Smith v. Fairview Ridges Hospital

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 08-1924
___________

Shelia Denise Smith, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Fairview Ridges Hospital, *
*
Appellee. *
___________

Submitted: May 11, 2010
Filed: October 27, 2010
___________

Before BYE, MELLOY, and SHEPHERD, Circuit Judges.
___________

SHEPHERD, Circuit Judge.

Shelia Smith appeals the district court’s1 adverse grant of summary judgment
on her discrimination claims against her former employer, Fairview Ridges Hospital
(“Fairview”). Smith contends that Fairview constructively discharged her after
subjecting her to a hostile work environment and retaliation, in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. We affirm.

1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
 I.

Construing the record in the light most favorable to Smith, see Johnson v.
AT&T Corp., 422 F.3d 756, 760 (8th Cir. 2005), in March 2005, Smith was one of
two African-American women employed as transportation aides for the Fairview
emergency room (“ER”) in Burnsville, Minnesota. Smith’s primary responsibility
was to transport patients from the ER to various other locations in the hospital. Her
duties also included taking patients’ vital signs, cleaning, and several other tasks
delegated to her by the ER charge nurse, health unit coordinators, doctors, and
technicians.

During the summer of 2005, Patricia Pousard, Smith’s immediate supervisor,
approached Smith to discuss several concerns Pousard had with Smith’s conduct at
work, including that Smith: (1) often failed to answer her telephone, (2) took lunch
breaks at inappropriate times, (3) was rude to people on the telephone, (4) made too
many personal calls, and (5) took frequent cigarette breaks. On August 17, 2005,
Pousard prepared a Notice of Corrective Action (“NCA”)2 to address these concerns;
however, pursuant to Smith’s request, Pousard deferred officially filing the NCA.

In September 2005, Smith’s performance review reflected positive comments
regarding her performance as a transportation aide. Nonetheless, on November 15,
2005, Pousard officially filed the aforementioned NCA. The NCA was dated August
17, 2005, and addressed the issues that had been discussed with Smith during the
summer. On November 28, 2005, Smith received another NCA, reflecting additional
concerns with her performance. As a result of the NCAs, Smith was subjected to
several limitations, including the requirement that she obtain permission from the

2
A Notice of Corrective Action (“NCA”) is a form used by Fairview to
document an employee’s misconduct or poor performance. After a written or verbal
advisement is provided to the employee, it is placed in the employee’s personnel file.

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charge nurse, the lead health unit coordinator, and an ER technician, prior to taking
any breaks.

On December 16, 2005, Smith’s doctor wrote a letter to Fairview, indicating
that due to a medical condition, Smith could not push or pull more than 70 pounds or
lift more than 60 pounds for up to 3 months. As a result, Smith was unable to work
as a transportation aide and began picking up shifts as a nursing assistant. This
particular nursing assistant position did not entitle Smith to receive benefits.
Consequently, Jenny Austerman, a payroll and benefits specialist at Fairview,
suggested that Smith take a leave of absence from her position as a transportation aide,
instead of working in the nursing assistant position, because Smith could maintain her
benefits during a leave of absence. Smith did not follow this advice and continued
working as a nursing assistant until her medical restrictions were lifted in early April
2006, when Smith resumed her former transportation aide position. Prior to returning
to her job, Smith filed a Notice of a Charge of Discrimination with the Equal
Employment Opportunity Commission (EEOC), alleging race discrimination and
retaliation based on several events occurring during her time at Fairview.

In May 2006, Smith received a third NCA. This NCA reflected Smith’s
excessive use of unscheduled time off, which had increased beyond the ER’s
maximum allowance. During her time at Fairview, Smith applied for various
employment positions, such as the nursing assistant position in the operating room,
but she was not considered for any of these positions based on the number of NCAs
that were in her file.

Smith continued working as a transportation aide in the Fairview ER until June
7, 2006, when she resigned. In July 2006, the EEOC issued a letter of determination
finding that there was “reasonable cause to believe that [Fairview] subjected [Smith]
to a hostile work environment and retaliated against her in violation of Title VII.”
(Appellee’s App. 149.) On December 1, 2006, Smith filed this action pro se, alleging

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three Title VII claims: (1) hostile work environment, (2) constructive discharge, and
(3) retaliation.3 The district court appointed counsel for Smith. During the initial
pleading stages, and throughout discovery, Smith alleged various instances of racial
discrimination including:

1. Soon after she began working at Fairview, a nurse asked Smith if she was
Puerto Rican because she spoke Spanish. Smith responded, “No, I’m black, look at
me I’m black.” (Id. at 40.)

2. In April or May 2005, Smith brought fried chicken to a Fairview potluck. Smith
overheard a nurse inquire as to who had brought the chicken and then receive the
response, “Who else?” (Id. at 32.) Smith then responded, “What? Only black people
eat chicken?” (Id.) Smith reported the incident to Pousard; however, no corrective
action was taken.

3. In May 2005, a picture of “Buckwheat,” a character from the Little Rascals
motion picture series who is an African-American child with braided hair, was posted
on a door in the ER, along with other employees’ childhood photographs. The caption
above the picture read, “Guess who this is?” (Id. at 31.) Smith inferred that the
Buckwheat picture was placed on the door to represent her because she had recently
braided her hair and was the only African-American employee whose childhood
picture was not already on the bulletin board. Smith reported the incident to Pousard;
however, no corrective action was taken.

