United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-3579
___________________________
Bernadine Stewart
lllllllllllllllllllll Plaintiff - Appellant
v.
Rise, Inc.
lllllllllllllllllllll Defendant - Appellee
____________
Appeal from United States District Court
for the District of Minnesota - Minneapolis
____________
Submitted: November 12, 2014
Filed: June 30, 2015
____________
Before MURPHY, MELLOY, and BENTON, Circuit Judges.
____________
MELLOY, Circuit Judge.
Bernadine Stewart sued her employer, Rise, Inc., alleging a hostile work
environment and discriminatory termination based on a combination of race, sex, and
national-origin discrimination. She also alleged retaliatory termination under federal
and state law. Stewart, an American-born African-American woman, alleges
specifically that a group of her subordinates, consisting largely of male, Somali-born
immigrants, created the hostile work environment. She also alleges her own
supervisors ignored her complaints for assistance, denied her the authority to
terminate the offending employees, allowed the hostile environment to persist, and
eventually terminated her employment as an act of discrimination and retaliation. The
district court granted summary judgment for Rise. We reverse and remand as to the
hostile work environment claim but affirm in all other respects.
In doing so, we note the unusual nature of this case involving allegations of
prohibited-animus hostility from subordinates towards an immediate supervisor with
that hostility possibly tolerated by higher-level supervisors. There is no dispute that
the workplace at issue involved people engaging in outrageous behavior. Rather, the
dispute exists as to what Stewart reported up the chain of command and whether the
reported conduct rose to the level of actionable hostility.
I. Background
A. General Background
From January 2007 through March 2012, Stewart served as supervisor of a
branch office for Rise, a welfare-services non-profit entity in the Twin Cities. Rise
helped people enter the workforce by providing assistance such as help with
paperwork and funding to secure childcare and transportation. Rise obtained funding
from a Minnesota welfare program named the Minnesota Family Investment Program
(also referred to as "Pathways"). Stewart's duties included the supervision of
counselors who directly assisted clients.
Stewart's own performance was measured in part by the relative workforce
participation rate for her office's clients compared to clients of other Pathways
organizations. Throughout Stewart's employment, other offices closed, a state-
government shut-down occurred, and workloads from different offices were
consolidated. These events resulted in increased work for her office without a
-2-
commensurate increase in staffing. When Stewart began working at Rise, the
workforce participation rate among clients was at a generally acceptable level.1 By
the time she was terminated, her office was second or third to last out of more than
twenty similar offices in the Twin Cities.
Stewart's predecessor and successor in the supervisor position for her branch
office both were American-born African-American women. Stewart's own
supervisor, Truc Pham, worked out of a different Rise office and visited Stewart's
branch for weekly staff meetings. Mary Stransky served as Rise's human resources
director and, like Pham, did not work primarily in Stewart's branch office.
Stewart claims several male, Somali-born subordinates created a hostile work
environment through sexist, racist, and nationalist comments and through physical
violence and intimidation, all due to the fact that Stewart was an American-born
African-American woman. The employees Stewart identifies as creating the hostile
work environment include Abdi Haid, Youssouf Robleh, Abdisalon Abdirahman,
Yasin Jama, and Stephanie Ableiter (a caucasian woman).2 In support of her claims,
Stewart relies on her own statements as presented in her affidavit, deposition
testimony, and answers to interrogatories. She also relies on the deposition
testimony, exit interview, and EEOC charge of Assata Damani, an American-born
African-American woman. Damani worked at Stewart's Rise branch and resigned in
March 2011, about a year before Stewart's termination. Damani alleged harassment
by her male co-workers at a level that made her fear for her personal safety. We
address in detail below the alleged instances of harassment.
1
The parties agree that the workforce participation rate for clients of Stewart's
Rise office, relative to the clients of other Pathways offices, is a tool for measuring
performance and ensuring ongoing funding. The parties disagree as to the reasons
the rate changed over time.
2
The record does not reflect Ableiter's nationality.
-3-
In January 2012, Rise received an EEOC complaint from Damani. Around this
time, Stewart was out of the office when Pham held a meeting with Stewart's staff.
