Ebony T. Jackman Plaintiff- Appellant
Fifth Judicial District Department of Correctional Services; Iowa Department of Corrections Defendants-Appellees
Submitted: April 11, 2013
Appeal from United States District Court for the Southern District of Iowa - Des Moines
Before MURPHY, BEAM, and BYE, Circuit Judges.
BEAM, Circuit Judge.
Ebony Jackman appeals the district court's grant of summary judgment in favor of the State of Iowa in this employment discrimination case. We affirm.
Jackman is an African-American woman who is and has been employed by the state as a residential officer at the Fort Des Moines Residential Facility since 2000. She alleges that she has been subjected to a variety of discriminatory conduct and harassment by co-workers and a supervisor after she complained about an incident in November 2007 with her direct supervisor, Mary Little. Little complained that she did not like the three "black women" on her shift because one "whines all the time, " the second is "late all the time, " and the third "wants to leave all the time." Jackman confronted Little about these comments, and Little confirmed that she was referring to Jackman as the person who wanted to leave all the time. Jackman filed an internal written complaint based on this incident. Little also called Jackman at home and told her that Jackman did not need to coordinate her schedule with her husband's (who worked at the same place) because she was a "big girl"; suggested that Jackman switch to a part-time schedule to better care for her familial responsibilities; and also asked whether Jackman's husband had ever hit Jackman. In another incident, Little walked into the bathroom where Jackman was in a closed stall getting sick and yelled, "who's in there?" Other incidents comprising the basis of this lawsuit include a co-worker's comment that watching the movie "Roots" qualified as studying African-American culture, and a co-worker's ill-conceived joke suggesting that black people were prone to domestic violence.
In addition to the complaint filed against Little in 2007, Jackman filed a written grievance with her union representative on March 1, 2008, and filed this lawsuit on September 14, 2009. Specifically, she contends that the following investigations were in retaliation for her internal complaints and the instant federal court case: for her alleged misuse of sick leave and for a "count" violation, both in August 2010; and for abandoning her post and for allegedly intimidating a witness with regard to the post-abandoning incident, both in 2011. Plaintiff also asserts that she has been excessively "coached and counseled, " and points to her performance log, which is twenty-nine pages long, eleven pages longer than the performance logs for eight other employees combined, as an indication of discrimination and retaliatory conduct. It is undisputed that the state has never terminated, suspended, or demoted Jackman and she continues to be employed by the state without a loss in pay or benefits. Jackman alleges that, due to work-related stress from the described discrimination and harassment, she has exhausted her leave options and has had to borrow leave from a leave bank comprised of donated leave from other state workers.
Jackman filed the current action, alleging sex and race discrimination, retaliation and sex and race harassment, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and also brought a claim for retaliation in violation of the Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq. (FMLA). The state moved for summary judgment and the district court found that as a matter of law, the state's alleged conduct did not rise to the level of illegal discrimination or retaliation because Jackman suffered no adverse employment action. The court also found the alleged harassment was not sufficiently severe or pervasive to alter a term or condition of Jackman's employment. The district court dismissed all but one of Jackman's claims on summary judgment. It stayed her FMLA claim pending an anticipated Supreme Court ruling on the issue of whether states were entitled to Eleventh Amendment immunity for FMLA claims. While her FMLA claim was stayed but still pending, Jackman attempted to appeal the Title VII claims dismissed on summary judgment. We dismissed the appeal, pointing out that we did not have jurisdiction over the case because one of Jackman's claims was still pending. Subsequently, the Supreme Court ruled that states were entitled to Eleventh Amendment immunity against FMLA self-care suits. See Coleman v. Court of Appeals of Md., 132 S.Ct. 1327 (2012). Accordingly, the parties had a status conference with the district court to discuss how to proceed with the stayed claim. This conference occurred on June 27, 2012, and at this conference, Jackman moved to dismiss her FMLA claim. On July 2, 2012, the district court entered an order dismissing her FMLA claim without prejudice. No separate judgment was entered pursuant to Federal Rule of Civil Procedure 58 following this July 2, 2012, order. And, the stay originally entered by the district court in 2011 was still in place. Thus, on August 23, 2012, the district court, sua sponte, entered another order for "Entry of Amended Judgment, " asking the clerk to enter judgment with respect to Counts I, II and III (the Title VII claims). The district court also lifted the stay of the FMLA claim and dismissed the FMLA claim without prejudice. This amended judgment was entered by the clerk on August 24, 2012. It is from this August 24 order that Jackman appealed on September 19, 2012.
We review the district court's grant of summary judgment de novo, affirming only if there is no genuine issue of material fact, and the defendant is entitled to judgment as a matter of law. Butler v. Crittenden Cnty., Ark., 708 F.3d 1044, 1048 (8th Cir. 2013).
A. Adverse Employment Action
Jackman brought claims of race and sex discrimination and retaliation, all in violation of Title VII. However, each of these causes of action fail for the same reason: she has not suffered an adverse employment action. To establish a prima facie case of race or sex discrimination, Jackman must show that she: (1) is a member of a protected class; (2) was meeting her employer's legitimate job expectations; (3) suffered an adverse employment action; and (4) was treated differently than similarly situated employees who were not members of her protected class. Norman v. Union Pac. R.R. Co., 606 F.3d 455, 461 (8th Cir. 2010). To establish a prima facie case of retaliation, an employee has the initial burden of establishing retaliation by showing that (1) she engaged in protected conduct; (2) she suffered a materially adverse employment action; and (3) the adverse action was causally linked to the protected conduct. Pye v. Nu Aire, Inc., 641 F.3d 1011, 1021 (8th Cir. 2011). Further, retaliation must be the "but for" cause of the adverse employment action. Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2528 (2013).
An adverse employment action is defined as a tangible change in working conditions that produces a material employment disadvantage, including but not limited to, termination, cuts in pay or benefits, and changes that affect an employee's future career prospects, as well as circumstances amounting to a constructive discharge. Wilkie v. Dep't of Health and Human Servs., 638 F.3d 944, 955 (8th Cir. 2011). However, minor changes in duties or working conditions, even unpalatable or unwelcome ones, which cause no materially significant disadvantage, do not rise to the level of an adverse employment action. Id. In the retaliation context, a materially adverse action is one that "might have ...