Dolores L. CHIVERS, Plaintiff, Chestine Clay, Plaintiff-Appellant, v. WAL-MART STORES, INC., doing business as Wal-Mart, doing business as Wal-Mart Associates, Inc., Defendant-Appellee.
No. 10-2414
United States Court of Appeals, Eighth Circuit.
Submitted: Feb. 17, 2011. Filed: June 9, 2011.
641 F.3d 927
Here, in contacting Dr. Berland via the post-hearing letter, the ALJ was providing Dr. Berland the opportunity to provide medical evidenсe for his opinion. But a lack of medical evidence to support a doctor‘s opinion does not equate to underdevelopment of the record as to a claimant‘s disability, as “the ALJ is not required to rely entirely on a particular physician‘s opinion or choose between the opinions [of] any of the claimant‘s physicians.” Schmidt v. Astrue, 496 F.3d 833, 845 (7th Cir.2007). The ALJ chose to credit the opinions of Martise‘s other treating and examining physicians, none of which indicated that Martise had serious functional restrictions. As the district court pointed out, the ALJ exhaustively reviewed the record medical evidence and made factual findings regarding this evidence. “[T]here is no indication that the ALJ felt unable to make the assessment he did and his conclusion is supported by substantial evidence.” Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir.2005).
D. Hypothetical to VE
Finally, Martise argues that the ALJ provided an improper hypothetical question to the VE because the question did nоt sufficiently account for limitations arising from her headaches, her severe combination of other impairments, or the limitations that Dr. Berland indicated. Therefore, Martise asserts that the question was not supported by the evidence, and the ALJ should have relied on the VE‘s answer to the second hypothetical question, which confirmed that Martise could not work.
“The ALJ‘s hypothetical question to the vocational expert needs to include only those impairments that the ALJ finds are substantially supported by the record as a whole.” Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir.2006) (quotation and citation omitted). “The ALJ‘s hypothetical question included all of [Martise‘s] limitations found to exist by the ALJ and set forth in the ALJ‘s description of [Martise‘s] RFC.” Id. Based on our previous conclusion, see supra Part II.B., that “the ALJ‘s findings of [Martise‘s] RFC are supported by substantial evidence,” we hold that “[t]he hypothetical question was therefore proper, and the VE‘s answer constituted substantial evidence supporting the Commissioner‘s denial of benefits.” Lacroix, 465 F.3d at 889.
III. Conclusion
Accordingly, we hold that substantial evidence on the record as a whole supports the ALJ‘s decision. We therefore affirm the judgment of the district court.
Tammy P. Friederichs, Bloomington, MN, Stephen M. Thompson, on the brief, Bloomington, MN, for appellant.
Before LOKEN, MELLOY, and SHEPHERD, Circuit Judges.
MELLOY, Circuit Judge.
Wal-Mart Stores, Inс. (“Wal-Mart“) terminated Chestine Clay in September of 2006. Clay sued Wal-Mart under the Minnesota Human Rights Act (“MHRA“), alleging that Wal-Mart terminated her and took other adverse employment actions against her because she made complaints of discrimination. The district court1 granted summary judgment in favor of Wal-Mart. Clay appeals, and we affirm.
I. Background
Clay, an African-American woman, began working for Wal-Mart at a Mississippi store in 2002. She completed the company‘s mаnagement training program and became an assistant manager at a Fridley, Minnesota store in 2003. In 2005, Clay became the manager of the Vision Center at a Bloomington, Minnesota store. As manager, Clay was responsible for handling the Vision Center‘s budget, inventory, and personnel.
Shortly after becoming manager in 2005, Clay felt two other Wal-Mart employees had discriminated against her because of her race. Specifically, according to Clay, an employee named LaRae “yelled at” her for “retrieving documents from [a] printer” and another employee named Tina refused to process claims that Clay submitted regarding the Vision Center‘s damaged goods. Clay believed these were instances of race-based discrimination and reported them to Curtis Knipp, the Bloomington store manager, and Becky Fritz, the district manager who was Clay‘s immediate supervisor.
