United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-2587
___________
Claudia Fercello, *
*
Plaintiff-Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
County of Ramsey, *
*
Defendant-Appellee. *
___________
Submitted: May 12, 2010
Filed: July 29, 2010
___________
Before BYE, MELLOY, and SHEPHERD, Circuit Judges.
___________
MELLOY, Circuit Judge.
This case concerns the district court's1 grant of summary judgment in Appellant
Claudia Fercello's retaliation claim against Ramsey County, her former employer,
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), and the
Minnesota Human Rights Act, Minn. Stat. § 363A.15.2 Fercello challenges the district
court's ruling on a number of grounds. We affirm.
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
2
These claims are governed by the same standards. Hervey v. County of
Koochiching, 527 F.3d 711, 719 (8th Cir. 2008).
I. Background
The facts of this case arose out of Fercello's employment with the Ramsey
County Community Corrections Department ("the Department"). Since April 2003,
the Department has been under the direction of Carol Roberts. Within the Department
there are a number of divisions, each of which is headed by a deputy director. One
of those divisions is the Administrative Services Division ("the Division"). In
December 2004, Roberts hired Lee Palmer as the deputy director of the Division.
In March 2005, Palmer hired Fercello to fill the position of "Planning and
Evaluation Analyst," a probationary position that could become permanent after one
year. Upon hiring her, Palmer put Fercello's name and phone number on the manager
phone list and appointed her to serve on the Division Management Team with Sally
Ruvelson, Gale Burke, and Connie Nowacki, other Division employees. Palmer, as
well as other supervisors, referred to Fercello as "Manager of Grants and Contracts."
On Saturday, April 30, 2005, Fercello reported to Roberts that Palmer had
sexually harassed her prior to and during her employment with the Division. She
informed Roberts that she had told five other people about the harassment prior to
reporting it to her. Roberts testified that she was upset to learn that Fercello had
waited so long to report the harassment and had disclosed it to others rather than
immediately reporting it to her. The following Monday, Roberts began taking the
steps necessary to begin an investigation of Palmer's actions. Roberts also met with
Palmer and informed him that he was prohibited from making decisions in the
Division, holding staff meetings, and having any contact with Fercello. Roberts
informed Fercello that she was not required to have any contact with Palmer.
An investigation of Palmer's alleged harassment began on May 3, 2005.
During the course of the investigation, Roberts permitted Palmer to continue working
at the Division. However, Roberts made an effort to accommodate Fercello's concerns
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with regard to Palmer. Despite this, Fercello continued to express to Roberts her
anxiety over coming into contact with Palmer. Roberts responded by reassuring
Fercello that she had restricted Palmer as much as possible, only allowing him to work
certain hours and use certain exits. She also offered to put Fercello in contact with
Human Resources ("HR") to discuss her concerns further, an offer on which Fercello
did not follow through.
The Department's investigation concluded on June 16, 2005. Around the same
time, Roberts limited the people attending the Management Team meetings to senior
management employees. Thus, Fercello, Ruvelson, Burke, and Nowacki, who were
not senior managers, all stopped receiving invitations to the meetings. Fercello
testified that she did not attribute this to her harassment report.
On July 5, 2005, Roberts informed Fercello that Palmer would be terminated,
but that she was allowing him to stay with the Division for six months while he found
another job. Roberts stated that it was a compassionate decision; she did not want to
ruin Palmer financially. The following day, Fercello emailed Roberts, stating that she
was "stunned" by this decision. In response to Fercello's concerns, Roberts told
Fercello that she could arrange to find Fercello a different office. After Fercello told
Roberts that this solution was unacceptable, Roberts met with Fercello to tell her that
she had misspoke and "really meant that we would move Lee Palmer's office or Lee
out of the office." Fercello recalls Roberts being frustrated and angry during this
meeting. At the end of the meeting, however, Roberts told Fercello that Fercello had
correctly handled the matter after bringing it to Roberts's attention and that the report
would not impact her future with the Division. Shortly after this meeting, Palmer
tendered a letter of resignation. He left the Division on August 30, 2005.
