Case Information
*1 Before LOKEN, Chief Judge, JOHN R. GIBSON, and MURPHY, Circuit Judges.
___________
JOHN R. GIBSON, Circuit Judge.
This appeal is the culmination of a four-year span of litigation involving Abdel Elnashar, his former employer Speedway SuperAmerica, the FBI, and the Department of Justice. The heart of the litigation is Elnashar's claim that SuperAmerica discriminated against him on the basis of his Arabic race in the wake of the September 11, 2001, terror attacks. Throughout the litigation, he has planned to prove *2 SuperAmerica's discriminatory intent by seeking certain confidential FBI files, which he believes show that a SuperAmerica employee falsely informed the FBI that he was engaged in bomb-making activities. The district court [1] denied his motion to compel the FBI to producе the files, denied his motion for a continuance, and granted summary judgment to SuperAmerica on the employment discrimination claims. We affirm.
I.
Elnashar is an Arab-American, born in Egypt, and is a Muslim. He was hired as a manager trainee at the Bloomington, Minnesota, Speedway SuperAmerica store in the summer of 2001. Manager trainees may have the opportunity to become store managers after they complete various performance goals, and Elnashar hoped to become a SuperAmerica store manager. In September 2001, he was transferred to the Rice Street store in St. Paul, to assist a new manager who had recently been promoted from a manager trainee position. In November, he requested to be transferred to a store where he could work with a more experienced manager. The district manager, Mark Erickson, transferred Elnashar to the Seventh Street store in St. Paul, where he worked with store manager Anne Stehr and associate manager Jean Schneider. While he was at the Seventh Street store, Elnashar's position changed from manager trainee to assistant manager trainee. His corporate allotment of manager trainee hours had run out and, based on reports from Elnashar's supervisors at the Bloomington and Rice Street stores, Erickson did not believe Elnashar was ready for promotion to a mаnager position at that time. In addition, Elnashar's scheduled hours were cut from full time to sixteen hours per week in early 2002. SuperAmerica attributes the reduction to a company policy of reducing employees' hours in the slow post-holiday season, as well *3 as Elnashar's expressed desire to work fewer hours, but Elnashar denies requesting a reduction in hours.
Elnashar also experienced interpersonal difficulties with associate manager Schneider at the Seventh Street store. His work was not as focused on managerial training as he would have liked; instead, Schneider asked him to perform tasks a cashier could do, such as mopping the floor, and belittled him in front of coworkers and customers. In addition, Schneider asked him if he had a harem, how many wives he had as a Muslim, and whether he rode camels around everywhere in Egypt. Elnashar also reports that Schneider made unwelcome body contact with him when they were working together in close quarters. According to Schneider, Elnashar was rude to her and others, refused to perform certain tasks and work certain shifts, and walked out of his shifts at least twice after losing his temper during arguments with her. In March 2002, after one employee told Schneider that she felt Elnashar was harassing her because of her race, Schneider reported the complaint to Erickson, who issued Elnashar a written warning for refusing to perfоrm shift duties, leaving his shift, and creating a hostile work environment. Erickson asked Elnashar to sign the warning, but he protested and left work. He did not return to work in the following days but waited for Erickson to “call [him] and set things straight.” That call never came, and SuperAmerica ultimately classified Elnashar as having voluntarily resigned by abandoning his job.
Shortly after these events, in the spring of 2002, FBI agents visited Elnashar's former supervisors at the SuperAmerica stores to inquire about his address and background as part of its PENTTBOM investigation into the September 11, 2001, terror attacks. Schneider and Stehr were incorrect in some of the background information they gave the FBI, particularly regarding where Elnashar grew up. In April 2002, two FBI agents came to Elnashar's home, questioned him about whether he was engaged in making bombs, and searched his house. They found nothing suspicious and told him that the investigation would be closed. According to *4 Elnashar, one of the agents, Myron Umbel, told him that someone from Speedway SuperAmerica had called the FBI to report that Elnashar was making bombs.
Elnashar filed suit against SuperAmerica for employment discrimination on October 10, 2002. He argued that SuperAmerica failed to promote him, demoted him, and constructively discharged him because of his race, in violation of 42 U.S.C. §§ 1981, 1981a, and 2000e-2000e(17). [2] On the basis of Agent Umbel's tip that a SuperAmerica employee was the informant who falsely told the FBI he was making bombs, Elnashar embаrked on a quest to obtain proof of the informant's identity to show SuperAmerica's racial animus against Arabs. Elnashar's various attempts to obtain this information all have been unsuccessful, as recounted below in the convoluted procedural history of this case.