Knipp told Clay that hе had spoken with LaRae and Tina regarding Clay‘s complaints, but, according to Clay, “nothing seemed to change” in LaRae‘s and Tina‘s conduct. Thus, on August 31, 2005, Clay filed a formal complaint of race discrimination with Dennis Davis, a Wal-Mart district manager. After interviewing Clay and speaking with LaRae and Tina, Davis told Clay that he did not believe she had been the victim of race discrimination. Although Clay disagreed, she believed Davis‘s investigation resulted in an improvement in LaRаe‘s and Tina‘s conduct.
Later, however, Clay believed LaRae and Tina had “resumed their inappropriate and discriminatory conduct against” her. Additionally, Clay believed that Knipp had discriminated against her by failing to provide certain assistance that Clay requested, by excluding Clay from management meetings, and by generally treating Clay with a lack of courtesy, such as by failing to greet her and by offering her a piece of candy from his mouth. Thus, at some point prior to July of 2006, Clay reported LaRae‘s, Tina‘s, and Knipp‘s allegedly discriminatory conduct to Fritz. Then, in July of 2006, Clay reported this conduct to Deb Thoennes, who had replaced Fritz as Clay‘s supervisor. According to Clay, however, Thoennes “was not interested in hearing about” Clay‘s discrimination complaints.
In August 2006, Thoennes investigated Clay‘s performance as the manager of the Vision Center. Four Wal-Mart employees who either worked with Clаy or worked under her supervision gave written statements that criticized Clay‘s management
Around this time, Charlene Munson, one of the employees who Clay supervised, asked Clay to “give her a call to let [Munson] know how [Clay] was doing.” On August 29, therefore, Clay called Munson at home during “nonworking hours.” During the roughly hour-and-a-half long phone call, Clay and Munson talked about some personal issues and some “work-related issues.” According to Munson, Clay said she was having a difficult time getting along with several of the employees in the Vision Center. Additionally, according to Munson, Clay was troubled by the fact that several of her co-workers had written statements criticizing her performance.2 It is unclear whether Clay knew during this phone call that Munson was one of the employees who had criticized Clay‘s performance.
On August 31, Clay again reported acts of alleged discrimination by LaRae, Tina, and Knipp. Many of Clay‘s allegations were similar to those she had previously made. Additionally, however, Clay claimed that Knipp had failed to timely replace light bulbs in the Vision Center and had failed to provide the Vision Center with storage space that Clay had requested. Clay discussed these allegedly discriminatory acts with Thoennes in a meeting that was held on August 31.
On September 4, Munson was having a conversation with Knipp in the Vision Center. During the course of the conversation, Munson mentioned the telephone conversation that she had with Clay on August 29. Upon hearing about the telephone conversation, Knipp informed Munson that she should be compensated for the time she spent talking on the phone with Clay. Thus, Munson wrote a statement regarding the nature of the August 29 phone call, submitted the statement to Knipp, and subsequently received compensation for her time.
On September 6, Thoennes met with Clay and discussed the August 29 phone call. Thoennes told Clay that the phone call had violated Wal-Mart‘s “Wоrking Off The Clock” policy, which prohibits “supervisor[s] or manager[s] [from] request[ing] that Associates work off the clock.” Essentially, employees work off the clock when they perform work without receiving compensation for the time they work. Thoennes then told Clay that because of Clay‘s policy violation, Thoennes was terminating her.
On August 29, 2008, Clay and a co-plaintiff sued Wal-Mart in Minnesota state court.3 Clay alleged that Wal-Mart had violated the
Clay appeals the district court‘s grant of summary judgment in favor of Wal-Mart. Clay does not appeal the court‘s disposition of her race- and gender-discrimination claims. Rather, Clay argues that the district court erred in granting summary judgment in favor of Wal-Mart on her retaliation claims.