In early August, prior to Palmer's departure, Roberts replaced Palmer with
Ruvelson, making Ruvelson Fercello's direct supervisor. Fercello argues that after
Palmer left the Division, she experienced a hostile attitude from Roberts and
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Ruvelson. She claims that during staff meetings, Roberts and Ruvelson would ignore
her ideas, interrupt her, and roll their eyes at her. Other employees noticed this
behavior as well.
While employed at the Division, Fercello volunteered with the County's
specialty courts. During the course of that work, a deputy director expressed concern
to Roberts that Fercello was taking positions contrary to the Department during
specialty court meetings. In a meeting to address this concern, Roberts told Fercello,
"if you intend to stay here, you will have to be part of the team . . . and I hope you do."
After contacting a supervising judge regarding Fercello's alleged conduct, Roberts
learned that Fercello had not acted inappropriately and allowed Fercello to continue
her volunteer work without further interruption.
During the course of Fercello's employment with the Division, there were a
number of changes with regard to her parking situation. While reporting to Palmer,
Fercello did not have a designated parking spot. Roberts testified that deputy
directors, assistant directors, and directors have designated parking spots, but
everyone else "works it out" based on seniority. Despite this, when Ruvelson became
Fercello's supervisor, she secured a parking spot for Fercello near the Adult Detention
Center ("ADC"), along with a number of other employees. After Fercello complained
that this parking spot was too secluded and that she might encounter Palmer, Roberts
promised to secure a better parking spot "to enhance [Fercello's] safety and sense of
wellbeing." Fercello used this new parking spot until the end of 2005, at which point
she resumed parking behind the ADC because there had not been an incident with
Palmer. At no point did the County take away this designated parking spot.
Fercello also claims that Ruvelson asked her to log her time differently and
more thoroughly than other employees. In late August 2005, Ruvelson sent an email
to Nowacki, Burke, and Fercello asking them to maintain time sheets so that Ruvelson
could become more familiar with their work schedules and gain a better understanding
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of how they spent their time. Michael Guevara and Julie Jordan, non-manager
"trainers," were not asked to track their time. Burke described the time-tracking
requirement as "quite rigid," "like almost every hour of our day keeping this daily
log."
In Fall 2005, Ruvelson established an "Action Team" and invited Fercello to
be part of it. After several meetings, Ruvelson stopped inviting Fercello. Fercello's
name was also removed from the manager email list around this time. Ruvelson stated
that she did this because Fercello viewed the Action Team as a burden to her already
busy schedule. This position is supported by an email in which Fercello complained
about being over-burdened with work, citing the Action Team as one of those burdens.
In October 2005, at the midpoint of Fercello's probationary period, Ruvelson
conducted an unofficial review of Fercello. Prior to the review, Ruvelson was
concerned about Fercello's workload and had received negative reports concerning
Fercello's performance from a number of coworkers and supervisors. As part of the
review, Ruvelson solicited "any comments or observations" from employees who had
worked with Fercello. Although the review included some positive feedback, it also
included a number of negative reports. Based on this information, Ruvelson provided
Fercello with an informal performance review, which was not placed in Fercello's file.
The review gave Fercello an overall rating of "needs improvement." Despite this low
rating, Ruvelson stated that she hoped Fercello would "take this opportunity to plan
how to improve [her] performance in order to maximize the likelihood that [she]
would be retained as an employee after [her] probationary period end[ed]." Fercello
disputed and continues to dispute the grounds for the criticism in the review.
In December 2005, Ruvelson informed Fercello that she had to change offices
to make room for an incoming deputy director from another department. When
Fercello first joined the Division, she was placed in the only vacant office, which
happened to be a windowed office. Of the five people who had windowed offices,
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Fercello was the lowest in seniority. Fercello's new office was smaller than her
original office and did not have a window.
