Floyd v. State of Missouri Department of Social Services

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 98-3875
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Fatma Floyd, *
*
Appellant, *
*
v. *
* Appeal from the United States
State of Missouri Department of Social * District Court for the
Services, Division of Family Services, * Eastern District of Missouri.
Rehabilitation Services for the Blind; *
Gary Stenger, in his official capacity; *
Carmen Schulz, in her official and *
individual capacity for the Missouri *
Rehabilitation Services for the Blind, *
*
Appellees. *

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Submitted: May 13, 1999

Filed: August 17, 1999
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Before WOLLMAN, Chief Judge, FLOYD R. GIBSON, and BEAM, Circuit Judges.
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WOLLMAN, Chief Judge.

Fatma Floyd appeals from the district court’s1 grant of summary judgment in
favor of the State of Missouri Department of Social Services (Department) and the
individual defendants on her employment discrimination claims brought under the
American with Disabilities Act (ADA), 42 U.S.C. § 12111-12117; Title VII of the Civil
Rights Act of 1964 (Title VII) 42 U.S.C. § 2000e-2000e-17; 42 U.S.C. § 1983; and the
Missouri Human Rights Act (MHRA), Mo. Rev. Stat. § 213.055. She also appeals
from the district court’s denial of her motion to amend her complaint. We affirm.

I.

Floyd is a blind Turkish Muslim who was employed by Rehabilitation Services
for the Blind (RSB), an agency operating under the auspices of the Department. From
1990 to 1994 she worked as a rehabilitation teacher, providing services for blind
residents of Missouri. She received exemplary evaluations from her supervisors.

In 1994, Floyd applied to be supervisor of RSB’s North St. Louis office.
Initially, she and four others were interviewed for the position. Floyd received the
highest rating among these applicants, but the Department determined that a more
qualified applicant pool should be developed. As a result, three additional candidates
were recruited to apply. Floyd and two candidates from the second group were
selected for a final interview.

This interview consisted of an oral presentation by each candidate. It was
evaluated by Dave Vogel, deputy director of RSB, Charles Voelker, a field supervisor,

1
The Honorable David D. Noce, United States Magistrate Judge for the Eastern
District of Missouri, who presided over the case by consent of the parties pursuant to
28 U.S.C. § 636(c).

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Sondra Larson, assistant deputy director of the department, and Gary Wunder, a
representative of the National Federation of the Blind (NFB), a consumer group
advocating the interests of its blind members. Following the presentations, Larson
recommended that Floyd be offered the position. Voelker recommended that the
position be offered to Mark Laird, another candidate. The final hiring decision was to
be made by Vogel. After considering Wunder’s views and the views of a
representative of the Missouri Council for the Blind (MCB), a second consumer group,
Vogel decided to make an informal job offer to Laird.

Laird did not accept the position. Instead of making an offer to Floyd or the
remaining candidate, the Department decided to seek other applicants. Floyd received
a letter stating, without elaboration, that she had not been selected for the position. On
November 21, 1994, Floyd filed an internal grievance against the Department, alleging
that the position was offered to a “less qualified white Christian male,” referring to
Laird. Appellant’s Br. at 5. Floyd resigned in September of 1995 after accepting a
position with Nebraska Services for the Visually Impaired.

Floyd filed this suit in August of 1996, alleging discrimination based on
disability, national origin, and religion. She also alleged a claim under the MHRA
based upon retaliatory conduct and a claim under 42 U.S.C. § 1983, alleging a violation
of due process and equal protection, together with a claim of unlawful discrimination.

After receiving defendants’ motion for summary judgment, Floyd moved to
amend her complaint to include a claim for violation of her First Amendment right to
free association. The district court denied Floyd’s request to amend and entered
summary judgment in favor of the defendants.

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 II.

We review the district court’s grant of summary judgment de novo, applying the
same standard that was applied by the district court. See Hossaini v. Western Mo.
Med. Ctr., 140 F.3d 1140, 1142 (8th Cir. 1998). Summary judgment is proper if the
evidence, viewed in the light most favorable to the nonmoving party, demonstrates that
no genuine issue of material fact exists and the moving party is entitled to judgment as
a matter of law. See id.; Fed. R. Civ. P. 56(c).

A.

We assess Floyd’s discrimination claims under the familiar burden shifting
framework described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). See Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1134-35 (8th Cir. 1999) (en
banc), petition for cert. filed, 67 U.S.L.W. 3758 (U.S. June 2, 1999) (No. 98-1938)
(disability under ADA); Ghane v. West, 148 F.3d 979, 981 (8th Cir. 1998) (national
origin); Tart v. Hill Behan Lumber Co., 31 F.3d 668, 671 (8th Cir. 1994) (Title VII and
MHRA); Richmond v. Board of Regents of the Univ. of Minn., 957 F.2d 595, 598 (8th
Cir. 1992) (section 1983); Mann v. Milgram Food Stores, Inc., 730 F.2d 1186, 1188
(8th Cir. 1984) (religion).

Initially, Floyd must establish a prima facie case of discrimination. See Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). The burden
then shifts to the Department “to articulate some legitimate, nondiscriminatory reason
for the employee’s rejection.” McDonnell Douglas, 411 U.S. at 802. If the
Department satisfies its burden of production, Floyd must show that the proffered
reason is pretextual. See Burdine, 450 U.S. at 253. At all times the ultimate burden
of persuasion remains with Floyd. See Rothmeier v. Investment Advisors, Inc., 85 F.3d
1328, 1332 (8th Cir. 1996).