4. In the summer of 2005, a nurse, who was not Smith’s supervisor, grabbed a
patient chart from Smith’s hands and said, “[T]hese black aides don’t know what they

3
The district court interpreted Smith’s pro se complaint as asserting these three
claims, thus we do the same.

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are doing.” (Id. at 33.) Smith reported the incident to Pousard; however, no
corrective action was taken.

5. In September or October 2005, Smith brought a meal for lunch and upon
entering the break room with the food, a coworker complained about a fish odor. The
coworker was informed that Smith’s meal contained fish, to which the coworker
responded, “I smelled food that smelled better than that crap in my garbage.” Smith
then informed the coworker that it was an African dish. (Id. at 34-35.)

6. In October 2005, Smith observed two coworkers using a work computer to view
an article4 on the website, The Onion.5 The article discussed Hurricane Katrina and
contained an image of a helicopter hovering over houses that were flooded by the
hurricane. On the front porch of one of the houses, three people, appearing to be
African-American, were pictured. The caption under the picture stated, “FEMA
representatives call out to survivors, ‘Show us your tits for emergency rations!’” (Id.
at 138.) Smith reported the incident to Pousard; however, no corrective action was
taken.

7. In December 2005, Smith observed two coworkers using a work computer to
view the website, www.getoffended.com. Smith claimed that one of her coworker’s
body language and facial expressions had invited her to look at what they were
viewing. When she went to the screen, Smith observed two phrases written on t-shirts

4
In Smith’s pro se brief to this court, and in her deposition testimony, she states
that this incident involved a video. The video she described showed Coast Guard
rescuers telling black women to show them their “Big Black Boobs,” if they wanted
to be rescued. (Appellee’s Br. 3.) However, Smith’s attorney introduced a copy of
an article, not a video, in the district court. Because the record does not contain a
video, we only discuss the article.
5
The Onion is a “political satire news source, which has a partnership with
CNN.” (Appellee’s Br. 10.)

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which stated: (1) “Guns don’t kill people, only angry minorities kill people,” and (2)
“How do you stop five niggers from raping a white girl? You throw them a
basketball.” (Id. at 36.) That evening, Smith went home and viewed the website
again, printing out several pages of its contents. Smith reported the incident to Sally
Haack, Fairview’s Human Resources Representative, who reminded the coworkers
that personal internet use at work was inappropriate.

8. Once she returned to work in April 2006, Smith overheard a nurse say, “If she’s
unhappy here, why does she come back?” Another nurse responded, “Just like a dog,
you beat them and abuse them, they still come back. Just like any good runaway slave
would.” (Id. at 38.) Smith reported the incident to Pousard; however, no corrective
action was taken.

9. When Smith and an ER technician were discussing skin care, Smith suggested
to the technician that she could use a certain facial cleanser to help with acne, and the
technician replied, “People can’t see yours because you’re black.” (Id.)

10. At one point, a coworker referred to Smith as “gal.” The coworker told Smith
that she called everyone “gal.” Smith informed the coworker that the word reflected
racial animosity. (Id. at 40-41.)

11. After overhearing Smith and a hospital volunteer from Somalia discussing
ethnic foods and employment positions at Fairview, Smith’s coworker told the
volunteer that what she and Smith were discussing was inappropriate. Smith reported
the incident to Pousard; however, no corrective action was taken.

12. Teyona Brown, an African-American coworker, testified that she overheard two
white employees referring to Smith and stating, “She needs to go back to the ghetto
where she came from.” (Appellant’s Supp. App. 59.)

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 The district court granted Fairview’s motion for summary judgment as to all of
Smith’s claims. With regard to the hostile work environment claim, the court
“examin[ed] the totality of the circumstances” and held that, assuming all of Smith’s
claims were true, the alleged harassment was not sufficiently severe or perversive as
to affect a term, condition, or privilege of Smith’s employment. As to Smith’s
retaliation claim, the court held that Smith was unable to demonstrate more than
temporal proximity between her NCAs and the complaints about her coworkers’
discriminatory behavior. Finally, with regard to constructive discharge, the court
noted that Smith presented no evidence that Fairview intended to force her to resign.
Smith brings this appeal, arguing that the district court erred in granting summary
judgment in favor of Fairview on all three claims.

II.

We review the district court’s grant of summary judgment de novo. See
Elnashar v. Speedway SuperAmerica, LLC, 484 F.3d 1046, 1055 (8th Cir. 2007).
“[S]ummary judgment should be granted in employment discrimination cases only if
the evidence could not support any reasonable inference of discrimination,” and we
should affirm “if there is no genuine issue of material fact and [Fairview] is entitled
to judgment as a matter of law.” Id. However, we have previously noted that
“summary judgment should be used sparingly in the context of employment
discrimination and/or retaliation cases where direct evidence of intent is often difficult
or impossible to obtain.” Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1117 (8th
Cir. 2006); see also Torgerson v. City of Rochester, 605 F.3d 584, 593 (8th Cir. 2010)
(collecting cases stating same). Indeed, summary judgment is an improper remedy in
“very close” employment discrimination cases. Kehoe v. Anheuser-Busch, Inc., 995
F.2d 117, 120 (8th Cir. 1993). Notwithstanding this point, “no separate summary
judgment standard exists for discrimination or retaliation cases and . . . such cases are
not immune from summary judgment.” Wallace, 442 F.3d at 1118.