According to Pham and Stransky, the staff complained about Stewart's management
style and Pham and Stransky believed there had been a complete breakdown in
management and morale at the office. Pham asserts that he was concerned about the
office's poor workforce participation rate and the possible loss of funding. Pham,
Stransky, and Pham's supervisor, Donald Lavin, assert that they made the decision to
terminate Stewart's employment. Pham and Stransky claim to have prepared a
termination memo on January 23 or 24 that cited a steadily declining workforce
participation rate as the reason for termination. The memo, which is part of the
record in this appeal, lists January 27 as the termination date.
Before they delivered the memo to Stewart, however, Stewart's mother died and
Stewart requested FMLA leave. In response, Pham and Stransky withheld the memo
and granted the leave. Stewart worked on an intermittent basis for a few weeks and
returned to mostly full-time work in late February 2012. While on FMLA leave,
Stewart filed an EEOC complaint alleging a hostile work environment. Rise received
the EEOC complaint prior to firing Stewart but after Pham and Stransky created the
January 2012 memo.
According to Pham and Stransky, after Stewart had been back in the job and
appeared to no longer require FMLA leave, they terminated her employment on
March 12, 2012. A termination memo they provided to Stewart was essentially the
same as the January 2012 memo but with additional details regarding the branch
office's relative workforce participation rate.
Stewart eventually sued, asserting claims of hostile work environment,
discriminatory termination, and retaliatory termination. She did not assert an FMLA-
related claim. In describing the workplace environment, Stewart states that she
reported instances of harassment to Pham and Stransky verbally. Pham largely denies
-4-
that Stewart made such reports, whereas Stranksy admits Stewart made reports. Some
reported conduct on its face shows an animus based on race, sex or national origin;
other reported conduct does not. Stewart admits she did not expressly label or
identify all reported conduct as discriminatory.
The instances of harassment Stewart claims to have reported verbally to Pham
or Stransky (or which Stewart claims they knew of through other sources) include3:
1. Haid, Robleh, and Jama openly called Stewart a bitch. Jama
regularly called Stewart a bitch.
2. Robleh and Haid called Damani a bitch, screamed at Damani, and
slammed doors in her face.
3. Haid said, "African American women are bitches and that's why
nobody likes you."
4. Haid and Robleh said African-American women have no value.
5. Haid yelled at Stewart, "F**k you, everyone around here does not
like you."
6. Robleh stood in the doorway to Damani's office with his pants
unzipped. When Damani and another woman asked Haid to say
something to Robleh, Robleh and Haid spoke in Somali and
smiled, but Robleh did not correct the problem.
7. Haid threw a case file at Stewart with enough force to push a
phone book across her desk while screaming he would not take
directions from her. Damani reported the incident to Pham,
describing the incident as Haid throwing a book at Stewart's head.
Damani also stated that Haid admitted the incident occurred and
3
Although offset, the phrases are not quotations unless noted. This format is
adopted for convenience.
-5-
that Haid said he would do it again. Stewart reported the incident
to Stransky, who told Stewart she was "making a mountain out of
a molehill." Stewart asked for Haid to be fired after the incident.
Pham failed to fire Haid, and Stewart felt unable to have a
subordinate discharged.
8. When Stewart would wear black clothing, Jama commented on
her clothes asking if she was "looking for a husband or a man?"
Robleh told Stewart and Damani, "women who wear black need
a man" and also stated, "are you looking for a husband? Those
are colors that you wear when you look for a man."
9. An audit of Robleh's files revealed forged client signatures and
resulted in a requirement that Stewart sign Robleh's files. In
response, Robleh stated of the female auditor that if he could get
his "hands around her neck he would have choked her to death."
And Haid described the female auditor, stating, "She's just a white
woman; she doesn't know what she's doing."
10. Robleh's applications for clients' childcare became so poor that a
county worker who reviewed the applications refused to take
them without Stewart's review. Robleh then stated repeatedly in
the office that he wanted to beat the county worker to death. He
also stated his applications would not go through because Stewart
and Damani were having an affair with the county worker, "a
white man." Damani complained about the threats to Pham, but
Pham denied she made such complaints. Later, at a staff meeting,
someone raised Robleh's threats, and Pham called them
"inappropriate." Stransky admitted learning of Robleh's
complaints, but Stransky characterized them as "just part of the
job."
11. Abdirahman entered Stewart's office and stood over her in an
intimidating manner. Pham instructed Abdirahman not to meet in
Stewart's office.
-6-
12. Robleh, Haid, and Jama refused to answer phones, describing the
task as "women's work."
13. After a cut in funding, janitorial service was reduced. Stewart
developed a rotating schedule for workers to clean the bathroom,
but the male counselors refused, calling it "women's work."