As Fercello's probationary year came to an end, Roberts decided she would not
offer Fercello a permanent position. On Friday, March 10, 2006, nearly eleven
months after Fercello's harassment report, Roberts notified Fercello of her decision.
The following Monday, however, Roberts revoked Fercello's termination by letter.
Roberts testified that she made this change because: (1) she did not feel comfortable
terminating Fercello in light of the investigation; and (2) Fercello went through a
number of supervisor changes. After deciding to retain Fercello, Roberts appointed
Burke as Fercello's supervisor in order to give Fercello a fresh start. Prior to this
change, Ruvelson gave Fercello a year-end formal review, rating her "proficient"; one
level higher than her informal midterm review.
Burke testified that while she supervised Fercello, Fercello was difficult and
frustrating to work with and frequently made mistakes. In September 2006, Burke and
Fercello got into an argument over a report they were working on together. Burke
prepared a written reprimand, and Ruvelson recommended a verbal reprimand, but
Burke delivered neither to Fercello. Burke and Ruvelson also drafted another
performance review for Fercello, which noted concerns regarding her work product
and workplace demeanor. They never completed this review nor did they deliver it
to Fercello.
In November 2006, Fercello resigned her position at the Division, citing work-
related stress and a pattern of negative treatment. She then brought a claim under Title
VII and the Minnesota Human Rights Act alleging that the County had retaliated
against her for reporting Palmer's sexual harassment. The district court granted
summary judgment in favor of the County, finding that Fercello was unable to
establish a prima facie case and, alternatively, was unable to meet her burden of
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showing that the County's proffered reasons for its actions were a pretext for unlawful
retaliation. Fercello appeals, and we affirm.
II. Standard of Review
We review a district court's grant of summary judgment de novo. Wallace v.
DTG Operations, Inc., 442 F.3d 1112, 1117 (8th Cir. 2006). In so doing, we take the
facts in the light most favorable to the nonmoving party and grant that party all
reasonable inferences. Id. at 1118. While employment discrimination cases are often
fact intensive and dependent on nuance in the workplace, they are not immune from
summary judgment, and there is no separate summary judgment standard for
employment discrimination cases. Id. at 1117–18; see also Berg v. Norand Corp., 169
F.3d 1140, 1144 (8th Cir. 1999) ("[T]here is no 'discrimination case exception' to the
application of Fed. R. Civ. P. 56, and it remains a useful pretrial tool to determine
whether or not any case, including one alleging discrimination, merits a trial.").
Where there is no dispute of material fact and reasonable fact finders could not find
in favor of the nonmoving party, summary judgment is appropriate. Wallace, 442
F.3d at 1118.
III. Discussion
"Title VII's antiretaliation provision forbids employer actions that 'discriminate
against' an employee (or job applicant) because he has 'opposed' a practice that Title
VII forbids or has 'made a charge, testified, assisted, or participated in' a Title VII
'investigation, proceeding, or hearing.'" Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 59 (2006) (quoting 42 U.S.C. § 2000e-3(a)). Fercello's retaliation claim
is properly analyzed under the McDonnell Douglas3 framework. Wallace, 442 F.3d
at 1119. When analyzing her claim, we keep in mind that the McDonnell Douglas
3
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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framework is just that, a framework. The ultimate question of proof—the burden of
which remains on the employee throughout the inquiry—is whether the employer's
conduct was motivated by retaliatory intent. Wallace, 442 F.3d at 1119.
Under the McDonnell Douglas framework, an employee has the initial burden
of establishing a prima facie case of retaliation. Kasper v. Federated Mut. Ins. Co.,
425 F.3d 496, 502 (8th Cir. 2005). To establish a prima facie case, an employee must
show: (1) she engaged in protected conduct; (2) she suffered materially adverse
employment action, action that would deter a reasonable employee from making a
charge of employment discrimination or harassment; and (3) the materially adverse
action was causally linked to the protected conduct. Weger v. City of Ladue, 500 F.3d
710, 726 (8th Cir. 2007).