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 A. Hostile Work Environment

Title VII prohibits a racially hostile work environment. 42 U.S.C.
§ 2000e-2(a)(1) (prohibiting an employer from discriminating “against any individual
with respect to [her] compensation, terms, conditions, or privileges of employment,
because of such individual’s race”). A hostile work environment exists when “the
workplace is permeated with discriminatory intimidation, ridicule, and insult, that is
sufficiently severe or pervasive to alter the conditions of the victim’s employment and
create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17,
21 (1993) (quotation omitted). The hostile work environment standard contains both
a subjective and an objective component, thus, Smith is required to make a showing
of a working environment “that a reasonable person would find hostile or abusive, and
one that [she] in fact did perceive to be so.” Faragher v. City of Boca Raton, 524 U.S.
775, 787 (1998) (citing Harris, 510 U.S. at 21-22). Among other things, to establish
a prima facie case of a hostile work environment, Smith must demonstrate that “the
harassment affected a term, condition, or privilege of [her] employment.” Elnashar,
484 F.3d at 1058.

The district court stated it considered the totality of the circumstances. Smith
contends, however, that the district court improperly reviewed each incident of racial
hostility as an isolated event, instead of analyzing the cumulative effects of the
instances of alleged discrimination. In reviewing on appeal the grant of summary
judgment to Fairview on Smith’s hostile work environment claim, we apply a de novo
standard of review, and thus, we are not bound by the district court’s method of
analysis. See Elnashar, 484 F.3d at 1055 (standard of review). Further, while Smith
is correct that “[w]orkplace conduct is not measured in isolation; [and] ‘whether an
environment is sufficiently hostile or abusive’ must be judged ‘by looking at all the
circumstances,’” Bowen v. Mo. Dep’t of Social Servs., 311 F.3d 878, 884 (8th Cir.
2002) (quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001) (per
curiam)), it is also true that only incidents that “have a racial character or purpose” can

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support Smith’s claim. Singletary v. Mo. Dep’t of Corrs., 423 F.3d 886, 893 (8th Cir.
2005) (quotation omitted). The stringent hostile work environment standard is
designed to “filter out complaints attacking the ordinary tribulations of the workplace,
such as the sporadic use of abusive language . . . and occasional teasing.” Faragher,
524 U.S. at 788 (quotation omitted); see Joens v. John Morrell & Co., 354 F.3d 938,
941 (8th Cir. 2004) (noting that Title VII does not “create a federal remedy for all
offensive language and conduct in the workplace”) (quotation omitted)).

1.

Several of the allegations made by Smith—the comments regarding Smith’s
lunch, acne, and ability to speak Spanish; the coworker’s comment about Smith’s
conversation with the Somali volunteer; and the image on The Onion—at most only
tenuously relate to race. In fact, Smith “offers little more than speculation and
conjecture” that these incidents “had anything to do with race.” Anderson v. Durham
D&M, LLC, 606 F.3d 513, 519 (8th Cir. 2010) (quotation omitted). Because no
“reasonable person would find [these events] hostile or abusive,” Faragher, 524 U.S.
at 787, we hold that those allegations do not corroborate Smith’s claim that she
suffered from a hostile work environment even as they are considered in the totality
of the circumstances of Smith’s work environment.

To support its conclusion that the district court erred in granting summary
judgment, the dissent primarily relies on Bowen, a case it characterizes as analogous
to this one. The dissent states that in Bowen, we “reviewed other allegations which
were not overtly racial” and included those allegations when deciding that “there was
enough evidence for a jury to consider whether the accumulation of the conduct was
severe enough to alter a term of the plaintiff’s employment.” This analogy of our
holding in Bowen to this case, however, is misleading, and further review of the facts
of the Bowen case will demonstrate why.

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 In that case, the plaintiff, Wanda Bowen, was hired as a case manager for the
Missouri Department of Social Services. Bowen, 311 F.3d at 880. Her immediate
supervisor was Francine Lee. From the beginning of Bowen’s employment, Bowen
and Lee had an acrimonious relationship. As Bowen was leaving work after one
especially hostile work day, she said “Good night, Francine,” and Lee responded,
“You kiss my ass, you white bitch!” Id. at 881. Following that incident, Bowen was
assigned to another supervisor, but continued to work in close proximity to Lee.
Thereafter, Bowen endured “hostile stares” from Lee “[o]n a near daily basis.” Id.
When Lee learned that Bowen had brought a cake to work to share with others, Lee
threw the cake on the floor, stepped on it, and said to a nearby coworker, “You can
damn well tell her that I did it.” Id. When Bowen’s new supervisor complained to
Lee about Bowen, Lee referred to Bowen as a “menopausal white bitch” then Lee
immediately threatened Bowen with physical harm and ran towards Bowen, chasing
her back to her cubicle. Id. at 881-82.

The dissent argues that these “other allegations”—Lee’s hostile stares at
Bowen, Lee’s destruction of Bowen’s cake, Lee’s threat of physical harm, and Lee’s
running at Bowen—lacked an “overtly racial” character but were considered in the
determination of “whether the accumulation of the conduct was severe enough to alter
a term or the plaintiff’s employment.”

