Shеila E. Peterson, Appellant, v. Scott County; Scott County Sheriff‘s Department; William J. Nevin, Sheriff; Tom Helmrich, Jail Administrator, Appellees.
No. 04-2531
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Submitted: February 17, 2005 Filed: May 6, 2005
Before BYE, HEANEY, and MELLOY, Circuit Judges.
Sheila Peterson appeals the district court‘s grant of summary judgment in favor of her former employer, Scott County jail, and its administrators (collectively the County), on her claims of unlawful employment discrimination and retaliation. She contends that she established a genuine issue of material fact regarding whether her age and sex were motivating factors in the County‘s failure to hire her full time and failure to promote her to a full-time position, whether she was subject to a hostile environment, and whether the County unlawfully terminated her in retaliation for her
BACKGROUND
We recount the evidence in the light most favorable to Peterson. In response to a posted notice, Peterson applied for a correctional position with the Scott County Sheriff‘s Department on May 15, 2001. She was 51, had nine years of experience as a corrections officer, and met the minimum qualifications of the position.1 Peterson interviewed with Scott County on June 12, 2001. Three male applicants under 40, Kellace McDaniel, Marc Ravnholdt, and Gregg Krinke, also interviewed on the same day, and the County initiated background checks for all four applicants. The three male applicants were offered full-time jobs before their written background check summaries were completed.2 Peterson was offered an intermittent position after her background check was completed on August 29, 2001.
Peterson applied twice for promotions to full-time positions with the Sheriff‘s Department. These positions were given to Justin Lane and Todd Langevin. Lane did not initially meet the minimum qualifications for a full-time permanent position; after the requirements were changed on September 21, 2001 to include military experience, Lane was re-rated and met the revised qualifications. He was offered a full-time position on September 28, 2001. Todd Langevin also lacked the minimum
When Peterson started working at Scott County, her supervisor, Sergeant Dumbleton, repeatedly called her an “old lady,” and told her at one time to “put glasses on so [she] could hear.” (Appellant‘s App. at 166-67.) He told her that she “didn‘t have the right parts” to take additional shifts, (Appellant‘s App. at 182); when she asked to be included in training on booking inmates, he refused, saying thаt it “was too hard to train old ladies.” (Appellant‘s App. at 166.) These types of comments were made at least once a shift most of the days Peterson worked with Sergeant Dumbleton.
On one occasion Peterson‘s co-worker, Tom Bloedow, swore and screamed at her when she requested assistance releasing inmates. He told her that women were not needed at the jail because they were lazy. Peterson complained to the jail administrator, Tom Helmrich, about the age- and sex-related comments in October. On November 2nd and 5th, she complained to Sergeant Lenz regarding Bloedow and Dumbleton. In response, Lenz discussed proper language with Officer Bloedow, and reported the incident to Tom Helmrich. Lenz also sent an email to Helmrich recounting his problems with Peterson‘s performance. Sergeant Lenz reported that Peterson allowed an inmate to leave three hours early on work release, destroyed an inmate funds receipt, and that caseworkers had problems with her calling them inappropriately and trying to tell them how they should do their jobs.
Peterson learned on November 19th that other officers were mimicking her and making fun of her complaints. The following day Peterson called in sick because she felt that the situation was escalating. She left a voice mail with Pam Johnson, Scott
Peterson brought suit alleging discrimination based on age and gender, harassment, and retaliation in violation of Title VII,
ANALYSIS
I. Standard of Review
We review the district court‘s grant of summary judgment de novo. Summary judgment is appropriate if the facts, viewed in the light most favorable to the non-moving party, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
II. Age and Gender Discrimination
Peterson has not presented direct evidence of discrimination; we analyze her discrimination and rеtaliation claims using the familiar three-step, burden-shifting analysis set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Applying this framework, a plaintiff has the initial burden of establishing a prima facie case of discrimination. Id. at 802. The prima facie case raises a legal presumption of discrimination in the plaintiff‘s favor, requiring the defendant to articulate a legitimate, nondiscriminatory reason for its action. Id.; Tex. Dep‘t of Cmty Affairs v. Burdine, 450 U.S. 248, 253 (1981). The plaintiff then has the opportunity to demonstrate that the defendant‘s proffered reasons are in fact а mere pretext for discrimination. Burdine, 450 U.S. at 253; St. Mary‘s Honor Ctr. v. Hicks, 509 U.S. 502, 516-17 (1993) (clarifying that a plaintiff must show that the employer‘s proffer is a pretext for unlawful discrimination, not that it is merely false in some way). The evidence supporting the plaintiff‘s prima facie case may suffice to discredit the defendant‘s explanation, and the plaintiff is not required in all cases to introduce additional evidence to meet the burden of proof. Burdine, 450 U.S. at 255 n.10; Haglof v. Northwest Rehab., Inc., 910 F.2d 492, 494 (8th Cir. 1990). The ultimate burden of proving discrimination remains with the plaintiff at all times. Hicks, 509 U.S. at 518.