When Stewart confronted Robleh and Haid about this, they spoke
in Somali, but Stewart heard her name and "bitch." She also
heard them refer to her as "maid."
14. Many of the male Somali counselors used the office as a
community center, entertaining non-clients, using office
resources, and visiting purportedly insecure foreign-language
internet news sites, thus compromising office computers. These
men refused Stewart's demands to change this behavior, and
Pham and Stransky failed to aid in Stewart's efforts to reign in
this behavior.
15. At a staff meeting with Pham and Stransky present, supervisors
addressed behavior. Robleh yelled at Stransky and Pham and hit
a desk saying, "You are not going to treat me like this."
According to Damani, Stransky turned pale, Damani told Stransky
Robleh scared her, and Stransky told Damani she would talk to
Stewart. Stransky, however, denies anyone expressed safety
concerns about Robleh.
16. According to Damani, Robleh and Haid stated, "American women
were disrespectful because they were not beaten enough." And
Jama stated, "American women were out of control." Damani
asserts that she complained to Pham who responded the
comments were inappropriate. Pham denies either Damani or
Stewart raised concerns about such statements.
17. Ableiter refused to take instruction from Stewart, yelled at
Stewart, and discriminated against African-American clients. At
least one client complained via letter that was sent to Stransky.
-7-
18. Stewart sought to terminate Ableiter but was told by Stransky that
she lacked the authority to terminate Ableiter.
19. And finally, in one instance, Robleh believed Damani was
standing in a particular location so as to eavesdrop on his
conversations. He grabbed Damani's arm, pushed her against a
wall, threatened her, and accused her of eavesdropping. Damani
reported the incident to Stewart, and Stewart reported it to
Stransky.
Many of the claims of verbal reports to Pham and Stransky exist only in
Stewart's affidavit, answers to interrogatories, or deposition. Stewart claims, for some
reports, that she followed up with emails to Pham or Stransky. Stewart, however, did
not pursue electronic discovery relating to her work email or the emails of Pham and
Stransky. As described above, Damani confirmed several of the incidents and
referenced discussions with Pham or Stransky about the incidents.
Many of the claims also are corroborated based on Stransky's deposition or
undated notes Stransky admits are hers. These notes state4:
She's not getting involved. The guys run to Truc.
She thinks they don't want to take direction from a female.
In resource room looking for files—Assata said—she couldn't talk to
him and she told Bernadine he was pushing on me.
Assata complaining I don't want to leave—I'm not a quitter don't want
to take this anymore.
Stephanie treated people of color much worse than whites.
4
The contents of Stransky's informal notes are excerpted quotes presented
without further notation of omissions and without correction.
-8-
Abdi Haid—Yasin—wearing orange you look like a fat orange
Yousouf—when you are wearing all black—you are looking for a man
"bitch" to my back
Kay Hanahan—glad you're here because Amina & the guys would curse
"women shouldn't work & should stay home"
"Yousouf & Abdi told Assata that whatever goes on in the office—don't
tell Bernadine or there would be a consequence."
"All the men would wait for women to answer phones"
Stransky stated in her deposition that several people from Stewart's branch
office had made her aware of Robleh and Ableiter's yelling and Robleh's threats
regarding the county worker. Stransky also stated she discussed the threats with
Pham, although Pham stated in his own deposition that he had no knowledge of the
threats. Stransky discussed the notes quoted above, could not recall the dates on
which she wrote the notes, but described who made the various comments. She also
described discussing several of the items with Pham. Pham, however, denied
receiving reports of such behavior.
When Damani quit her job as a counselor, she completed an exit interview form
dated March 11, 2011. The form states three reasons for leaving: (1) Work
conditions: "threats and harassment"; (2) Health reasons: "constant and consistent
pain"; and (3) Other: "Treatment by male coworkers." Among other statements in the
lengthy form, Damani concluded, "They are aware that women are treated differently
because of the male dominated culture. (Witnessed by others [sic] coworkers). Some
making threats of violence against others. Contributing to the unsafe environment."
Stransky received the form and discussed the form with Pham. In a deposition,
Damani corroborated many of Stewart's claims, indicated she was present at meetings
-9-
where she or Stewart told Pham of their concerns, and indicated Pham told them to
attribute the behavior to "cultural differences."