It is not the role of the courts to consider incidents in isolation, rather we are to
consider “all of the circumstances” of the workplace environment. Nor, however, are
we to develop a nexus among isolated incidents where no such nexus exists. See
Bradley v. Widnall, 232 F.3d 626, 632 (8th Cir. 2000) (affirming district court’s grant
of summary judgment on hostile work environment claim where plaintiff “was unable
to provide any evidence of a nexus between the alleged harassment and her protected
status”). This is what distinguishes Bowen from this case. In Bowen, the “other
allegations” had a nexus to overt racism as all of the “other allegations” were actions
by the same coworker who had called the plaintiff a “white bitch.” Further, two of the

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“other allegations”—the physical threat and the running towards the
plaintiff—happened within seconds of the coworker referring to the plaintiff as a
“menopausal white bitch.”

The dissent also cites Diaz v. Swift-Eckrich, Inc., 318 F.3d 796 (8th Cir. 2003),
and Hathaway v. Runyon, 132 F.3d 1214 (8th Cir. 1997), as cases where the court
considered incidents that did not demonstrate an overt racial animus in determining
if a plaintiff was subjected to a hostile work environment. These cases, like Bowen,
are readily distinguishable. In Diaz, we held the various instances of “rude noises,
laughter, and statements that [plaintiff] was stupid” to be “part of a course of conduct
which [was] tied to evidence of discriminatory animus” because the offensive actions,
which included two physical assaults, came from coworkers who had made “early
comments . . . demean[ing] Hispanics and specifically referr[ing] to both Hispanics
and [the plaintiff] as ‘stupid.’” 318 F.3d at 800 (quotation omitted). In Hathaway, the
plaintiff experienced “snickers and noises”—which were described as a “purring or
growling noise made in the throat”—“for a period of eight months.” 132 F.3d at
1217, 1222. These offensive sounds came from a coworker and the coworker’s friend
after the coworker had made physical sexual advances toward the plaintiff such as
“hit[ting] [the plaintiff] on the buttocks with a clipboard” and “approach[ing] [the
plaintiff] from behind and squeez[ing] her buttocks while she was waiting for an
elevator.” Id. at 1217.

In this case, several incidents that Smith argues support her claims of a racially
hostile work environment—the comments regarding Smith’s lunch, acne, ability to
speak Spanish; the coworker’s comment about Smith’s conversation with the Somali
volunteer; and the image on The Onion—have no obvious or overt racial animus.
Further, unlike in Bowen, Diaz, and Hathaway, the incidents have no connection to
or nexus with an obvious or overt racial incident as they lack any congruency of
person or incident. These various allegations are “isolated incidents” that the Supreme
Court has held “will not amount to discriminatory changes in the terms and conditions

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of employment.” Faragher, 524 U.S. at 788 (quotation omitted). For that reason,
although considered as part of the “the totality of the circumstances,” these incidents
do not give rise to a change in Smith’s terms or conditions of her employment.

2.

The picture of Buckwheat, the comment about fried chicken, and the reference
to the ghetto, although not all shown or recited directly to Smith, carry some
inferences that they were racially motivated, especially considering the context of the
events. See, e.g., Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir.
2007) (stating that references to “ghetto children” were “perhaps racially
inappropriate”); Simmons v. Océ-USA, Inc., 174 F.3d 913, 915 (8th Cir. 1999) (“The
term ‘Buckwheat’ is a racial slur when it is directed towards a black employee in the
context of an employment relationship.”). Furthermore, the evidence clearly indicates
that Smith experienced unwelcome racial harassment when exposed to several
comments that were explicitly racial in nature. Specifically, the material on the
website getoffended.com, the comment regarding “black aides,” and the references
about runaway slaves unambiguously permit an inference of racial animus. See,e.g.,
Canady v. Wal-Mart Stores, Inc., 440 F.3d 1031, 1035 (8th Cir. 2006) (noting that “in
certain contexts, the term ‘slave driver’ could be considered evidence of racial
animus”); Galdamez v. Potter, 415 F.3d 1015, 1024 n.6 (9th Cir. 2005) (noting that
“there are no ‘talismanic expressions’ of racial animus necessary to sustain a
harassment claim,” and noting that “racially charged ‘code words’ may provide
evidence of discriminatory intent by ‘send[ing] a clear message and carry[ing] the
distinct tone of racial motivations and implications.’” (quoting McGinest v. GTE Serv.
Corp., 360 F.3d 1103, 1117 (9th Cir. 2004))); Gipson v. KAS Snacktime Co., 171
F.3d 574, 579 (8th Cir. 1999) (inference of racial animus permissible after a “racially-
tinged comment” that referred to someone in terms of “your kind”). Notwithstanding
the inappropriate nature of these events, when viewing the totality of circumstances,
including (1) “the frequency and severity of the discriminatory conduct,” (2) “whether

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such conduct was physically threatening or humiliating, as opposed to a mere
offensive utterance,” and (3) “whether the conduct unreasonably interfered with the
employee’s work performance,” Vajdl v. Mesabi Acad. of Kidspeace, Inc., 484 F.3d
546, 551 (8th Cir. 2007), we agree with Fairview’s assertion that the evidence does
not “satisfy the high threshold of actionable harm” necessary to constitute a hostile
work environment, Elmahdi v. Marriott Hotel Servs., Inc., 339 F.3d 645, 653 (8th Cir.
2003) (quotation omitted).

