United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2414
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Dolores L. Chivers, *
*
Plaintiff, *
*
Chestine Clay, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Wal-Mart Stores, Inc., doing *
business as Wal-Mart, doing *
business as Wal-Mart Associates, Inc., *
*
Defendant - Appellee. *
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Submitted: February 17, 2011
Filed: June 9, 2011
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Before LOKEN, MELLOY, and SHEPHERD, Circuit Judges.
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MELLOY, Circuit Judge.
Wal-Mart Stores, Inc. ("Wal-Mart") terminated Chestine Clay in September of
2006. Clay sued Wal-Mart under the Minnesota Human Rights Act ("MHRA"),
alleging that Wal-Mart terminated her and took other adverse employment actions
against her because she made complaints of discrimination. The district court1 granted
summary judgment in favor of Wal-Mart. Clay appeals, and we affirm.
I. Background
Clay, an African-American woman, began working for Wal-Mart at a
Mississippi store in 2002. She completed the company's management training
program and became an assistant manager at a Fridley, Minnesota store in 2003. In
2005, Clay became the manager of the Vision Center at a Bloomington, Minnesota
store. As manager, Clay was responsible for handling the Vision Center's budget,
inventory, and personnel.
Shortly after becoming manager in 2005, Clay felt two other Wal-Mart
employees had discriminated against her because of her race. Specifically, according
to Clay, an employee named LaRae "yelled at" her for "retrieving documents from [a]
printer" and another employee named Tina refused to process claims that Clay
submitted regarding the Vision Center's damaged goods. Clay believed these were
instances of race-based discrimination and reported them to Curtis Knipp, the
Bloomington store manager, and Becky Fritz, the district manager who was Clay's
immediate supervisor.
Knipp told Clay that he had spoken with LaRae and Tina regarding Clay's
complaints, but, according to Clay, "nothing seemed to change" in LaRae's and Tina's
conduct. Thus, on August 31, 2005, Clay filed a formal complaint of race
discrimination with Dennis Davis, a Wal-Mart district manager. After interviewing
Clay and speaking with LaRae and Tina, Davis told Clay that he did not believe she
1
The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
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had been the victim of race discrimination. Although Clay disagreed, she believed
Davis's investigation resulted in an improvement in LaRae's and Tina's conduct.
Later, however, Clay believed LaRae and Tina had "resumed their inappropriate
and discriminatory conduct against" her. Additionally, Clay believed that Knipp had
discriminated against her by failing to provide certain assistance that Clay requested,
by excluding Clay from management meetings, and by generally treating Clay with
a lack of courtesy, such as by failing to greet her and by offering her a piece of candy
from his mouth. Thus, at some point prior to July of 2006, Clay reported LaRae's,
Tina's, and Knipp's allegedly discriminatory conduct to Fritz. Then, in July of 2006,
Clay reported this conduct to Deb Thoennes, who had replaced Fritz as Clay's
supervisor. According to Clay, however, Thoennes "was not interested in hearing
about" Clay's discrimination complaints.
In August 2006, Thoennes investigated Clay's performance as the manager of
the Vision Center. Four Wal-Mart employees who either worked with Clay or worked
under her supervision gave written statements that criticized Clay's management skills,
attitude, and customer service. After Clay again contacted Thoennes on August 22
to discuss LaRae's, Tina's, and Knipp's allegedly discriminatory conduct, Thoennes
met with Clay around August 24 to discuss Clay's complaints and to discuss the
concerns that Wal-Mart employees had raised regarding Clay's performance. On
August 28, Thoennes disciplined Clay in writing for "Poor Customer/Member
Service."
Around this time, Charlene Munson, one of the employees who Clay
supervised, asked Clay to "give her a call to let [Munson] know how [Clay] was
doing." On August 29, therefore, Clay called Munson at home during "nonworking
hours." During the roughly hour-and-a-half long phone call, Clay and Munson talked
about some personal issues and some "work-related issues." According to Munson,
Clay said she was having a difficult time getting along with several of the employees
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in the Vision Center. Additionally, according to Munson, Clay was troubled by the
fact that several of her co-workers had written statements criticizing her performance.2
It is unclear whether Clay knew during this phone call that Munson was one of the
employees who had criticized Clay's performance.
On August 31, Clay again reported acts of alleged discrimination by LaRae,
Tina, and Knipp. Many of Clay's allegations were similar to those she had previously
made. Additionally, however, Clay claimed that Knipp had failed to timely replace
light bulbs in the Vision Center and had failed to provide the Vision Center with
storage space that Clay had requested. Clay discussed these allegedly discriminatory
acts with Thoennes in a meeting that was held on August 31.