Notwithstanding these allegations and descriptions of harassment, Stewart
signed certifications in January 2007, September 2007, April 2008, March 2009,
March 2010, and October 2011, all of which stated:
This is to certify that I have received and read the Rise, Incorporated
Code of Conduct. To the best of my knowledge, I am unaware of any
possible violation of the standards described in the attached Code of
Conduct and/or potential conflict of interest, either by me, managers,
supervisors, or other employees. I further agree to comply with the
standards in the future and to report promptly any questions or concerns
that I may have, as noted in the Code. I understand that non-compliance
of this policy will result in consequences up to and including
termination.
The Code of Conduct referenced in these certifications stated, "Rise prohibits
discrimination of any kind. Discrimination of any employee on the basis of race,
color, creed, religion, sex, sexual orientation, national origin, age, [or] disability . . .
is against the law and will not be tolerated."
A separate, conflict resolution policy in a Rise employee handbook provided
for a graduated system of conflict resolution that (when necessary and possible)
called for a complaining party to progress sequentially from reports to human
resources or direct supervisors up to higher levels of management with written
complaints requested for situations where the initial reports failed to resolve the
problem.
Stewart does not deny signing the annual certifications regarding an absence
of Code of Conduct violations. She also does not claim to have followed the
separate, graduated, oral-then-written reporting system described in the handbook for
-10-
any of her complaints, conflicts with her subordinates, or conflicts with her superiors.
Finally, she does not claim to have memorialized her concerns or raised the concerns
in performance reviews for the subordinates.
Based on the foregoing, Rise moved for summary judgment.
B. District Court Decision
The district court first addressed Stewart's claim of discriminatory termination.
Applying the burden shifting analysis of McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802–03 (1973), the court held Stewart could not establish a prima facie case
because, by the time of her termination, she had become unqualified for her
position—she was not meeting the legitimate expectations of her employer. The
court cited performance reviews from 2009–2011 that criticized Stewart's
interpersonal and leadership skills. The court also cited references in these
performance reviews to a decreasing and unacceptable workforce participation rate
among the clients of Stewart's office.
The district court also held Stewart failed to establish a prima facie case
because she did not establish that her termination occurred in circumstances capable
of giving rise to an inference of discrimination. In reaching this separate conclusion,
the court discounted Stewart's affidavit and deposition testimony as "self-serving."
The court also noted the absence of written complaints and Stewart's failure to use the
Rise conflict-resolution framework. Finally, the court discounted remarks by co-
workers as "stray remarks by non-decisionmakers." The district court continued its
analysis, finding for essentially the same reasons that even if Stewart had established
a prima facie case, Rise articulated a legitimate rationale for Stewart's termination
(the low workforce participation rate) and Stewart failed to prove this rationale was
pretextual.
-11-
Regarding the hostile-work-environment claims, the district court granted
summary judgment for two alternative reasons. First, the court held the alleged
incidents were not sufficiently severe or pervasive to establish a hostile work
environment; the court characterized the incidents as isolated and stated Stewart
failed to show they occurred because of race, national origin, or sex. In reaching this
conclusion, the court described Stewart's affidavit and deposition testimony as "self-
serving" and as lacking written documentation or support.
Alternatively, the court held Rise was entitled to rely on the affirmative defense
of Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City
of Boca Raton, 524 U.S. 775 (1998). This defense protects an employer from hostile
work environment claims if (1) the employer exercised reasonable care to avoid,
prevent, and promptly correct harassing behavior; and (2) the employer made
preventative or corrective opportunities available; but (3) the employee failed to take
advantage of such opportunities. Ellerth, 524 U.S. at 765. The court held the
existence of Rise's Code of Conduct, conflict resolution procedure, and various other
protections coupled with Stewart's annual certifications and her failure to make
written complaints brought the case within the Ellerth/Faragher defense.
Regarding the state and federal retaliation claims, the court credited Pham and
Stransky's assertion that they made the termination decision in January prior to
Stewart's FMLA leave and prior to receiving Stewart's EEOC charge. The court also
noted that, even if Stewart's retaliation claims were based on her alleged earlier verbal
reports of harassment, the concerns about Stewart's performance and the decreasing
workforce participation rate preceded any alleged reports. Stewart appeals.