If an employee establishes a prima facie case, the burden shifts to the employer
to articulate a legitimate, non-retaliatory reason for its action. Macias Soto v. Core-
Mark Int'l, Inc., 521 F.3d 837, 841 (8th Cir. 2008). The burden then shifts back to the
employee to put forth evidence of pretext, the ultimate question being whether a
"prohibited reason, rather than the proffered reason, actually motivated the employer's
action." Wallace, 442 F.3d at 1120.
With this framework in mind, we consider the County's allegedly retaliatory
actions put forth by Fercello on appeal. There is no question that, with respect to her
prima facie case, Fercello engaged in protected conduct by reporting Palmer's sexual
harassment. See Cheshewalla v. Rand & Son Constr. Co., 415 F.3d 847, 851 (8th Cir.
2005). Our analysis therefore focuses on the second and third requirements of
Fercello's prima facie case and whether the County's proffered reasons for its actions
are pretextual. While the propriety of summary judgment ultimately rests on the
cumulative force of the facts, see Phillips v. Collings, 256 F.3d 843, 849 (8th Cir.
2001), it is proper to consider the allegations individually and then evaluate the
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cumulative weight of those allegations, see Devin v. Schwan's Home Serv., Inc., 491
F.3d 778, 785 (8th Cir. 2007).
A. Fercello's Individual Allegations
1. Functional Demotion
Fercello first argues that the County reduced her role as "Manager of Grants and
Contracts" to a non-managerial position with less privilege and prestige. In support
of this argument, she relies on: (1) a change in her parking space location; (2) office
relocation to an office without a window; and (3) exclusion from participation in
Management Team and Action Team meetings and removal from the management
email list. Fercello's claims rest heavily on her argument that there is a question of
material fact as to whether she was a manager. We agree that the record demonstrates
some confusion as to whether she was a manager and what it means to be a manager
as that term is used in the Division. But even accepting that there is a factual dispute
as to this matter, the dispute is not material because Fercello's argument fails on other
grounds.
The first two parts of Fercello's argument as to functional demotion fail because
the actions taken by the County in those instances are not materially adverse
employment actions. First, with respect to the parking space, the record shows that
Fercello did not have a parking space prior to reporting Palmer's harassment. Only
after the report did Ruvelson secure Fercello a parking spot behind the ADC. When
Fercello expressed fear of encountering Palmer, Ruvelson secured a spot for her closer
to the office. When Fercello no longer feared confrontation with Palmer, she resumed
parking behind the ADC. At no point in this sequence of events was Fercello
adversely affected. On the contrary, the record shows that Ruvelson did what she
reasonably could do to accommodate Fercello's safety concerns. Fercello's parking
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space, whether behind the ADC or closer, was a benefit beyond what she received
prior to reporting Palmer's harassment. In this situation, the movement of that space
does not constitute materially adverse employment action.
Second, Fercello's office relocation, particularly in light of her seniority, is not
materially adverse employment action because it is the kind of annoyance or petty
slight that we have held does not constitute actionable harm. See Gilbert v. Des
Moines Area Cmty. Coll., 495 F.3d 906, 918 (8th Cir. 2007) ("[Plaintiff's] new work
space may not have been as desirable as his previous quarters . . . but Title VII does
not protect employees 'from those petty slights or minor annoyances that often take
place at work and that all employees experience.'") (quoting White, 548 U.S. at 68);
see also Guimaraes v. NORS, No. 09-12569, 2010 WL 529296, at *4 (11th Cir. Feb.
16, 2010) (unpublished per curiam) ("[M]ovement of [plaintiff] to a cubical farther
away from other employees was not adverse employment action."). Fercello has
offered no evidence that the relocation of her office rendered her unable to complete
her duties or that it otherwise interfered with her employment to an extent that would
deter a reasonable person from making a harassment claim. Her office relocation was
not materially adverse employment action.