On September 4, Munson was having a conversation with Knipp in the Vision
Center. During the course of the conversation, Munson mentioned the telephone
conversation that she had with Clay on August 29. Upon hearing about the telephone
conversation, Knipp informed Munson that she should be compensated for the time
she spent talking on the phone with Clay. Thus, Munson wrote a statement regarding
the nature of the August 29 phone call, submitted the statement to Knipp, and
subsequently received compensation for her time.
On September 6, Thoennes met with Clay and discussed the August 29 phone
call. Thoennes told Clay that the phone call had violated Wal-Mart's "Working Off
The Clock" policy, which prohibits "supervisor[s] or manager[s] [from] request[ing]
that Associates work off the clock." Essentially, employees work off the clock when
they perform work without receiving compensation for the time they work. Thoennes
then told Clay that because of Clay's policy violation, Thoennes was terminating her.
2
Clay does not dispute that she discussed these specific issues with Munson
during the August 29 phone call.
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On August 29, 2008, Clay and a co-plaintiff sued Wal-Mart in Minnesota state
3
court. Clay alleged that Wal-Mart had violated the MHRA by committing race and
gender discrimination against her and by retaliating against her for making complaints
of discrimination.4 On September 26, 2008, Wal-Mart removed the action to the U.S.
District Court for the District of Minnesota. On February 1, 2010, Wal-Mart moved
for summary judgment. The district court granted Wal-Mart's motion on May 19,
2010.
Clay appeals the district court's grant of summary judgment in favor of Wal-
Mart. Clay does not appeal the court's disposition of her race- and gender-
discrimination claims. Rather, Clay argues that the district court erred in granting
summary judgment in favor of Wal-Mart on her retaliation claims.
II. Discussion
"We review a district court's grant of summary judgment de novo, reading the
record in a light most favorable to the nonmoving party and giving the nonmoving
party the benefit of all reasonable inferences drawn from the record." Colenburg v.
Starcon Int'l, Inc., 619 F.3d 986, 992 (8th Cir. 2010) (internal quotation marks
omitted). "We will affirm if no genuine issue of material fact exists and the [movant]
is entitled to judgment as a matter of law." Sandoval v. Am. Bldg. Maint. Indus., Inc.,
578 F.3d 787, 792 (8th Cir. 2009).
3
Dolores Chivers was the co-plaintiff who joined Clay's lawsuit. Chivers
alleged that Wal-Mart had violated the MHRA by discriminating against her on the
basis of her race and gender and by retaliating against her. The district court granted
summary judgment in favor of Wal-Mart. Chivers initially appealed, but she has since
settled her claims.
4
Clay also asserted claims against Wal-Mart for failing to pay her over-time
and past-due wages. Clay voluntarily dismissed these claims before the district court.
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Clay argues that there is a genuine issue of material fact regarding whether Wal-
Mart retaliated against her on several occasions for reporting alleged acts of
discrimination. Under the MHRA, "'[a] reprisal claim is analyzed under the
McDonnell Douglas[5] burden-shifting test.'" Colenburg, 619 F.3d at 994 (quoting
Hoover v. Norwest Private Mortg. Banking, 632 N.W.2d 534, 548 (Minn. 2001)).
"Under the McDonnell Douglas framework, an employee has the initial burden of
establishing a prima facie case of retaliation." Fercello v. Cnty. of Ramsey, 612 F.3d
1069, 1077 (8th Cir. 2010). To establish a prima facie case of retaliation under the
MHRA, "an employee must show that (1) [she] engaged in protected activity, (2) the
defendant took adverse action against [her], and (3) that there is a connection between
the two." Colenburg, 619 F.3d at 993.
Clay argues that on numerous occasions she engaged in protected activity by
reporting alleged acts of discrimination. There is evidence that Clay reported acts of
discrimination (1) to Knipp at some point before August 31, 2005, (2) to Davis on
August 31, 2005, (3) to Fritz at some point before July of 2006, (4) to Thoennes in
July of 2006, and (5) again to Thoennes on several days between August 22 and 31,
2006. Wal-Mart does not dispute that Clay's complaints of discrimination were
protected activity. Thus, we will assume that Clay has established the first prong of
her prima facie case of retaliation.
Under the second prong of her prima facie case, Clay argues that she suffered
a number of adverse employment actions after her discrimination complaints. First,
she argues that she suffered adverse employment actions when Knipp "treat[ed] her
with disrespect," "refus[ed] to acknowlege her in common greetings," and
"demean[ed] her by offering her a piece of candy he had in his mouth." We disagree
with Clay that these are adverse employment actions. Generally, adverse employment
action is "action that would deter a reasonable employee from making a charge of
5
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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employment discrimination or harassment." Fercello, 612 F.3d at 1077–78. However,
"not everything that makes an employee unhappy is an actionable adverse action."