Elnashar first requested by letter in February 2003 that the FBI send him the
records of his investigation. The FBI treated this as a request for access under the
Freedom of Information Act (FOIA) and the Privacy Act and denied it, invoking the
FOIA law enforcement exemption and Privacy Act protection for the informant's
identity. Elnashar initially did not seek administrative appeal of this decision. Rather,
he served a subpoena on the FBI demanding the records and Agent Umbel's testimony
and filed a motion to compel production. The magistrate
[3]
denied this motion because
Elnashar had not exhausted his administrative remedies, i.e. the Department of Justice
procedures formulated in response to United States ex rel. Touhy v. Ragen, 340 U.S.
462 (1951), which establish a chain of command for determining whether Department
*5
of Justice employees will disclose confidential material, id. at 468. After this ruling,
Elnashar followed the Touhy procedures and resubmitted his request to the FBI. He
obtained a redacted copy of his FBI record, but the FBI still refused to disclose the
informant's identity. Elnashar served a Rule 30(b)(6) subpoena for the files,
specifically demanding to learn the identity of the informant and whether he or she
was employed by SuperAmerica, and he moved the court to compel production. The
FBI objected, citing several grounds including the common law confidential informant
privilege and Touhy regulation 28 C.F.R. § 16.26(b)(4). The magistrate reviewed the
unredacted files in camera and ultimately denied Elnashar's motion to compel in her
Order of September 7, 2004, concluding that the FBI did not abuse its discretion in
refusing to disclose the material on the basis of the confidential informant privilege
where the files showed that the informant had been assured confidentiality and
Elnashar's need for the informant's identity was speculative. The magistrate also
concluded that the Touhy regulations were valid. The district court affirmed on
October 29, 2004. Elnashar immediately appealed that decision to this Court, and we
held that we lacked jurisdiction to rule on the interlocutory order.
[4]
Elnashar v.
Speedway SuperAmerica, LLC,
While his discovery motions were pending in his suit against SuperAmerica, Elnashar also filed a separate lawsuit against the Department of Justice, the FBI, Agent Umbel, and other unknown FBI agents seeking expungement of his record, access to his record, and damages under the Privacy Act, FOIA, and several constitutional amendments. The district court granted summary judgment to the defendants. This Court affirmed. Elnashar v. United States Dep't of Justice, 446 F.3d 792 (8th Cir. 2006).
*6 Elnashar's inability to obtain the FBI files and to depose Agent Umbel also prompted him to rеquest a stay of SuperAmerica's motion for summary judgment while his appeal of the interlocutory order was pending. The district court denied this request, treating it as a motion for a continuance under Federal Rule of Procedure 56(f). The district court found that Elnashar had not shown good cause for his failure to depose Agent Umbel during the two years his suit had been pending and that he had not shown that the information was likely to raise a genuine issue of material fact on his discrimination claims.
With the discovery motions resolved, the district court granted SuperAmerica's motion for summary judgment on Elnashar's substantive race discrimination claims on September 22, 2005, finding that many of the events Elnashar experienced at SuperAmerica were not adverse employment actions, Elnashar failed to show that SuperAmerica's legitimate nondiscriminatory reasons for its actions were pretextual, and Elnashar's experiences did not rise to the level of actionable harassment on his hostile environment claim. [5]
*7 II.
A. Discovery Motions
Elnashar appeals all orders denying his attempts to learn the identity of the
informant whose tip prompted the FBI to investigate him. These orders include the
district court's order denying his motion to compel the FBI to produce the relevant
files and Agent Umbel's testimony and its denial of his motion for a continuance. In
addition, Elnashar expends substantial efforts in his brief challenging the district
cоurt's grant of summary judgment to the Department of Justice and FBI on his FOIA
and Privacy Act claims. We already have reviewed and affirmed the district court's
judgment on these claims,
1. Motion to compel
We generally review the denial of a motion to compel production of evidence
for gross abuse of discretion. Toghiyany v. AmeriGas Propane, Inc.,
The district court summarily affirmed the magistrate's order denying Elnashar's
motion to compel the FBI to disclose the informant's identity. In explaining why
Elnashar was not entitled to this information, the magistrate accepted the FBI's
contention that the informant's identity was privileged under Roviaro v. United States,
*8
We see no abuse of discretion, gross or otherwise, in the district court's decision
to affirm the magistrate's denial of Elnashar's motion to compel. Elnashar argues that
the magistrate incorrectly placed the burden on him to show need for the information,
where she first should have required the FBI to show that the informant's identity was
indeed privileged by proving that the informant had been promised confidentiality,
citing Department of Justice v. Landano,
We also reject Elnashar's argument that the district court abused its discretion
by upholding the Touhy regulations, which enable the Attorney General to prevent
employees from disclosing information that “would reveal a confidential source or
informant,” 28 C.F.R. § 16.26(b)(4). Elnashar contends that these regulations exceed
the agency's authority, because the enabling act does not authorize the DOJ to create
substantive regulations that “withhold[] information from the public or limit[] the
availability of records to the public,” 5 U.S.C. § 301. Elnashar's contention is
*10
misplaced. While the language he cites does constrain the Attorney General from
clаiming an executive privilege on the basis of 5 U.S.C. § 301, see Kwan Fai Mak v.