Unlike Fercello's first two claims, exclusion from workplace meetings and
management email lists could be materially adverse employment action, particularly
when those meetings or emails could contribute to an employee's professional
advancement. See White, 548 U.S. at 69. But even assuming that exclusion from
these meetings and emails constituted materially adverse employment action, and
assuming that Fercello has otherwise satisfied her prima facie burden, the County has
offered non-discriminatory reasons for the exclusion. With respect to the
Management Team, the record illustrates that the Division sought to limit those
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meetings to senior management. Along with Fercello, Ruvelson, Burke,4 and
Nowacki all stopped receiving invitations. These employees were at or above
Fercello's level in the Division hierarchy. As for the Action Team meetings and
management emails, the record shows that Ruvelson stopped including Fercello in
meetings and email correspondence because Fercello had complained about being
overburdened and viewed the Action Team as contributing to that burden. Fercello
has not pointed to any evidence that an illegal reason, rather than these proffered
reasons, motivated her exclusion from the meetings and management emails. See
Dixon v. Pulaski County Special Sch. Dist., 578 F.3d 862, 868–69 (8th Cir. 2009)
(employee must provide evidence that the proffered explanation was a pretext for
unlawful discrimination). For this and the above-discussed reasons, these claims are
not evidence of retaliation.
2. Negative Performance Reviews and "Papering" of Fercello's File
Fercello next argues that the district court erred in finding that her negative
performance reviews did not constitute retaliation. There are two reviews at issue: (1)
the December 2005 informal review; and (2) the September 2006 proposed
performance review.5 These reviews do not support Fercello's prima facie case.
Fercello relies primarily on the contents of her informal review. Even if we
assume that this review constituted materially adverse employment action, a
reasonable jury could not find that it was causally related to Fercello's harassment
4
Although Burke testified that she was removed from the Management Team,
Fercello testified that it was her recollection that Burke continued to attend the
meetings. Assuming that this was the case, the fact remains that at least two other
people—Ruvelson and Nowacki—were no longer invited to the meetings.
5
Fercello also received a formal year-end review in June 2006. She does not
seriously contend that this review constituted retaliation. Even if she did, for the
reasons discussed in this section, we disagree.
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report. Fercello reported the harassment to Roberts on April 30, 2005. The informal
review began around October 20, 2005 when Ruvelson requested comments on
Fercello's performance from other employees. This leaves a gap of nearly six months
between Fercello's protected activity and the alleged adverse employment action. This
passage of time has two consequences: it weakens the inference of causation, see Sims
v. Sauer-Sundstrand Co., 130 F.3d 341, 343 (8th Cir. 1997), and it eliminates
Fercello's ability to prove causation based on temporal proximity alone, see Recio v.
Creighton Univ., 521 F.3d 934, 941 (8th Cir. 2008) (six months not close enough to
raise inference of causation); Smith v. Allen Health Sys., Inc., 302 F.3d 827, 833 (8th
Cir. 2002) (a two-week interval is sufficient to create an inference of causation based
on temporal proximity, "but barely so"). Fercello must therefore look to other
indicators of causation, and do so in light of a significant time gap.
Fercello first seeks to show causation by arguing that Ruvelson targeted her by
seeking out negative reports when compiling her informal review. The record does
not support this. Rather, Ruvelson's email requested "any comments or observations."
Nothing but speculation could lead a jury to conclude that this request sought criticism
to the exclusion of positive feedback.
Fercello also argues that the informal review was one-sided and over-
emphasized negative reports. Again, there is no evidentiary support for this argument.
The review noted areas in which Fercello was "creative and enthusiastic," "extremely
efficient and helpful," and "very articulate speaking in groups," as well areas in which
she fell short. To the extent that the informal review contained negative comments,
the record shows that there was ample support for those comments. Testimony from
Fercello's coworkers and supervisors, almost all of whom were not shown to have
knowledge of the harassment report, reveals an extensive history of performance
issues and personality conflicts. This testimony renders Fercello unable to create a
question of material fact as to causation based on negative reviews. See Littleton v.