Devin v. Schwan's Home Serv., Inc., 491 F.3d 778, 789 (8th Cir. 2007). Here,
although Knipp's alleged actions may have been discourteous, they are not the sort of
actions that would deter a reasonable employee from reporting discrimination.
Clay also argues that she suffered adverse employment actions when Knipp
failed to "provid[e] her with assistance in the same manner he provided to other
department managers" and when Knipp "exclud[ed] her from management meetings."
Even if Knipp's alleged conduct constituted adverse employment actions, Clay has
failed to show a causal connection between these actions and her protected activity.
The record indicates that these adverse employment actions occurred sometime before
Clay's fourth and fifth reports of discrimination. Thus, Knipp's conduct cannot be
causally related to these reports. See Devin, 491 F.3d at 787 (indicating there can be
no causal connection between adverse employment action and protected activity when
the adverse employment action occurred before the protected activity). Clay's
argument that Knipp's conduct is causally related to Clay's first, second, or third
reports of discrimination is based upon the temporal proximity between the reports
and the adverse employment actions. However, Clay has failed to produce evidence
indicating that the temporal proximity between these actions and Clay's reports of
discrimination was close. See, e.g., Arraleh v. Cnty. of Ramsey, 461 F.3d 967, 978
(8th Cir. 2006) (evidence indicating that a "period of three weeks" has passed between
protected activity and adverse employment action "may suffice to establish
causation"). Consequently, Clay has failed to establish a causal relationship between
any of her protected activity and Knipp's failure to assist Clay or Knipp's exclusion
of Clay from meetings.
Clay next argues that she suffered adverse employment actions when Thoennes
and Knipp "secretly solicited written statements" from Clay's co-workers regarding
Clay's performance after July of 2006 and when Thoennes issued Clay "an unjustified
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discipline" on August 28 for poor customer and member service. Again, even if these
were adverse employment actions, Clay has failed to show a causal connection
between them and her discrimination complaints. Clay argues that there is a causal
connection between her fourth and fifth reports of discrimination and these adverse
employment actions because the actions occurred close in time to Clay's protected
activity. We have stated, however, that engaging in protected activity does not
"insulate an employee from discipline for violating the employer's rules or disrupting
the workplace." Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999).
Specifically, "[e]vidence that the employer had been concerned about a problem
before the employee engaged in the protected activity undercuts the significance of
temporal proximity." Herving v. Cnty. of Koochiching, 527 F.3d 711, 723 (8th Cir.
2008). This is a case where the significance of temporal proximity is undercut
because the record indicates that Wal-Mart disciplined Clay for deficiencies in her
management of the Vision Center on April 7, 2006, and for deficiencies in her
customer service on June 6, 2006. Thus, in the circumstances of this case, Clay's
evidence is insufficient to create a triable issue of fact regarding whether Wal-Mart
investigated or disciplined Clay because she made her fourth and fifth reports of
discrimination.
Finally, Clay argues that she suffered an adverse employment action when Wal-
Mart terminated her. We assume that Clay has established a prima facie case of
retaliation based upon her termination. Under the McDonnell Douglas framework,
therefore, "the burden shifts to [Wal-Mart] to articulate a legitimate, non-retaliatory
reason for its action." Fercello, 612 F.3d at 1078. Wal-Mart claims that Thoennes
terminated Clay because Clay violated the company's working-off-the-clock policy
by having a telephone conversation regarding work-related issues with Munson on
August 29, 2006, during non-working hours. We have found that "an employer's
belief that the employee committed misconduct" is a legitimate, non-retaliatory reason
for the employer's action. Richey v. City of Independence, 540 F.3d 779, 784 (8th
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Cir. 2008). Consequently, the burden shifts back to Clay to show that Wal-Mart's
proffered reason is pretext for retaliation. Fercello, 612 F.3d at 1078.
Clay argues that Wal-Mart's proffered reason is pretextual because her phone
call with Munson did not actually violate Wal-Mart's working-off-the-clock policy.
However, "[i]nsofar as [Clay] argues there is a genuine issue of fact about whether she
actually violated company policy and thus deserved to be [terminated], her argument
is misdirected." Alvarez v. Des Moines Bolt Supply, Inc., 626 F.3d 410, 416 (8th Cir.
2010). "The relevant inquiry is whether [Thoennes] believed [Clay] was guilty of the
conduct justifying discharge." Richey, 540 F.3d at 784 (internal quotation marks
omitted). This is because "[i]f the employer takes an adverse action based on a good
faith belief that an employee engaged in misconduct, then the employer has acted
because of perceived misconduct, not because of protected status or activity." Id.