FBI,
2. Motion for continuance
We review the denial of a motion for continuance under Fed. R. Civ. P. 56(f)
for abuse of discretion. In re Temporomandibular Joint (TMJ) Implants Prods. Liab.
Litig.,
B. Discrimination Claims
Elnаshar's substantive claims alleged that SuperAmerica discriminated against
him because of his race by failing to promote him to the position of manager;
demoting him in terms of work location, job title, and hours; reprimanding him;
constructively discharging him; and subjecting him to a hostile work environment.
The district court granted summary judgment to SuperAmerica on all claims. Mindful
that summary judgment should be granted in employment discrimination cases only
if the evidence could not support any reasonable inference 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 SuperAmerica is entitled to judgment as a matter
of law. Peterson v. Scott County,
Under the McDonnell Douglas framework, the plaintiff bears the initial burden
of making out a prima facie case of discrimination. McDonnell Douglas,
The district court rejected Elnashar's claim that SuperAmerica discriminated
against him on the basis of his race when it promoted a white manager trainee instead
of him to the position of manager at the Rice Street store. The court concluded that
SuperAmerica asserted legitimate, nondiscriminatory reasons for not promoting
Elnashar to manager because the individual it promoted had more relevant experience
than Elnashar and Erickson had concerns that Elnashar was insubordinate. See Pope
v. ESA Servs., Inc.,
2. Demotion
Elnashar alleges that SuperAmerica discriminated against him on the basis of
his race by demoting him. Elnashar argues that his transfer to the Seventh Street store,
change in job title from manager trainee to assistant manager trainee, and reduction
in hours each amounted to a demotion. The district court held that the work location
transfer was not an adverse employment action, and thus Elnashar failed to establish
a prima facie case on that incident, because it did not entail a significant change in
working conditions or a diminution in Elnashar's title, salary, or benefits. See Zhuang
v. Datacard Corp.,
Elnashar's job title reclassification from manager trainee to assistant manager trainee, on the other hand, was an adverse employment action. SuperAmerica district manager Erickson admitted as much in his deposition. However, SuperAmerica offered legitimate, nondiscriminatory reasons for the reclassification--Elnashar's allotment of manager trainee hours had expired, and Erickson did not feel Elnashar was ready for promotion to manager because his supervisors had reported incidents of insubordination. On the issue of Elnashar's reduction in hours, SuperAmerica does not dispute that Elnashar established a prima facie case, but it offers its company policy of making store-wide reductions as a legitimate, nondiscriminatory reason for reducing Elnashar's hours.
Elnashar argues that SuperAmerica's reasons for changing his title and reducing
his hours are pretextual, on several theories. First, he argues that certain statements
by his coworkers show SuperAmerica's underlying discriminatory intent. According
to Elnashar, Schneider inquired whether hе had a harem and rode camels in Egypt.
Elnashar has not connected these comments to Schneider's decisions about his
schedule and has not shown that any other decisionmaker at SuperAmerica endorsed
them, however, so the district court was correct to characterize them as “stray remarks
in the workplace.” Breeding,
Elnashar also contends that SuperAmerica has manufactured its asserted reasons for his demotions after the fact to cover up a conspiracy to fire him. He doubts that SuperAmerica really had an hours-reduction policy in early 2002, pointing out that Stehr and Schneider never cut their hours and that Erickson does not remember ordering a district-wide reduction in hours. He further contends that the managers' testimony that Erickson ordered the demotions is inconsistent with company records because someone other than Erickson signed the “Employee Data Change Forms” that changed his title and cut his hours, and no one had Elnashar sign the forms as required by SuperAmerica policy. None of these arguments raises a genuine issue of material fact to support Elnashar's thеory of pretext. That Stehr and Schneider's hours were not cut is not evidence of pretext, because Elnashar was not similarly situated to Stehr and Schneider, who outranked him. Erickson's inability to recall the hours-reduction policy does not dispute Stehr and Schneider's testimony that the policy existed. Finally, SuperAmerica's failure to comply with its communication policies in changing Elnashar's status, and that someone other than Erickson signed the formal documentation of those changes, may suggest that SuperAmerica was disorganized, but not that its asserted reasons for demoting Elnashar are pretext for a conspiracy to fire him on account of his race.
