Monica Watson v. Denis McDonough, Secretary, Department of Veterans Affairs
No. 19-3127
United States Court of Appeals For the Eighth Circuit
Submitted: November 18, 2020; Filed: May 6, 2021
Appeal from United States District Court for the Western District of Missouri - Kansas City
Before COLLOTON, ARNOLD, and KELLY, Circuit Judges.
Monica Watson sued the Secretary of the Department of Veterans Affairs under
I.
Watson, who is a Black woman, began working for the VA as a Medical Records
Laurie Schwab was Watson‘s supervisor during this period. According to Watson, Schwab failed to provide the CDI coders, three out of four of whom were Black women, with training and guidance on their new auditing and teaching duties, but she nonetheless “expected [them] to perform perfect work.” Record evidence shows that the CDI coders, as well as the VA employees’ union president, felt the CDI coders were “being isolated,” “set up for failure,” and “targeted by Schwab.”
During an October 19, 2015 staff meeting, Schwab and another supervisor told Watson and the other CDI coders that senior VA officials were considering disbanding the new CDI program. Both parties acknowledge that the program was contributing to a growing backlog of medical coding work because former medical records coders were now tasked with additional auditing and training responsibilities. Watson and the other CDI coders were assigned extra coding work to “help with the backlog.”
Watson and Schwab‘s professional relationship became increasingly strained. A few days after the October 19 meeting, Schwab evaluated Watson‘s job performance as “Fully Successful,” rather than “Outstanding” or “Excellent.” This rendered Watson ineligible for a Special Advancement Award. Then, during a March 6, 2016 meeting, Schwab “expressed a lack of confidence in the ability of [Watson] and another CDI [coder] to perform the training duties of the CDI[] positions.” According to the employees’ union representative, who also attended the meeting, Schwab told Watson and another coder, who is also Black, that they “did not know how to talk to people” and that “she could not put [them] in front of physicians in a classroom setting . . . because it would make her look bad.”
Two weeks later, Schwab gave Watson a written counseling raising “concerns about [her] failure to follow instructions as a VA employee.” The counseling memorandum asserts that on two occasions Watson failed to turn in work assignments by the agreed upon deadline. The memorandum instructed that, going forward, Watson was to send presentation materials to Schwab “to proof” before meetings with healthcare providers, address Schwab “professionally” in emails, and “have eye contact and speak back if necessary” when talking to her.
A few days after receiving the counseling memorandum, Watson began attending Equal Employment Opportunity (EEO) counseling at the VA. When
counseling concluded, the VA issued Watson a Notice of Right to File a Discrimination Complaint. She resigned from the VA on May 27, 2016 and filed a formal discrimination complaint with the agency three weeks
As part of that process, Watson provided an affidavit stating that Schwab had told a previous VA employee there were “too many blacks” working at the Kansas City VA.3 She also averred that under Schwab‘s supervision “ten African Americans ha[d] either been demoted, terminated, transferred, resigned, forced [to retire] or quit.” The VA ultimately determined that Watson “failed to demonstrate by a preponderance of the evidence that she was discriminated against as alleged.” The agency notified her that she could either appeal the decision or pursue a civil action in federal district court. Watson chose the latter path and filed this Title VII lawsuit.
II.
We review de novo a grant of summary judgment, “construing all facts and making all reasonable inferences favorable to the nonmovant.” Elec. Power Sys. Int‘l, Inc. v. Zurich Am. Ins. Co., 880 F.3d 1007, 1009 (8th Cir. 2018) (cleaned up). Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Congress enacted Section 717 of Title VII,
Where, as here, the plaintiff has not presented direct evidence to support her Title VII claims, we apply the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).4 See Elnashar v. Speedway SuperAmerica, LLC, 484 F.3d 1046, 1055 (8th Cir. 2007) (applying the burden-shifting framework to race discrimination, hostile work environment, and constructive discharge claims). Under McDonnell Douglas, the plaintiff has the initial burden to establish a prima facie case for each claim. See Pye v. Nu Aire, Inc., 641 F.3d 1011, 1019 (8th Cir. 2011). Successfully doing so “creates a rebuttable presumption of discrimination” and shifts the burden to the defendant to produce “a legitimate, nondiscriminatory reason for its decision.” Id. If the defendant manages to do so, “the presumption disappears,” and the burden returns to the plaintiff to prove “that the proffered reason was pretext for discrimination.” Id.
The district court concluded that Watson‘s claims failed at the first step because she did not establish a prima facie case of race discrimination, hostile work environment, retaliation, or constructive discharge. Her race discrimination claim is based on the assertion that she was treated less favorably than white medical coders at the VA. Specifically, Watson asserts that supervisors unfairly assigned her additional coding work, among other actions, thereby limiting her opportunities
Cnty. Special Sch. Dist., 956 F.3d 1055, 1058 (8th Cir. 2020) (cleaned up) (quoting Macklin v. FMC Transp., Inc., 815 F.3d 425, 427 (8th Cir. 2016)).