-12-
II. Discussion
We review a grant of summary judgment de novo, construing the record in the
light most favorable to the nonmoving party. Rickard v. Swedish Match N. Am., Inc.,
773 F.3d 181, 184 (8th Cir. 2014).
A. Discriminatory Termination
Regarding the claim of discriminatory termination, summary judgment was
appropriate due to Stewart's failure to establish a prima facie case, albeit for reasons
different than articulated by the district court. See Johnson v. Outboard Marine
Corp., 172 F.3d 531, 535 (8th Cir. 1999) ("We may uphold a grant of summary
judgment for any reason supported by the record, even if different from the reasons
given by the district court."). As noted, Stewart's predecessor as branch manager, as
well as her successor, were American-born African-American women. Therefore,
focusing specifically upon the circumstances of Stewart's actual termination by Pham,
Stransky, and Lavin, we find little support for an inference that discrimination by
these decisionmakers motivated the termination.
To the extent Stewart points to instances of harassment by her own
subordinates (and a lack of response or support from her own supervisors) as
evidence of a discriminatory motive in her termination, her claim simply collapses
into her hostile-work-environment theory. Stewart's subordinates were not the
decisionmakers in this case. Her own superiors may have failed to remedy or assist
in an arguably untenable and hostile situation. Their inaction when asked to protect
Stewart—a lower-level supervisor—from mistreatment by her own subordinates,
however, does not give rise to a reasonable inference that they too harbored a
discriminatory animus and fired her for a discriminatory reason.
-13-
In this regard, we have held evidence that a decisionmaker tolerated a hostile
environment can be relevant to the question of whether that decisionmaker later
terminated an employee due to a discriminatory motive. See Williams v. ConAgra
Poultry Co., 378 F.3d 790, 794 (8th Cir. 2004) ("Evidence of widespread toleration
of racial harassment and disparate treatment condoned by management was relevant
to its motive in firing Mr. Williams. We believe that evidence of racial bias in other
employment situations could permissibly lead to the inference that management was
similarly biased in the case of Mr. Williams's firing."). Although such evidence may
be relevant in a mine-run discriminatory termination case, we do not believe it
sufficient to create a triable question of fact in this case. Here, the terminated
employee herself was a supervisor over the alleged offenders, and members of the
same protected class preceded and followed her in the exact same supervisory
position. Williams, in contrast, involved express racial harassment by managers
including quid pro quo harassment with benefits extended to female African-
American employees who responded favorably to "sexually suggestive remarks." Id.
at 793.
The only evidence tethering Stewart's discriminatory termination claim to a
suggestion of a prohibited animus is the evidence of the hostile work environment.
We conclude the evidence Stewart cites in support of her hostile-work-environment
claim speaks directly to that claim. It does not, in the unique circumstances of this
matter, establish a prima facie case of discriminatory termination. We therefore
affirm the district court's grant of summary judgment on the discriminatory
termination claim.
B. Hostile Work Environment
As an initial matter, we reject summary judgment based on application of the
Ellerth/Faragher defense in this case. Questions of fact abound as to the dates of
events and reports, the relationship between the Code of Conduct and the conflict-
-14-
resolution policy, and the meaning and consequences that should be attached to
Stewart's annual Code of Conduct certifications to Rise. Therefore, although
Stewart's annual certifications and her failure to pursue a formal written system of
grievances may well be outcome determinative in the minds of jurors, they are not
determinative as a matter of law. See Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014)
(per curiam) ("By failing to credit evidence that contradicted some of its key factual
conclusions, the court improperly 'weigh[ed] the evidence' and resolved disputed
issues in favor of the moving party." (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986))).
Turning to the merits of the hostile work environment claim, Stewart must
prove "1) she belongs to a protected group; 2) she was subjected to unwelcome
harassment based on [membership in that group]; 3) the harassment affected a term,
condition, or privilege of her employment; 4) her employer knew or should have
known of the harassment; and 5) the employer failed to take proper action." Peterson
v. Scott Cnty., 406 F.3d 515, 523–24 (8th Cir. 2005), abrogated on other grounds by,
Torgerson v. City of Rochester, 643 F.3d 1031, 1059 (8th Cir. 2011) (en banc). "To
be actionable, [the] 'objectionable environment must be both objectively and
subjectively offensive, one that a reasonable person would find hostile or abusive,
and one that the victim in fact did perceive to be so.'" Clearwater v. Ind. Sch. Dist.
No. 166, 231 F.3d 1122, 1128 (8th Cir. 2000) (quoting Faragher, 524 U.S. at 787).