Pilot Travel Ctrs., LLC, 568 F.3d 641, 645 (8th Cir. 2009) (absence of knowledge of
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prior protected activity eliminates causation); Jackson v. St. Joseph State Hosp., 840
F.2d 1387, 1391 (8th Cir. 1988) (Title VII does not insulate an employee from the
consequences of inadequate work performance).
Despite the fact that there was support for much of the review's criticism,
Fercello offers a detailed analysis of the review in an effort to show that some of the
criticism was without merit. But even if she is correct, this does not entitle her to a
trial on the issue. Absent some evidence of retaliatory motive, we will not second-
guess an employer's judgment of an employee's performance. See Gilbert, 495 F.3d
at 916 ("[T]he employment-discrimination laws have not vested in the federal courts
the authority to sit as super-personnel departments reviewing the wisdom and fairness
of the business judgments made by employers, except to the extent that those
judgments involve intentional discrimination.") (quotation omitted). Given the
absence of facts demonstrating a retaliatory motive, particularly in light of the detailed
history of questionable performance and the absence of temporal proximity, a
reasonable jury could not find that the "unfair" or "unsupported" criticisms that
Fercello received were the result of unlawful retaliation.
With respect to the proposed performance review, the record shows that it was
not completed nor was it delivered to Fercello. These facts strongly militate against
a finding that it was materially adverse. See Baloch v. Kempthorne, 550 F.3d 1191,
1199 (D.C. Cir. 2008) (proposed suspension not materially adverse where suspension
was not actually served). Further, Fercello has not otherwise identified negative
consequences stemming from this proposed review. Without this, the proposed
performance review is not evidence of retaliation. See Weger, 500 F.3d at 727.
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3. Repeated Oral Warnings and Poor Treatment
Fercello next argues that she suffered retaliation in the form of repeated oral
warnings and poor treatment by Roberts and Ruvelson. Neither of these claims
support a finding of retaliation. As to the alleged oral warnings, there is no evidence
that they took place. The only "warning" to which Fercello points is Roberts's
statement to Fercello regarding Fercello's work with the specialty courts. After
hearing that Fercello had taken positions contrary to the Department, Roberts told
Fercello, "if you intend to stay here, you will have to be part of the team . . . and I
hope you do."6 Fercello argues that she understood this statement to be a threat to
terminate her employment. Her subjective view is not determinative. Higgins v.
Gonzales, 481 F.3d 578, 591 (8th Cir. 2007) ("The standard under Burlington
Northern is objective . . . ."). Objectively viewed, Roberts's statement is not a warning
or a threat. Roberts identified an issue, investigated it, and ultimately permitted
Fercello's volunteer work to continue. Further, there is no evidence that the comment
was in any way related to Fercello's harassment report. The only evidence to which
the parties point shows that Roberts made the comment in response to concerns by a
deputy director about Fercello's conduct at specialty court meetings. There is no
evidence to suggest the requisite causal relationship.
Fercello also claims that Roberts and Ruvelson made her feel unwelcome at
meetings by rolling their eyes at her, interrupting her, and ignoring her contributions.
Although her coworkers confirmed these allegations, these actions do not constitute
6
Although Fercello does not seriously argue the issue, she notes that Roberts
requested that she be removed from her position as a specialty court evaluator. The
record is clear, however, that Roberts never followed through with this request. Once
Roberts determined that Fercello had not acted inappropriately, she permitted her to
continue her volunteer work without interruption. Thus, Fercello suffered no adverse
employment action. See Weger, 500 F.3d at 727 (employee must allege adverse
employment action had "negative impact"). Further, there is no indication that
Roberts's initial request was in any way related to Fercello's harassment report.
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actionable retaliation in this case. See White, 548 U.S. at 68 ("Title VII . . . does not
set forth 'a general civility code for the American workplace.'") (citation omitted);
Higgins, 481 F.3d at 591 ("[Plaintiff] cannot make her claim based on personality
conflicts, bad manners, or petty slights and snubs."). Fercello's arguments on this
point are particularly weak in light of a record that reveals personality conflicts
between Fercello and her coworkers and supervisors.