Clay argues there is a triable issue of fact regarding whether Thoennes believed
Clay violated the working-off-the-clock policy. Clay notes that Thoennes based her
conclusion that Clay had violated the policy in large part upon Munson's statement
regarding the nature of the August 29 telephone conversation. In the statement,
Munson noted that Clay had talked about ongoing work-related issues, but Munson
did not indicate that Clay had asked Munson to perform any particular work-related
tasks during the conversation. Accordingly, Clay argues, Thoennes could not have
honestly believed that Clay had violated the working-off-the-clock policy.
Clay essentially asks us to find that a phone conversation during non-working
hours regarding work-related issues between a supervisor and an employee who she
supervises does not violate a policy prohibiting "supervisor[s] or manager[s] [from]
request[ing] that Associates work off the clock" and that any belief to the contrary
cannot be honestly held. Clay's argument requires us to interpret an employer's
policy, however, which we are generally reluctant to do. See Richey, 540 F.3d at 786
("It is generally for an employer to interpret its own policies . . . ."). This is because
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"[w]e do not sit as [a] super-personnel department[] reviewing the wisdom or fairness
of the business judgments made by employers, except to the extent that those
judgments involve intentional discrimination or unlawful retaliation." Logan v.
Liberty Healthcare Corp., 416 F.3d 877, 883 (8th Cir. 2005) (internal quotation marks
omitted).
Besides her own interpretation of Wal-Mart's policy, Clay presents no evidence
indicating that Thoennes did not honestly believe that Clay had violated the working-
off-the-clock policy.6 The record indicates that when Thoennes met with Clay on
September 6, Thoennes told Clay that her August 29 phone call had violated Wal-
Mart's working-off-the-clock policy and that Thoennes was terminating Clay because
of this policy violation. There is no evidence that in making this decision Thoennes
interpreted or applied Wal-Mart's working-off-the-clock policy inconsistently. See
Richey, 540 F.3d at 786 ("[The plaintiff] points to no evidence that the [employer] has
applied its policy . . . arbitrarily or inconsistently, or that any person situated similarly
to [the plaintiff] was not disciplined for violating the policy."); Twymon v. Wells
Fargo & Co., 462 F.3d 925, 936 (8th Cir. 2006). Moreover, the record indicates that
Thoennes made sure that Munson was compensated for the time she spent talking with
6
Clay argues that Thoennes could not have honestly believed that Clay violated
the working-off-the-clock policy because Thoennes's investigation into Clay's
violation was deficient. Specifically, Clay notes that Thoennes was informed of
Clay's August 29 phone call by Knipp, who Clay suggests was incredible because she
had repeatedly accused him of discrimination. Further, Clay notes that Thoennes
never interviewed Munson regarding the August 29 phone call and that Thoennes did
not interview Clay regarding the call until just before Clay's termination. We note that
"[a]n internal investigation, like a judicial proceeding, often produces conflicting
evidence and requires judgments about credibility and the weight to be given various
pieces of information." Alvarez, 626 F.3d at 417. In this case, our review of the
record indicates that Clay has not created a triable issue of fact regarding whether
Thoennes's investigation prevented her from making a "reasonably informed and
considered decision" prior to terminating Clay. Smith v. Chrysler Corp., 155 F.3d
799, 807 (6th Cir. 1998).
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Clay on the phone, which is consistent with Thoennes's belief that Clay had violated
the working-off-the-clock policy. Thus, the record indicates that Thoennes honestly
believed that Clay had violated the terms of the working-off-the-clock policy, and, in
the circumstances of this case, Clay's own interpretation of the policy is insufficient
to create a triable issue of fact regarding Thoennes's honestly held beliefs.7
Accordingly, Clay has failed to create a triable issue of fact regarding whether
Wal-Mart retaliated against her for reporting alleged discrimination. Therefore, the
district court properly granted Wal-Mart summary judgment on Clay's retaliation
claims under the MHRA.
III. Conclusion
For the foregoing reasons, we affirm the judgment of the district court.
LOKEN, Circuit Judge, concurring.
I join the opinion of the court. I write separately to add an additional factor
supporting the conclusion that Wal-Mart’s stated reason for terminating Chestine Clay
was not pretextual. Walmart’s Working Off The Clock policy is an important part of
its efforts to comply with the federal Fair Labor Standards Act. Based upon employee
Charlene Munson’s written report of what supervisor Clay said to Munson during the
August 29 phone call, federal law required Wal-Mart to treat that call as requiring
7
Clay also argues that Knipp and Thoennes investigated whether Clay violated
the working-off-the-clock policy to retaliate against Clay for making reports of
discrimination. Since we find that Clay has failed to create a triable issue of fact
regarding whether Thoennes terminated Clay in retaliation for Clay's protected
activity, we also find that Clay has failed to create a triable issue of fact regarding
whether Knipp and Thoennes investigated Clay in retaliation for Clay's protected
activity.
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Munson to work off the clock and to compensate Munson accordingly. See 29 C.F.R.
§§ 785.11-.12.
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