First, the incidents were relatively infrequent, occurring over the span of
Smith’s 12 months of active employment in the ER. See Bainbridge v. Loffredo
Gardens, Inc., 378 F.3d 756, 759-60 (8th Cir. 2004) (finding that racial remarks that
were “sporadic, no more than one per month,” over a period of two years, some of
which were “merely overheard by [the employee]” were not “so severe or pervasive
[to] alter[] the terms or conditions of his employment”); Johnson v. Bunny Bread Co.,
646 F.2d 1250, 1257 (8th Cir. 1981) (“More than a few isolated incidents of
harassment must have occurred. Racial comments that are merely part of casual
conversation, are accidental, or are sporadic do not trigger Title VII’s sanctions.”).
But see Delph v. Dr. Pepper Bottling Co. of Paragould, Inc., 130 F.3d 349, 352, 354
(8th Cir. 1997) (upholding hostile work environment claim where the plaintiff had
been subjected to “a steady barrage of racial name-calling at the [defendant’s]
facility”); Ways v. City of Lincoln, 871 F.2d 750, 754-55 (8th Cir. 1989) (upholding
a finding of a hostile work environment where the plaintiff had identified
approximately 50 examples of racial harassment).

Next, although we look to the frequency of harassment, it is but one factor of
our analysis and even infrequent conduct can be actionable if severe enough. See
Bowen, 311 F.3d at 884-85. The severity of the conduct here does not rise to the
requisite level needed to establish a hostile work environment. Most of the events
involved conduct that was not particularly severe, involved coworkers as opposed to
Smith’s direct supervisors, and could only be considered non-actionable, “mere

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offensive utterance[s].” Singletary, 423 F.3d at 893; see Nitche v. CEO of Osage
Valley Elec. Coop., 446 F.3d 841, 846 (8th Cir. 2006) (“To be actionable, the conduct
complained of must be extreme in nature and not merely rude or unpleasant.”); Carter
v. Chrysler Corp., 173 F.3d 693, 702 (8th Cir. 1999) (noting that we also consider the
“physical proximity to the harasser, and the presence or absence of other people”).
In fact, the record is void of “any of the physically threatening or intimidating
behavior that we have found important in some actionable cases.” Anderson, 606
F.3d at 520 (citing Reedy v. Quebecor Printing Eagle, Inc., 333 F.3d 906, 909-10 (8th
Cir. 2003) (finding hostile work environment when a death threat was involved));
Bowen, 311 F.3d at 885 (“Lee’s serious misconduct and Bowen’s subjective fear of
bodily harm adequately demonstrate, for summary judgment purposes, that Lee’s
conduct was both objectively and subjectively hostile or abusive.”).

In sum, the totality of the evidence, taken in the light most favorable to Smith,
does not support Smith’s contention that her workplace was “permeated with
discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive
to alter” her conditions of employment, and thus, Smith has not successfully
established a hostile environment claim. See Harris, 510 U.S. at 21. We conclude
that, although many of the coworkers’ “racially tinged” comments and actions were
“ill-chosen,” and “however ill-advised [their] attempts at racial humor, [the] conduct
did not give rise to an actionable claim of racial hostility.” Canady, 440 F.3d at 1035.

B. Constructive Discharge

Although she resigned, Smith may bring a Title VII claim against Fairview as
long as she properly establishes constructive discharge. See O’Brien v. Dep’t of
Agri., 532 F.3d 805, 810 (8th Cir. 2008). To do so, Smith must show that she
“subjectively perceive[d] the environment to be abusive” and that “a reasonable
person would have found the conditions of employment intolerable and that
[Fairview] either intended to force [her] to resign or could have reasonably foreseen

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that [she] would do so as a result of its actions.” Fenney v. Dakota, Minn. & E. R.R.,
327 F.3d 707, 717 (8th Cir. 2003) (quotations omitted). This is a “substantial” burden
as the “bar is quite high” in these cases. O’Brien, 532 F.3d at 810-11 (quotations
omitted). Because we have already concluded that Smith has not successfully shown
that her hostile work environment claim should have survived summary judgment, her
constructive discharge claim also fails. See Penn. State Police v. Suders, 542 U.S.
129, 146-47 (2004) (“A hostile environment constructive discharge claim entails
something more [than an actionable hostile work environment].”); O’Brien, 532 F.3d
at 811 (“[Plaintiff] premises her constructive discharge claim on the same allegations
we found insufficient to establish a hostile work environment. As such, her claim
fails.”).