Elnashar also urged the district court to find pretext on the basis of his evidence
that a SuperAmerica employee provided a false tip about him to the FBI. The district
court found this theory to be totally unsubstantiated. As all of Elnashar's attempts to
compel disclosure of the informant's identity had failed, his only evidence of this
theory was his testimony that Agent Umbel told him that a SuperAmerica employee
called the FBI to report that he was making bombs. The district court correctly
concluded that this evidence was inadmissible hearsay and thus could not raise a
genuine issue of material fact. Elnashar argues that the statement should have been
*16
admitted through exceptions to the hearsay rule in Federal Rules of Evidence
804(b)(3) and 807. Like the district court, we reject this argument. First, Agent
Umbel was not “unavailable” as required for the Rule 804(b)(3) statement against
interest exception. To show that a witness is unavailable, the proponent of the hearsay
statement must attempt in good faith to locate and subpoena the witness. United
States v. Harbin,
3. Reprimand
Elnashar also argues that SuperAmerica discriminated against him when
Erickson issued him a written reprimand. Like the district court, we reject this theory
because the reprimand was not an adverse employment action. A reprimand is an
adverse employment action only when the employer uses it as a basis for changing the
terms or conditions of the employee's job for the worse. Singletary v. Mo. Dep't of
Corrections,
4. Constructive discharge
Elnashar resigned his position at SuperAmerica after the reprimand but
characterizes this as a constructive discharge, pointing to Schneider's poor treatment
of him and to Erickson and Stehr's inadequate consideration of his side of the story.
Constructive discharge occurs when an employer deliberately creates “intolerable
working conditions with the intention of forcing the employee to quit” and the
employee does quit. Breeding, 164 F.3d at 1159 (internal quotation marks and
citation omitted). To show he was constructively discharged, Elnashar would have
to show that a reasonable person in his situation would find the conditions intolerable
and that SuperAmerica intended to force him to quit. Tatum v. Ark. Dep't of Health ,
5. Hostile work environment
Finally, Elnashar claims that SuperAmerica subjected him to a hostile work
environment at the Seventh Street store, again primarily because of Schneider's
conduct. To establish this claim, Elnashar would have tо show that: (1) he belongs
to a protected group; (2) he was subjected to unwelcome harassment; (3) a causal
nexus exists between the harassment and his group membership; and (4) the
harassment affected a term, condition, or privilege of his employment. Gordon v.
Schafer Contracting Co.,
III.
Because the evidence cannot support any reasonable inference of discrimination, SuperAmerica was entitled to summary judgment. In addition, the district court did not abuse its discretion in refusing to grant a continuance and compel disclosure of additional evidence that Elnashar only speculated would save his case. Thus, we affirm the judgment of the district court in all respects.
______________________________
Notes
[1] The Honorable Joan N. Ericksen, United States District Judge for the District of Minnesota.
[2] Elnashar also initially alleged national origin and religious discrimination, as
well as violations of Minnesota employment statutes, but he abandoned the national
origin and religious discrimination claims in the district court and abandoned his state
law claims by failing to raise them in his briefs to this Court. See Griffith v. City of
Des Moines,
[3] The Honorable Janie S. Mayerоn, United States Magistrate Judge for the District of Minnesota.
[4] Now that the district court has granted summary judgment to SuperAmerica, the denial of Elnashar's motion to compel is properly before us.
[5] Elnashar challenges the district court's analysis of his race discrimination
claims only in his reply brief, focusing entirely on the continuance, discovery, FOIA,
and Privacy Act issues in his opening brief. We have discretion to refuse to consider
issues an appellant fails to raise in his or her initial brief, but we will review the grant
of summary judgment to SuperAmerica on the discrimination claims in this case
where SuperAmerica has fully addressed those claims in its brief and Elnashar's
opening brief states that he appeals the grant of summary judgment. See United States
v. Head,