II. Discussion
“We review a district court‘s grant of summary judgment de novo, reading the record in a light most favorable to the nonmoving party and giving the nonmoving party the benefit of all reasonable inferences drawn from the record.” Colenburg v. Starcon Int‘l, Inc., 619 F.3d 986, 992 (8th Cir.2010) (internal quotation marks omitted). “We will affirm if no genuine issue of material fact exists and the [movant] is entitled to judgment as a matter of law.” Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 792 (8th Cir.2009).
Clay argues that there is a genuine issue of material faсt regarding whether Wal-Mart retaliated against her on several occasions for reporting alleged acts of discrimination. Under the
To establish a prima facie case of retaliation under the
Clay argues that on numerous occasions she engaged in protected activity by reporting alleged acts of discrimination. There is evidence that Clay reported acts of discrimination (1) to Knipp at some point before August 31, 2005, (2) to Davis on August 31, 2005, (3) to Fritz at some point before July of 2006, (4) to Thoennes in July of 2006, and (5) again to Thoennes on several days between August 22 and 31, 2006. Wal-Mart does not dispute that Clay‘s complaints of discrimination were protected activity. Thus, we will аssume that Clay has established the first prong of her prima facie case of retaliation.
Under the second prong of her prima facie case, Clay argues that she suffered a number of adverse employment actions after her discrimination complaints. First, she argues that she suffered adverse employment actions when Knipp “treat[ed] her with disrespect,” “refus[ed] to acknowledge her in common greetings,” and “demean[ed] her by offering her a piece of candy he had in his mouth.” We disagree with Clay that these are adverse employment actions. Generally, adverse employment action is “action that would deter a reasonable employee from making a charge of employment discrimination or harassment.” Fercello, 612 F.3d at 1077-78. However, “not everything that makes an employee unhappy is an actionable adverse action.” Devin v. Schwan‘s Home Serv., Inc., 491 F.3d 778, 789 (8th Cir. 2007). Here, although Knipp‘s allegеd actions may have been discourteous, they are
Clay also argues that she suffered adverse employment actions when Knipp failed to “provid[e] her with assistance in the same manner he provided to other department managers” and when Knipp “exclud[ed] her from management meetings.” Even if Knipp‘s alleged conduct constituted adverse employment actions, Clay has failed to show a causal connection between these actions and her protected activity. The record indicates that these adverse employment actions occurred sometime before Clay‘s fourth and fifth reports of discrimination. Thus, Knipp‘s conduct cannot be causally related to these reports. See Devin, 491 F.3d at 787 (indicating there can be no causal connеction between adverse employment action and protected activity when the adverse employment action occurred before the protected activity). Clay‘s argument that Knipp‘s conduct is causally related to Clay‘s first, second, or third reports of discrimination is based upon the temporal proximity between the reports and the adverse employment actions. However, Clay has failed to produce evidence indicating that the temporal proximity between these actions and Clay‘s reports of discrimination was close. See, e.g., Arraleh v. Cnty. of Ramsey, 461 F.3d 967, 978 (8th Cir. 2006) (evidence indicating that a “period of three weeks” has passed between protected activity and adverse employment action “may suffice to establish causation“). Consequently, Clay has failed to establish a causal relationship between any of her protected activity and Kniрp‘s failure to assist Clay or Knipp‘s exclusion of Clay from meetings.
Clay next argues that she suffered adverse employment actions when Thoennes and Knipp “secretly solicited written statements” from Clay‘s co-workers regarding Clay‘s performance after July of 2006 and when Thoennes issued Clay “an unjustified discipline” on August 28 for poor customer and member service. Again, even if these were adverse employment actions, Clay has failed to show a causal connection between them and her discrimination complaints. Clay argues that there is a causal connection between her fourth and fifth reports of discrimination and these adverse employment actions because the actions occurred close in time to Clay‘s protected activity. We have stated, however, that engaging in protected activity does not “insulate an employee from discipline for violating the employer‘s rules or disrupting the workplace.” Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir.1999). Specifically, “[e]vidence that the employer had been concerned about a problem before the employee engaged in the protected activity undercuts the significance of temporal proximity.” Hervey v. Cnty. of Koochiching, 527 F.3d 711, 723 (8th Cir.2008). This is a case where the significance of temporal proximity is undercut because the record indicates that Wal-Mart disciplined Clay for deficienсies in her management of the Vision Center on April 7, 2006, and for deficiencies in her customer service on June 6, 2006. Thus, in the circumstances of this case, Clay‘s evidence is insufficient to create a triable issue of fact regarding whether Wal-Mart investigated or disciplined Clay because she made her fourth and fifth reports of discrimination.