C. Retaliation

Smith alleges that Fairview retaliated against her for complaining of her
coworkers’ discriminatory behavior by disciplining her with the three NCAs. “Title
VII prohibits retaliation against an employee who files charges of discrimination.”
Thompson v. Bi-State Dev. Agency, 463 F.3d 821, 826 (8th Cir. 2006); accord 42
U.S.C. § 2000e-3(a). Because Smith did not present any direct evidence of retaliation,
we apply the burden-shifting analysis established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), which requires that Smith first present a prima facie case
of retaliation. See Hughes v. Stottlemyre, 506 F.3d 675, 678-79 (8th Cir. 2007), cert.
denied, 128 S. Ct. 1741 (2008). Establishing a prima facie case of retaliation to defeat
summary judgment requires a showing that: “(1) [the plaintiff] engaged in statutorily
protected activity; (2) an adverse employment action was taken against [the plaintiff];
and (3) a causal connection exists between the two events.” Green v. Franklin Nat’l
Bank of Minneapolis, 459 F.3d 903, 914 (8th Cir. 2006) (quotation omitted). As the
district court assumed that Smith satisfied the first two elements of her prima facie
case, and because Fairview makes no argument otherwise, we limit our discussion to
the third prima facie element.

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 To establish the requisite causal connection, Smith relies almost exclusively on
the temporal proximity between her complaints of discrimination and her receipt of
the NCAs. Although “[a]n inference of a causal connection between a charge of
discrimination and termination can be drawn from the timing of the two events,”
generally “more than a temporal connection is required to present a genuine factual
issue on retaliation.” Peterson v. Scott Cnty., 406 F.3d 515, 524 (8th Cir. 2005).

“The cases that accept mere temporal proximity between an employer’s
knowledge of protected activity and an adverse employment action as sufficient
evidence of causality to establish a prima facie case uniformly hold that the temporal
proximity must be very close.” Breeden, 532 U.S. at 273 (quotation omitted). We
have held that a two-week period of time was close enough to establish causation. See
Smith v. Allen Health Sys., Inc., 302 F.3d 827, 833 (8th Cir. 2002) (“[The plaintiff’s]
family leave began on January 1 and [the superior] discharged [the plaintiff] on
January 14. These two events are extremely close in time and we conclude that under
our precedent this is sufficient, but barely so, to establish causation, completing [the
plaintiff’s] prima facie case.”); Sprenger v. Fed. Home Loan Bank of Des Moines, 253
F.3d 1106, 1113-14 (8th Cir. 2001) (noting that a “matter of weeks” between a
protected activity and an adverse employment action was sufficient to complete a
prima facie case of discrimination). But see Kipp v. Mo. Highway & Transp.
Comm’n, 280 F.3d 893, 897 (8th Cir. 2002) (noting that a two-month interval between
the employee’s termination and her retaliation complaint, by itself, was not enough
to establish a causal connection as a matter of law). Here, the temporal proximity
between Smith’s complaints of discrimination, EEOC filing, and her receipt of the
NCAs is tenuous at best, as the shortest interval between any of them is approximately
one month. Absent any additional evidence of causation, we conclude that Smith has
failed to establish this element of her prima facie case of retaliation.

Even if the temporal proximity was enough to establish a prima facie case of
retaliation, Fairview offered legitimate, nondiscriminatory reasons for giving Smith

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the NCAs. Once a plaintiff establishes a prima facie case of retaliation, “the burden
shifts to the defendant to articulate a legitimate, non-retaliatory reason for the adverse
action.” Macias Soto v. Core-Mark Int’l, Inc., 521 F.3d 837, 841 (8th Cir. 2008). If
the defendant presents such a reason, the plaintiff must prove that it is a pretext for
retaliation. Id.

All of Smith’s NCAs reflect legitimate, employment-related concerns and do
not reflect false accusations or evidence that Fairview inappropriately papered Smith’s
file with minor infractions. See Kim v. Nash Finch Co., 123 F.3d 1046, 1061 (8th Cir.
1997) (holding that a “jury could have reasonably found that [the employer] placed
the written reprimand[s] in [the employee’s] personnel file in order to discredit [the
employee] when [there was an investigation of] his employment discrimination
charge”). Thus, the burden shifts to Smith to present evidence of pretext, and she has
failed to do so. Smith attempts to establish pretext by asserting that she was
disciplined more severely than her coworkers. Smith claims that she was treated
unfairly when she was given the NCAs for her performance, while her coworkers
faced no disciplinary actions for their discriminatory behavior towards her. While
“[i]nstances of disparate treatment can support a claim of pretext, . . . [Smith] has the
burden of proving that she and [her coworkers] were similarly situated in all relevant
respects.” King v. Hardesty, 517 F.3d 1049, 1063 (8th Cir. 2008) (quotation omitted);
see also Putman v. Unity Health Sys., 348 F.3d 732, 733-34 (8th Cir. 2003) (noting
that to establish pretext, a plaintiff must “substantiate [her] allegations with sufficient
probative evidence [that] would permit a finding in [her] favor based on more than
mere speculation, conjecture, or fantasy”). Smith has produced no evidence that her
coworkers were “involved in or accused of the same offense and [were] disciplined
in different ways,” thus she has not shown that she and her coworkers “were similarly
situated in all relevant aspects.” King, 517 F.3d at 1063 (quotation omitted).
Therefore, Smith’s retaliation claim fails. In conclusion, the district court properly
granted summary judgment to Smith on her retaliation claim.

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 IV.

Accordingly, we affirm the district court’s judgment.

BYE, Circuit Judge, concurring in part and dissenting in part.