There is no dispute that Watson, a Black woman, is a member of a protected class, or that she performed her job satisfactorily. But under this circuit‘s precedent, many of the events Watson presents as adverse employment actions—the decision not to “board”5 the CDI position, inadequate training on CDI duties, assignment of additional coding work, her performance review, and the written counseling—are not adverse employment actions for purposes of Title VII. See, e.g., Box v. Principi, 442 F.3d 692, 697 (8th Cir. 2006) (“[A]n employer‘s denial of an employee‘s request for training is not, without more, an adverse employment action.“) (quoting Griffith v. City of Des Moines, 387 F.3d 733, 737 (8th Cir. 2004)); Sallis v. Univ. of Minn., 408 F.3d 470, 476 (8th Cir. 2015) (stating that “minor changes in working conditions that merely inconvenience an employee or alter an employee‘s work responsibilities do not” rise to the level of an adverse employment action); Rebouche v. Deere & Co., 786 F.3d 1083, 1088 (8th Cir. 2015) (“[A] negative performance review on its own does not constitute an ‘adverse employment action’ . . . unless the review was relied on in making promotion [, demotion, or termination] decisions about the employee.“); Jackman v. Fifth Jud. Dist. Dep‘t of Corr. Servs., 728 F.3d 800, 805 (8th Cir. 2013) (holding that “the length of [plaintiff‘s] performance log and the number of coaching and counseling sessions she has endured” were not, in and of themselves, materially adverse employment actions).
Watson also claims that the VA passed over her for promotion opportunities, which we have recognized can constitute an adverse employment action. See AuBuchon v. Geithner, 743 F.3d 638, 643 (8th Cir. 2014). She asserts that white medical coders were promoted when she was not, and that the additional coding work
she was assigned caused her to miss out on opportunities for professional development that would have led to promotion. But Watson has not identified any specific position she expressed interest in and was passed over for. See Chambers v. Wynne Sch. Dist., 909 F.2d 1214, 1217 (8th Cir. 1990) (explaining that although “failure to formally apply for a job opening will not bar a Title VII plaintiff from establishing a prima facie claim [of discrimination],” the plaintiff must show that she “made every reasonable attempt to convey h[er] interest in the job to the employer” (quoting EEOC v. Metal Serv. Co., 892 F.2d 341, 348 (3d Cir. 1990))).
In addition, Watson relies on our decision in Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1997), to argue that the VA‘s conduct, when considered as a whole, amounts to an adverse employment action. In Kim, we recognized that a series of “serious employment consequences” that did not result in discharge, demotion, or suspension nevertheless constituted an adverse employment action sufficient to support
As to Watson‘s hostile work environment claim, to establish a prima facie case she must show that: “(1) she is a member of the class of people protected by [Title VII], (2) she was subject to unwelcome harassment, (3) the harassment resulted from her membership in the protected class, and (4) the harassment was severe enough to affect the terms, conditions, or privileges of her employment.” Mahler v. First Dakota Title Ltd. P‘ship, 931 F.3d 799, 806 (8th Cir. 2019) (quoting Blake v. MJ
Optical, Inc., 870 F.3d 820, 827 (8th Cir. 2017)). Assuming that Watson, a member of a protected class, was subject to racial harassment during her time at the agency, the evidence does not support a finding that the harassment materially affected the conditions of her employment. Any race-based harassment in the workplace is unreasonable and may, in turn, have the effect of interfering with an employee‘s performance. But to establish a prima facie case of hostile work environment under Title VII, there must be evidence that the harassment was “sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
While the record contains evidence of interactions between Schwab and Watson that could be understood as harassment, Watson has not shown that these experiences affected “a term, condition, or privilege of [her] employment.” Duncan v. County of Dakota, 687 F.3d 955, 959 (8th Cir. 2012). Watson‘s pay grade and salary remained the same throughout the timeframe at issue. Similarly, she has not presented evidence that the additional coding work she was assigned “resulted from her membership in the protected class.” Mahler, 931 F.3d at 806. We affirm summary judgment on the hostile work environment claim.
Next, Watson claims that Schwab retaliated against her for raising concerns about a hostile work environment to her employees’ union representative. To establish a prima facie case of retaliation, she must show that: (1) “[s]he engaged in protected conduct, (2) [s]he suffered a materially adverse employment action, and (3) the adverse action was causally linked to the protected conduct.” Pye, 641 F.3d at 1021. Because there is no evidence of an adverse employment action, the district court properly granted summary judgment to the VA on the retaliation claim.
Finally, Watson argues that the district court erred in granting summary judgment on her constructive discharge claim. To succeed on this claim, Watson “would have to show that [the VA] created ‘working conditions that were so
intolerable that a reasonable person in her position would have felt compelled to resign.” Garrison v. Dolgencorp, LLC, 939 F.3d 937, 943 (8th Cir. 2019) (cleaned up) (quoting Green v. Brennan, 136 S. Ct. 1769, 1776 (2016)). Watson has presented evidence that the conditions of her employment at the VA were far from ideal, but not that they were intolerable. Moreover, Watson‘s
We affirm the grant of summary judgment.