Peterson argues that we should apply a modified McDonnell-Douglas standard in light of Desert Palace Inc. v. Costa, 539 U.S. 90, 101-02 (2003), permitting her to survive summary judgment if she has raised a genuine issue of material fact that either the defendant‘s proffered reason for its action is a pretext for discrimination or
A. Failure to Hire
Reviewing the record de novo, we cоnclude that Peterson has met her prima facie burden. She is within the protected class in both the ADEA and Title VII contexts, met the qualifications for the corrections officer position, and was hired for a temporary, rather than full-time position while three younger male applicants, who interviewed on the same day, were hired for full-time positions. Scott County in turn has presented a legitimate non-discriminatory basis for the hiring decision. Applicants were hired on a rolling basis as their background checks were completed; Peterson‘s background check was completed after those of the other applicants. Therefore, the question on summary judgment is whether Peterson has shown there is a genuine factual controversy regarding whether the County‘s hiring decision was motivated by Peterson‘s age or sex.
Scott County argues that Helmrich in fact hired Peterson, raising a presumption against discrimination. This court has previously observed that it is not likely that a supervisor would hire an older woman and then discriminate against her on the basis of her age and gender. Herr v. Airborne Freight Corp., 130 F.3d 359, 362-63 (8th Cir. 1997). We are not persuaded that this presumption can be aрplied with equal force when an applicant is hired, not for the position to which she applied, but for a less desirable interim position. Evidence of this type of hiring may show discriminatory intent rather than raising a presumption against discrimination.
Evidence of a changing hiring process and fluid standards for applicants, taken together with the defendant‘s evolving explanation of its hiring decision, would allow a reasonable jury to infer that the County‘s explanation is a pretext fоr unlawful discrimination. See Gaworski v. ITT Commercial Fin. Corp., 17 F.3d 1104, 1110 (8th Cir. 1994) (noting that a jury could reject the employer‘s proffered reason for termination because there was conflicting evidence on its believability). On summary
B. Failure to Promote
Peterson claims that the County‘s failure to promote her to a full-time position was discriminatory. The County concedes that Peterson has established the first three elements of her prima facie case, but argues that she was not similarly situated to the successful candidates because the promoted officers had more experience working for the County, and were already full-time temporary employees. At the prima facie stage, the plaintiff‘s burden–showing she is similarly situated to other employees–is “not onerous.” Wheeler v. Aventis Pharm., 360 F.3d 853, 857 (8th Cir. 2004) (quoting Williams v. Ford Motor Co., 14 F.3d 1305, 1308 (8th Cir. 1994)). The record shоws that Peterson, Lane, and Langevin were recent hires, applying for full-time positions in the jail. All three were considered viable candidates for the position. See Ottman v. City of Independence, Mo., 341 F.3d 751, 757 (8th Cir. 2003) (finding candidates similarly situated where both met the minimum qualifications for the position). For the purposes of establishing a prima facie case, Peterson has shown that she was similarly situated to Lane and Langevin. Whether the applicants’ experience and qualifications were in fact a legitimate basis for the County‘s decision is more relevant to the issue of pretext than the plaintiff‘s prima facie burden.
The County explained that Lane and Langevin were promoted because they had worked longer in Scott County, and this experience was viewed as more important than other corrections experience. Peterson has shown, however, that at least one full-time officer, Gregg Krinke, had no previous corrections experience at Scоtt County or any other facility when he was hired. While Lane and Langevin both had
The County also claims that Peterson‘s poor performance and argumentative attitude provide a legitimate basis for preferring other candidates. In an email dated November 6th, Sergeant Lenz reported that Peterson allowed an inmate to leave three hours early on work release, destroyed an inmate funds receipt, and that caseworkers reported they found her difficult to work with. According to the County, the supervisors discussed these issuеs in a meeting, and determined that Langevin was the superior candidate for the temporary full-time position. The evidence, however, shows that Peterson‘s reported performance problems could not have influenced the promotion decision because they were not reported until after the team meeting; two of the incidents had not yet taken place. In addition, Peterson‘s supervisors deny stating that she was argumentative and deny discussing her qualificatiоns with Helmrich at the meeting. The conflicting testimony of the supervisors who were present at this meeting raises a genuine issue of material fact regarding the impact of Peterson‘s performance and attitude on its hiring decision. Although this is an admittedly close case, we conclude that there is sufficient evidence in the record to cause a jury to doubt the defendants’ reasons for not promoting Peterson.