I concur in the opinion of the Court except with respect to Part II.A, which
concludes Shelia Smith did not present sufficient evidence to create a genuine issue
of material fact on her hostile work environment claim. Because I believe her
complaint and the record each do indeed support such a claim, I respectfully dissent.

As the majority notes, “[s]ummary judgment should be granted in employment
discrimination cases only if the evidence could not support any reasonable inference
of discrimination” and should only be affirmed if the employer is entitled to judgment
as a matter of law. Elnashar v. Speedway SuperAmerica, LLC, 484 F.3d 1046, 1055
(8th Cir. 2007).

The fourth element of a hostile work environment claim under Title VII
requires the plaintiff to provide sufficient evidence showing “the harassment affected
a term, condition, or privilege of his employment.” Id. at 1058. In order to satisfy this
prong, Smith must provide sufficient evidence that she reasonably perceived the racial
harassment was “severe or pervasive.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 22
(1993). However, she does not need to show there was a physical manifestation of the
harm, so long as there is evidence the working environment was affected in some way.
Id. at 21. In deciding whether this element is satisfied, courts must look at “all the
circumstances” to determine “whether an environment is sufficiently hostile or
abusive.” See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001). The
majority concludes Smith did not present sufficient evidence “the harassment affected
a term, condition, or privilege of [her] employment.” Elnashar, 484 F.3d at 1058. I
disagree.

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 I believe the district court improperly reviewed incidents of racial hostility by
separating Smith’s allegations into three categories instead of viewing the “totality of
the circumstances.” Anderson v. Durham D&M, L.L.C., 606 F.3d 513, 519 (8th Cir.
2010). At summary judgment, the district court categorized the incidents alleged by
Smith into three groups.6 In doing so, the court looked at each allegation of
harassment in isolation instead of looking at “the accumulation of abusive conduct”
to make its summary judgment determination. See Hathaway v. Runyon, 132 F.3d
1214, 1222 (8th Cir. 1997). It is necessary that courts look at “all the circumstances,”
including those which are not explicitly racial in nature, when analyzing allegations
of workplace harassment. Breeden, 535 U.S. at 270. See also Hathaway, 132 F.3d at
1222 (“Not every aspect of a work environment characterized by hostility and
intimidation need be explicitly sexual in nature to be probative.”).7 In this case, the
majority focuses its analysis only on the most flagrant instances of racial animus to
the exclusion of numerous other incidents. In prior cases, however, when there was
evidence of overt harassment, we looked at all allegations, not just the incidents
demonstrating overt racial animus, to determine whether the incidents were frequent
or severe enough to affect a term, condition, or privilege of employment. See Diaz
v. Swift-Eckrich, Inc., 318 F.3d 796, 799 (8th Cir. 2003) (finding a triable issue of fact
on whether harassment altered a term of employment where evidence was presented

6
The categories were (1) incidents tenuously related to race and not evincing
racial animus; (2) incidents giving rise to an inference that they were racially
motivated; and (3) incidents demonstrating overt racial animus.
7
The majority cites Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)
for the proposition that the stringent hostile work environment standard is designed
to “filter out complaints attacking the ordinary tribulations of the workplace.”
However, this language refers to the claim as a whole instead of specific incidents
reviewed piecemeal. The Supreme Court clearly articulated the sufficiency of a claim
is judged “by looking at all the circumstances” and not only reviewing the allegations
found to be explicit harassment. Id.
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of overtly racial remarks along with actions such as making “rude noises, laughter,
and statements that [plaintiff] was ‘stupid’”); Eich v. Bd. of Regents for Cent. Mo.
State Univ., 350 F.3d 752, 759 (8th Cir. 2003) (“The humiliating and intimidating
effect of the snickers and noises on [plaintiff] could have been interpreted by the jury
to be caused by the nexus between that behavior and [the harasser's] earlier sexual
overtures.”); Bowen v. Mo. Dep’t of Soc. Servs., 311 F.3d 878, 884 (8th Cir. 2002)
(finding a few explicitly racial actions coupled with frequent hostile stares sufficient
to create a triable issue of fact on whether the conduct altered a term of employment);
Hathaway, 132 F.3d at 1222 (finding that other acts in the workplace can be used as
a nexus with overt acts of harassment to establish a prima facie case).8 Since it is
essential to a hostile work environment claim to show that conduct is either “severe
or pervasive,” the district court failed to acknowledge other allegations can form the
nexus to establish a prima facie case. See Hathaway, 132 F.3d at 1222. As such, I
believe the district court improperly reviewed the allegations as isolated events instead
of considering “the accumulation of the abusive conduct.” Id.

In viewing the totality of the circumstances, I would conclude Smith created a
trial-worthy issue on whether the harassment Smith alleges altered a term, condition,
or privilege of employment. My review of the record leads me to conclude Smith
produced sufficient evidence to create a fact issue as to whether “the cumulative
effect” of the workplace harassment was “severe or pervasive” to support her claim.
See Bowen, 311 F.3d at 885.