4. Surveillance
Fercello next claims that she suffered retaliation because Ruvelson placed her
under "constant surveillance." Although placing an employee under constant
surveillance could be evidence of retaliation, see Kim v. Nash Finch Co., 123 F.3d
1046, 1061 (8th Cir. 1997), Fercello has not put forth evidence that the time-tracking
procedures were implemented in any part because of her harassment report. To begin
with, Ruvelson requested that Fercello track her time nearly four months after
Fercello's harassment report, significantly weakening any causal relationship. See
Sims, 130 F.3d at 343. Further, the record shows that Burke and
Nowacki—employees who Fercello concedes were at her level—were also required
to track their time. Cf. Hicks v. Baines, 593 F.3d 159, 170 (2d Cir. 2010) (employee
can prove causation "by showing disparate treatment of fellow employees who
engaged in similar conduct"); Robertson v. Fed. Express Corp., No. Civ. 02-4161,
2004 WL 1278929, at *3 (D. Minn. June 5, 2004) (unpublished) ("The most common
way for a plaintiff to establish causation is evidence that similarly situated white
employees were treated differently."). In fact, Burke testified that the policy was
"quite rigid" and that it was "like almost every hour of our day keeping this daily log."
Fercello seeks to create a question of fact as to causation by arguing that Ruvelson did
not require other employees to track their time. This argument fails because the
record reveals that the other employees Fercello identifies had different positions than
Fercello, Burke, and Nowacki; they were not similarly situated. See Putnam v. Unity
Health Sys., 348 F.3d 732, 736 (8th Cir. 2003) (claims of differential treatment require
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evidence that similarly situated employees were treated more favorably). Fercello has
thus failed to offer sufficient evidence that Ruvelson imposed the time-tracking
requirements upon her because of her harassment report.
5. Discharge at the Close of Probationary Period
Fercello's next claim is that she suffered retaliation by being discharged at the
end of her probationary period, even though she was reinstated the next business day.
The issue of whether this reinstatement "cures" the discharge so as to render it not
materially adverse is not an easy one. Although it is difficult to articulate the concrete
impact on Fercello's employment, it is also difficult to say as a matter of law that such
a "shot across the bow," as she refers to it, would not dissuade a reasonable employee
from reporting sexual harassment. See Littleton, 568 F.3d at 644 (exploring a similar
situation and noting the difficulty of the question). We need not address this issue,
however, as the record does not show a causal link between Fercello's discharge and
her protected conduct, and Fercello has failed to show that the County's proffered
reason for its action was a pretext for unlawful retaliation.
As has been the case with many of Fercello's claims, her initial discharge took
place well after her harassment claim, and Fercello does not otherwise show evidence
of causation. Further, even assuming that Fercello satisfied her prima facie burden,
she has not shown that the County's proffered explanation for initially discharging her
was a pretext for unlawful discrimination. Roberts testified that Fercello did not pass
her probationary period because Fercello was argumentative and difficult to work
with. The testimony of Fercello's coworkers reflects as much. The only evidence that
Fercello puts forth to dispute this is evidence that she completed a greater volume of
work than her predecessor and testimony from some of her coworkers who believed
that she worked long hours. But this does not rebut Ruvelson's stated reason for
terminating Fercello, as someone could work hard and still be difficult to work with.
And even if Roberts's overall assessment of Fercello was incorrect, this does not
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entitle Fercello to a judgment on the pretext issue, particularly because there is no
evidence that Roberts's assessment of Fercello was not honest. See Dixon, 578 F.3d
at 869 ("[T]he essential question is not whether [the plaintiff] was actually unqualified
for the position; it is whether the School District honestly believed that she was
unqualified.") (emphasis added). "'[P]retext' . . . often must be read as shorthand for
indicating that a defendant's proffered discriminatory explanation for adverse
employment action is a pretext for unlawful discrimination, not that it is merely false
in some way." Strate v. Midwest Bankcentre, Inc., 398 F.3d 1011, 1017 (8th Cir.