To establish her hostile work environment claim, Peterson must show that: 1) she belongs to a protected group; 2) she was subjected to unwelcome harassment based on her age and sex; 3) the harassment affected a term, condition, or privilege of her employment; 4) her employer knew or should have known of the harassment; and 5) the employer failed to take proper action. Okruhlik v. Univ. of Ark., 395 F.3d 872, 881 (8th Cir. 2005). Harassment must be both objectively and subjectively offensive. We consider whether a reasonable person would find the environment hostile and аbusive in light of all the circumstances, including whether the conduct “is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee‘s work performance.” Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) (quoting Harris v. Forklift Sys., 510 U.S. 17, 23 (1993)). Neither “simple teasing” and “offhand comments” nor “sporadic use of abusive language, gender-related jokes, and occasional teasing” amount to discriminatory changes in the terms and conditions of employment or actionable harassment. Id. (citation omitted).
The record is not sufficient to support Peterson‘s claim. Her supervisor made regular references to “old ladies,” once did not allow her to participate in a training session because it was “too hard to train old ladies,” and once commented that she “didn‘t have the right parts” to fill in shifts. A co-worker on one occasion commented that women were lazy and were not needed at the jail. These appear to be the type of isolated incidents, tеasing and offhand comments which, while offensive, do not reach the level of harassment. Gipson v. KAS Snacktime Co., 171 F.3d 574, 579-80 (8th Cir. 1999); Wallin v. Minn. Dep‘t of Corrections, 153 F.3d 681, 688 (8th Cir. 1998). Accordingly, we affirm the district court‘s grant of summary judgment to the defendants on Peterson‘s hostile work environment claim.
To establish a prima facie case of retaliation, a plaintiff must show that she engaged in statutorily protected activity, suffered an adverse employment action, and that there was a causal connection between the adverse employment action and the protected activity. Smith v. Riceland Foods, Inc., 151 F.3d 813, 818 (8th Cir. 1998); Stevens v. St. Louis Univ. Med. Ctr., 97 F.3d 268, 270-71 (8th Cir. 1996). A defendant must present evidence of a legitimate, non-retaliatory reason for its action to rebut the plaintiff‘s prima facie case. The plaintiff must then show that the defendant‘s proffered reason was a pretext for retaliation. An inference of a causal connection between a charge of discrimination and termination can be drawn from the timing of the two events, Riceland, 151 F.3d at 819-20; Smith v. St. Louis Univ., 109 F.3d 1261, 1266 (8th Cir. 1997), but in general more than a temporal сonnection is required to present a genuine factual issue on retaliation, Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (en banc). The district court found that Peterson established a prima facie case of retaliation by showing that she engaged in protected conduct,3 complaining about discrimination of her employer in a November 20 conversation with Helmrich, and that she suffered an adverse
employment action when she was terminated on December 4th. The timing of the
The County argues that Peterson has not shown that its legitimate, non-discriminatory reasons for the termination–Peterson‘s missed shifts, attitude, and performance problems–were a mere pretext for retaliation. Peterson notes that her supervisors deny complaining about Peterson‘s performance or attitude and deny characterizing her performance problems as “serious.” In addition, Peterson suggests that a jury might infer from the timing of both Lenz and Helmrich‘s actions that the County was retaliating against her. Peterson does not deny destroying an inmate funds receipt, but argues that she was not trained on the procedure at the time, and that her supervisor agreed that this was not a deliberate violation of policy, but rather a training issue. He did not regard the matter as serious at the time. Peterson‘s supervisors, Dumbleton and Lenz, both deny complaining about her attitude or her performance.
After carefully reviewing the record, we conclude that there is sufficient evidence to permit a reasonable fact finder to determine that Scott County retaliated against Peterson on the basis of her complaints of discrimination and harassment.
IV. Qualified Immunity
Peterson‘s