8
The majority states that only instances which “have a racial character or
purpose” can be used to support a hostile work environment claim. Singletary v. Mo.
Dep’t of Corrs., 423 F.3d 886, 893 (8th Cir. 2005). However, as recognized in Diaz,
Eich, Bowen, Hathaway, and other cases, whether a particular incident is racial in
character is a question properly submitted to the jury, so long as the evidence as a
whole permits such an inference.
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 The facts in this case are similar to those in Bowen, where an employee suffered
overt racial harassment on a few occasions. Id. The incidents included: (1) a co-
worker calling plaintiff a “white bitch” and a “menopausal white bitch;” and (2) other
employees telling the plaintiff that the co-worker did not like white people. Id. We
also reviewed other allegations which were not overtly racial. Id. Such incidents
included: (1) the co-worker throwing a cake which the plaintiff made on the floor; (2)
hostile stares by the co-worker toward the plaintiff; (3) the co-worker making threats
of physical beating; and (4) the co-worker running at the plaintiff. Id. All of these
incidents occurred within the plaintiff’s two years of employment. Id. We found that
although the “conduct towards [plaintiff] was not frequent, neither was it infrequent”
and there was enough evidence for a jury to consider whether the accumulation of the
conduct was severe enough to alter a term of the plaintiff's employment. Id.

Comparing Smith’s case to Bowen, some of the harassment endured by Smith
was overtly racial. For example, (1) the picture of Buckwheat posted with other
employees’ childhood photographs with a caption saying “Guess who this is?”; (2)
employees stating Smith “needs to go back to the ghetto;” (3) overtly racist t-shirts
displayed for Smith by other employees on getoffended.com; (4) a nurse stating “these
black aides don’t know what they are doing;” and (5) a nurse stating “[j]ust like a dog,
you beat them and abuse them, they still come back. Just like any good runaway
slave.” Like Bowen, Smith also alleged incidents which were not explicitly racial.
Incidents included: (1) a co-worker stating Smith’s conversation with a Somali
volunteer about ethnic food was “inappropriate;” (2) co-workers showing Smith the
image of three people who appeared to be African-American on The Onion with the
caption “Show us your tits for emergency rations;” (3) Smith bringing ethnic food to
work and a co-worker stating that “crap in [the co-workers] garbage” smelled better;
(4) a co-worker commenting that “[p]eople can’t see [Smith’s acne] because [she’s]
black;” and (5) a co-worker’s comment on Smith’s ability to speak Spanish. The
determination of whether the sum of the incidents alleged by Smith create a hostile
work environment should be left to the fact-finder because “[o]nce there is evidence

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of improper conduct and subjective offense, the determination of whether the conduct
rose to the level of abuse is largely in the hands of the jury.” Howard v. Burns Bros.,
Inc., 149 F.3d 835, 840 (8th Cir. 1998). Viewing the allegations together, I would
conclude the evidence presented by Smith creates a “reasonable inference” that the
cumulation of racial animus altered a term of Smith’s employment.

In attempting to distance this case from the holding in Bowen and other similar
cases, see Diaz, 318 F.3d 796; Hathaway, 132 F.3d 1214, the majority attempts to read
into the hostile work environment claim a requirement that all incidents of
mistreatment possess “congruency of person or incident.” Ante at 11. Whatever the
precise meaning of this requirement, imposing this additional burden on plaintiffs in
hostile work environment cases is not supported by law. Although it is true that
plaintiffs must establish a causal nexus between the harassment and their membership
in the protected group and, separately, appreciable effect of harassment incidents on
a term, condition, or privilege of their employment, no cases require them to establish
that all harassment emanated from the same individual or occurred immediately
following the most palpable instances of harassment.

Even to the extent the majority interprets the law to require “congruency of
person or incident” to explain why some seemingly innocuous conduct has racial
undertones to a particular plaintiff, application of this requirement to dismiss this case
violates this court’s obligation to view all the evidence in the light most favorable to
the nonmoving party, see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986), and use summary judgment in employment discrimination cases
sparingly, Wallace, 442 F.3d at 1117. Smith experienced several instances of
harassment with varying degree of racial animus. But even with regard to the least
culpable of these instances, which were classified by the district court as “tenuously
related” to race, a rational trier of fact could conclude they were related to Smith’s
membership in the protected group. The point is that the court cannot completely
disregard these instances merely because they are not the strongest card in the

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plaintiff's hand. For fear of consider weaker incidents “in isolation,” the majority
completely disregards them. Rather than draw its own conclusions on how offensive
or racially insensitive these instances are to a reasonable person, the majority must
leave this task to the jury.

The majority also cites Anderson for the proposition the harassment alleged by
Smith was not severe because it is void of “physically threatening or intimidating
behavior.” 606 F.3d at 520. However, particularly egregious examples of harassment
should not mark the boundary of actionable harm. See Harris, 510 U.S. at 22 (holding
the most egregious examples do not determine when an environment is sufficiently
hostile or abusive). Additionally, the severity of a work environment should not
simply be measured by a single event which is extreme in nature, but also by the
cumulation of abusive conduct toward an employee. See Hathaway, 132 F.3d at 1222.
There is clear evidence that Smith was harassed on several occasions because of her
race. Since this is certainly offensive conduct, the assessment of whether the
harassment created a hostile work environment should be left in the hands of the jury.
See Howard 149 F.3d at 884.

In sum, I believe the evidence provided by Smith is sufficient to create a jury
question on whether the harassment at her workplace altered a term of her
employment. Therefore, I would reverse the district court’s grant of summary
judgment to Fairview on Smith’s hostile work environment claim, and remand this
case for trial.
______________________________

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