Finally, Clay argues that she suffered an adverse employment action when Wal-Mart terminated her. We assume that Clay has established a prima facie case of retaliation based upon her termination. Under the McDonnell Douglas framework, therefore, “the burden shifts to [Wal-Mart] to articulate a legitimate, non-retaliatory reason for its action.” Fercello, 612 F.3d at 1078. Wal-Mart claims that Thoennes terminated Clay because
Clay argues that Wal-Mart‘s proffered reason is pretextual because her phone call with Munson did not actually violate Wal-Mart‘s working-off-the-clock policy. However, “[i]nsofar as [Clay] argues there is a genuine issue of fact аbout whether she actually violated company policy and thus deserved to be [terminated], her argument is misdirected.” Alvarez v. Des Moines Bolt Supply, Inc., 626 F.3d 410, 416 (8th Cir.2010). “The relevant inquiry is whether [Thoennes] believed [Clay] was guilty of the conduct justifying discharge.” Richey, 540 F.3d at 784 (internal quotation marks omitted). This is because “[i]f the employer takes an adverse action based on a good faith belief that an employee engaged in misconduct, then the employer has acted because of perceived misconduct, not because of protected status or activity.” Id.
Clay argues there is a triable issue of fact regarding whether Thoennes believed Clay violated the working-off-the-clock policy. Clay notes that Thoennes based her conclusion that Clay had violated the policy in large part upon Munson‘s statement regarding the nature of the August 29 telephone conversation. In the statement, Munson noted that Clay had talked about оngoing work-related issues, but Munson did not indicate that Clay had asked Munson to perform any particular work-related tasks during the conversation. Accordingly, Clay argues, Thoennes could not have honestly believed that Clay had violated the working-off-the-clock policy.6
Clay essentially asks us to find that a phone conversation during non-working hours regarding work-related issues between a supervisor and an employee who she supervises does not violate a policy prohibiting “supervisor[s] or manager[s] [from] request[ing] that Associates work off the clock” and that any belief to the contrary cannot be honestly held. Clay‘s argument requires us to interpret an employer‘s policy, however, which we are generally reluctant to do. See Richey, 540 F.3d at 786 (“It is generally for an employer to interpret its own policies....“). This is because “[w]e do not sit as [a] super-personnel department[ ] reviewing the wisdom or fairness of the business judgments made by employers, except to the extent that those judgments involve intentional discrimination or unlawful retaliation.” Logan v. Liberty Healthcare Corp., 416 F.3d 877, 883 (8th Cir.2005) (internal quotation marks omitted).
Besides her own interpretation of Wal-Mart‘s policy, Clay presents no evidence indicating that Thoennes did not honestly believe that Clay had violated the working-off-the-clock policy. The record indicates
Accordingly, Clay has failed to create a triable issue of fact regarding whether Wal-Mart retaliated against her for reporting alleged discrimination. Therefore, the district court properly granted Wal-Mart summary judgment on Clay‘s retaliation claims under the
III. Conclusion
For the foregoing reasons, we affirm the judgment of the district court.
LOKEN, Circuit Judge, concurring.
I join the opinion of the court. I write separately to add an additional factor supporting the conclusion that Wal-Mart‘s stated reason for terminating Chestine Clay was not pretextual. Wal-Mart‘s Working Off The Clock policy is an important part of its efforts to comply with the federal