"[T]o determine whether an environment is sufficiently hostile or abusive, [we look]
'at all the circumstances,' including the 'frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's work
performance.'" Faragher, 524 U.S. at 787–88 (quoting Harris v. Forklift Sys., Inc.,
501 U.S. 17, 23 (1993)). "[C]onduct must be extreme to amount to a change in the
terms and conditions of employment." Id. at 788.
-15-
The record provides adequate support for the first, second, and fifth elements
of Stewart's hostile work environment claim. Stewart was subject to unwelcome
harassment based on her sex, race, and/or national origin. Rise took little or no action
to improve the situation.
The severity of the harassment and whether Rise knew or should have known
of severe harassment present closer calls. According to Stewart, Pham witnessed
first-hand instances of insubordination and intimidation. Stewart claims via affidavit
and deposition testimony that she reported instances of harassment due to the fact that
she was an African-American woman. Stewart also relies on corroboration from
Stransky's deposition and notes, inconsistencies in Stransky and Pham's depositions,
and corroboration from Damani's exit interview, deposition testimony, and EEOC
complaint.
Rise, on the other hand, downplays the significance of Stewart's affidavit,
calling the affidavit self-serving and arguing it should not be considered for summary
judgment purposes. Rise also points to Stewart's annual certifications through 2011
and Stewart's failure to make a written complaint using Rise's conflict resolution
system. Finally, Rise emphasizes that Stewart served as the front-line supervisor of
the offending employees; she was therefore responsible for dealing with situations as
they arose and reporting concerns up the chain of command. In her deposition,
Stransky repeatedly stated that Stewart was in charge of the branch office and needed
to remedy the reported issues herself.
Through this lens, Rise views Stewart as a supervisor who presided over a
group of insubordinate and offensive employees whose conduct amounted to a series
of isolated events. Rise describes Stewart as a hyper-sensitive micro-manager who
could not deal with criticism and failed to adequately report the frequency and
severity of the offensive conduct. Rise also characterizes the offending employees'
-16-
overt hostility towards Stewart as based on a communal personal dislike of Stewart
and frustration with her management style.
A jury may very well accept Rise's narrative. We may not, however, discount
evidence as urged by Rise, nor may we view the facts in the light Rise suggests. The
Federal Rules of Civil Procedure expressly contemplate the use of affidavits,
depositions, interrogatory answers, and declarations as permissible forms of evidence
at the summary judgment stage. Fed. R. Civ. P. 56(c)(1)(A) & (c)(4). Neither the
absence of written reports nor the self-serving nature of affidavits, interrogatory
answers, or deposition testimony serve to make such evidence inherently infirm. As
such, we generally do not discount such evidence at the summary judgment stage.
We may discount a plaintiff's self-serving affidavit or deposition testimony as
a matter of law where it clearly contradicts the plaintiff's earlier testimony under oath
and where the plaintiff offers no explanation for the inconsistencies. See Frevert v.
Ford Motor Co., 614 F.3d 466, 474 (8th Cir. 2010) ("We have previously 'held that
the plaintiff did not create a genuine issue of material fact simply by submitting an
affidavit that contradicted testimony at a prior deposition, where there were no
legitimate reasons for the filing of an inconsistent affidavit.'" (quoting Roberts v. Park
Nicollet Health Servs., 528 F.3d 1123, 1126 (8th Cir. 2008) (internal quotation marks
omitted))). Here, however, the alleged inconsistencies are unclear and the earlier,
purportedly inconsistent evidence is not prior testimony. The alleged inconsistencies
include: (1) the annual certifications as contrasted with the claimed verbal reports of
harassment; and (2) the failure to consistently reference animus based on race, sex,
or national origin in the claimed verbal reports to Pham and Stransky. These nuances
simply do not reach the level of assertions that "directly contradict[]" testimony under
oath and that might support the discounting of evidence as a matter of law. Id. The
impropriety of discounting such evidence becomes clear in light of the facts that: (1)
the evidence Rise seeks to discount is at least partially corroborated by Stransky's
deposition testimony and notes; (2) it is partially corroborated by Damani's EEOC
-17-
charge, exit interview, and deposition testimony; and (3) Pham's denial of knowledge
contradicts Stransky's testimony, thus lending credence to Stewart's claims. Further,
the last certification occurred in October 2011, and there is no allegation that the
hostile conduct directed towards Stewart had ceased between that date and Stewart's
March 2012 termination.