2005). Fercello has not put forth evidence that this was the case and therefore cannot
show pretext.
6. Constructive Discharge
Fercello's final claim is that the County retaliated against her by way of
constructive discharge. "Constructive discharge, like any other discharge, is an
adverse employment action that will support an action for unlawful retaliation." West
v. Marion Merrell Dow, Inc., 54 F.3d 493, 497 (8th Cir. 1995). The bar to relief,
however, is high. O'Brien v. Dep't of Ag., 532 F.3d 805, 810–11 (8th Cir. 2008). "To
prove a case of constructive discharge, a plaintiff must show (1) a reasonable person
in [her] situation would find the working conditions intolerable, and (2) the employer
intended to force [her] to quit." Carpenter v. Con-Way Cent. Express, Inc., 481 F.3d
611, 616 (8th Cir. 2007). An employee can meet this second prong through direct
evidence or through evidence that "the employer . . . could have reasonably foreseen
that the employee would [quit] as a result of its actions." Wright v. Rolette County,
417 F.3d 879, 886 (8th Cir. 2005) (quotation omitted). Fercello has failed to meet this
burden.
In support of her claim, Fercello relies on the aggregate effect of the alleged
adverse actions she claims to have suffered. Even if we were to find that Fercello
established that the conditions were sufficiently intolerable, there is no evidence that
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the County intended to force Fercello to quit or that it could have reasonably foreseen
that she would do so. The record indicates that the County provided Fercello with a
parking space typically not given to employees of her seniority, gave her time off
when she requested it, suggested that she speak with HR and the County's FMLA
specialist about her problems, provided her with an alternative work schedule to
accommodate an illness, and sought to understand the problems that she had with her
work load. These accommodations show an intent to maintain an employment
relationship with Fercello, not force her to quit. See Devin, 491 F.3d at 790
(employer's willingness to discuss options with employee "undercuts any claim of
constructive discharge"); EEOC v. City of Independence, Mo., 471 F.3d 891, 896 (8th
Cir. 2006) (same). Further, after Roberts initially discharged Fercello following her
probationary period, she rehired her because she thought that Fercello may have had
a hard time dealing with the harassment investigation and the numerous supervisor
changes. This too is inconsistent with the requisite intent. Cf. Anda v. Wickes
Furniture Co., Inc., 517 F.3d 526, 534 (8th Cir. 2008) (employer seeking to persuade
employee not to quit supports finding that employer did not intend to force employee
to quit). Rather than intentionally rendering Fercello's work conditions intolerable,
the record shows that the County sought to accommodate Fercello at nearly every
turn. Fercello has failed to point to any evidence in the record showing that the
County intended to force her to quit or reasonably could have foreseen that she would
have quit as a result of its actions. Accordingly, she cannot use constructive discharge
to show retaliation.
B. Fercello's Claims in the Aggregate
Fercello also argues that, when taken collectively, the above-discussed actions
constitute retaliation. We cannot agree. Although it is proper to consider the
cumulative effect of an employer's alleged retaliatory conduct, see Devin, 491 F.3d
at 787–88, the evidence in Fercello's case falls short. The record shows that on April
30, 2005, Fercello engaged in protected conduct by reporting Palmer's sexual
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harassment. Over the next nineteen months, ending in Fercello's eventual resignation
in November 2006, a number of allegedly adverse actions took place. We agree with
Fercello that context matters in retaliation cases, see White, 548 U.S. at 68, but the
context in this case illustrates a scattered assortment of actions that are either petty,
unsubstantiated, or otherwise causally unrelated to Fercello's protected conduct. The
record also reveals numerous efforts by the County to remedy conflicts and
accommodate Fercello's needs. Taken as a whole, the actions of the County in this
case do not constitute systematic retaliation capable of transforming otherwise lawful
conduct into unlawful, retaliatory employment action.
IV. Conclusion
We affirm the judgment of the district court.
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