure to show material adverse actions. |
Key Cases Cited
- Moore v. Forrest City Sch. Dist., 524 F.3d 879 (8th Cir. 2008) (no promotional opportunity means no adverse action)
- Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (S. Ct. 2006) (adverse action is objective and weighs whether action dissuades a charge of discrimination)
- Watson v. O'Neill, 365 F.3d 609 (8th Cir. 2004) (failure to promote can be adverse action)
- Lisdahl v. Mayo Found., 633 F.3d 712 (8th Cir. 2011) (context matters; threats to job security require injurious impact)
- Sutherland v. Mo. Dept. of Corr., 580 F.3d 748 (8th Cir. 2009) (reassignment and ranking changes without harm not necessarily adverse)
- Recio v. Creighton Univ., 521 F.3d 934 (8th Cir. 2008) (extended counseling and scheduling changes without harm not adverse)
- Gilbert v. Des Moines Area Cmty. Coll., 495 F.3d 906 (8th Cir. 2007) (non-termination related actions can be non-adverse)
- Hill v. City of Pine Bluff, Ark., 696 F.3d 709 (8th Cir. 2012) (warnings without termination or harm not adverse)
- Wilkie v. Dept. of Health & Human Servs., 638 F.3d 944 (8th Cir. 2011) (evidentiary burden for constructive discharge)
- Tran v. Trs. of State Cols. in Colo., 355 F.3d 1263 (10th Cir. 2004) (constructive discharge burden)