Taken in a light most favorable to Stewart, then, a different narrative emerges.
She reported many instances of harassment as harassment, and other instances as
insubordination and inappropriate behavior. To support a hostile-work-environment
claim, every instance of unwelcome conduct need not, individually, point to a
prohibited animus. See Carter v. Chrysler Corp., 173 F.3d 693, 701 (8th Cir. 1999)
(indicating that not every individual hostile act needs to, overtly and standing alone,
show an impermissible motive because certain acts, like the use of epithets "may . . .
create an inference that racial animus motivated other conduct as well"); Hathaway
v. Runyon, 132 F.3d 1214, 1222 (8th Cir. 1997) ("Not every aspect of a work
environment characterized by hostility and intimidation need be explicitly sexual in
nature to be probative."). Similarly, not every instance of offending conduct must rise
to the level of severity required to support a claim. See id. ("A work environment is
shaped by the accumulation of abusive conduct, and the resulting harm cannot be
measured by carving it into a series of discrete incidents." (citation and internal
quotation marks omitted)). Rather, an overall pattern of conduct must be considered
when assessing the sufficiency the entire claim as to both severity of the harassment
and adequacy of the reporting. See Harris, 510 U.S. at 23 (instructing that hostility
must be determined by "looking at all the circumstances").
Taken collectively, Stewart has shown enough to avoid summary judgment.
A jury could conclude the comments at issue were neither off-hand nor isolated.
According to Stewart and Damani, the comments were a consistent pattern of verbal
abuse based upon sex, race, or national origin often tied to overt acts of intimidation,
violence, or insubordination. Together with the general and open insubordination,
-18-
the threats against county workers and auditors, the intimidating stances, the throwing
of a file, and the grabbing of Damani, the conduct may be viewed as amounting to an
actionably severe hostile work environment.
Further, the reports to Stransky and Pham need not each reference a prohibited
animus. Many of the reports expressly included such references or identified conduct
or statements that required no further explanation to show the prohibited animus.
Reports that lacked facial animus or express explanations cannot be quarantined and
viewed in isolation. See Hathaway, 132 F.3d at 1222. And, as to Rise's assertion that
written rather than oral complaints were required, there is no general requirement in
the law that complaints be in a particular prescribed form. Rather, to show co-worker
harassment, an employee must show "that [her employer] knew or should have known
about the harassment and failed to take prompt remedial action reasonably calculated
to stop the harassment." Carter, 173 F.3d at 702.
That is not to say we believe this is an easy case. When the plaintiff is a
supervisor, and the objected-to conduct originates among her subordinates, a jury may
look with great suspicion upon claims that the plaintiff adequately presented her
concerns up the chain of command. Under Tolan v. Cotton, however, we may not
indulge in the discounting or weighing of evidence as requested by Rise. United
States ex rel. Miller v. Weston Educ., Inc., 784 F.3d 1198, 1206 (8th Cir. 2015) ("But
at summary judgment this court examines whether there is a genuine issue of material
fact; it does not weigh the evidence or decide credibility.").
C. Retaliation
Stewart presents a federal retaliation claim under 42 U.S.C. § 2000e-3(a), and
a state retaliation claim under a Minnesota whistleblower statute, Minn. Stat.
§ 181.932, subd. 1. We analyze both types of claims under the McDonnell Douglas
burden-shifting framework. See McDonald v. City of St. Paul, 679 F.3d 698, 707
-19-
(8th Cir. 2012) (applying the framework to claims under Title VII and the Minnesota
Human Rights Act); Hitchcock v. FedEx Ground Package Sys., Inc., 442 F.3d 1104,
1106 (8th Cir. 2006) (applying the framework to a claim under § 181.932).
Pham, Stransky, and Lavin claim to have made the decision to terminate
Stewart in January 2012, prior to Stewart's filing of her February 2012 EEOC
complaint. Pham and Stransky claim to have memorialized this intent in the memo
created on January 23 or 24 that listed January 27 as a termination date. Finally, they
assert that they withheld the memo at that time out of humanitarian concern for
Stewart who asked for and received FMLA leave due to her mother's death.
Although Stewart argues the termination decision came at a later date, there is
no evidence to rebut Rise's assertion of the January decision date. Stewart's
retaliation claim based on the February EEOC complaint therefore fails.
We reverse the grant of summary judgment to rise on the hostile-work-
environment claim, but affirm in all other respects.
______________________________
-20-