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 Because the Department concedes that Floyd met her burden to establish a prima
facie case of discrimination, we first consider whether the Department articulated a
nondiscriminatory reason for failing to promote Floyd. See, e.g., id. at 1332. The
Department presented three nondiscriminatory reasons for denying Floyd the
promotion: she tended to take matters outside of the department if she did not like the
decision regarding a particular case; she did not display a willingness or ability to
effectively manage the staff; and the MCB was strongly opposed to her appointment
to the supervisory position. The burden to articulate a nondiscriminatory justification
is not onerous, and the explanation need not be demonstrated by a preponderance of
the evidence. See Buchholz v. Rockwell Intern. Corp., 120 F.3d 146, 150 (8th Cir.
1997); Hayes v. Invesco, Inc., 907 F.2d 853, 855 (8th Cir. 1990). We conclude that
these explanations satisfy the defendants’ burden under step two of the McDonnell
Douglas framework.

Floyd claims that these reasons were pretextual because the evidence clearly
shows that she was the most qualified candidate. She notes that she was the only
candidate with a master’s degree and the only candidate that was a Certified
Rehabilitation Specialist. Her reliance on these facts is misplaced, however. The
Department did not argue that Floyd was not qualified for the job, only that she was not
the right person for the job in view of her lack of the leadership skills needed to be
effective in the position. Likewise, that Floyd received the highest interview score of
any first-round candidate does not establish that she was the most qualified person for
the job following a complete assessment.

We do not “weigh the wisdom of any particular employment decision.” Ruby
v. Springfield R-12 Pub. Sch. Dist., 76 F.3d 909, 912 n.7 (8th Cir. 1996). Presumably,
all three candidates that were invited to the second stage interview were qualified
individuals. Thus, the first-round interview scores and prior performance ratings were
not critical to the ultimate decision made by the Department when evaluating the three
candidates at the second interview stage. See Hutson v. McDonnell Douglas Corp.,

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63 F.3d 771, 779 (8th Cir. 1995) (finding that high performance ratings were
unconvincing circumstantial evidence of discrimination in second stage of reduction in
force, because all employees could be considered competent). This evidence, without
more, is insufficient to allow a reasonable jury to find that the Department’s articulated
reasons were pretextual.

As further evidence of pretext, Floyd alleges that RSB deviated from the
Department’s policies for selecting candidates. An employer’s failure to follow its own
policies may support an inference of pretext. See Young v. Warner-Jenkinson Co., 152
F.3d 1018, 1024 & n.6 (8th Cir. 1998). In this case, however, the record indicates that
the departures in policy affected all candidates, not only Floyd. Thus, they do not
support an inference of pretext. See Chock v. Northwest Airlines, Inc., 113 F.3d 861,
864-65 (8th Cir 1997) (affirming summary judgment for employer when evidence
indicated deviation in policy was applied to plaintiff as well as other employees).
Moreover, RSB implemented the procedural changes in response to growing pressure
from consumer organizations regarding its operations. See Brousard-Norcross v.
Augustana College Ass’n, 935 F.2d 974, 976-77 (8th Cir. 1991) (stating that departure
from policy did not support inference of pretext when departure was driven by student
complaint).

Even if we agreed with Floyd that the Department did not give its true reasons
for failing to promote her, summary judgment would not be precluded. See Rothmeier,
85 F.3d at 1335. In order to survive summary judgment, Floyd must show that the
Department’s proffered reasons for the decision were a pretext for discrimination. See
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993); Rothmeier, 85 F.3d at 1334.
“[A] reason cannot be proved to be a ‘pretext for discrimination’ unless it is shown
both that the reason was false, and that discrimination was the real reason.” Hicks, 509
U.S. at 515; see also Hill v. St. Louis Univ., 123 F.3d 1114, 1119-20 (8th Cir. 1997)
(affirming grant of summary judgment in favor of employer where plaintiff’s evidence
failed to raise an inference of discriminatory intent).

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 The only evidence of discriminatory motive presented by Floyd was that one co-
worker called her “Fatso”2 and others played Christmas music and referred to a
December party as a “Christmas party” rather than a “holiday party.” Each of these
allegations, however, fails to show the required discriminatory animus. The term
“Fatso,” even if it is related to Floyd’s national origin or religion, was uttered by an
employee who was a nondecisionmaker. Therefore, it is insufficient as a matter of law
to support a reasonable inference of pretext. See Ghane, 148 F.3d at 982 (finding that
derogatory remarks made by nondecisionmaker and with no connection to adverse
employment decision were insufficient to support reasonable inference of pretext);
Hutson, 63 F.3d at 779 (stating that remarks made outside the decisionmaking process
are not enough to support a finding of pretext).

Likewise, the Christian religious customs were practiced by nondecisionmakers
and were unrelated to the decisionmaking process. See, e.g., Ghane, 148 F.3d at 982.
Moreover, these events occurred in 1995, after Floyd filed the initial complaint. Thus,
even if the existence of Christian references were held to constitute the basis for an
inference of discrimination, a question that we need not decide, they were not evidence
sufficient to survive summary judgment because they were not temporally linked to the
decision making process. See Simmons v. Ocè-USA, Inc., 174 F.3d 913, 916 (8th Cir.
1999) (finding events two years prior to adverse employment decision would not
support an inference of discrimination). Accordingly, because Floyd has not shown
sufficient evidence of discrimination based on religion, disability, or national origin,
summary judgment was proper on these claims. See id. at 916 (citing Walton v.
McDonnell Douglas Corp., 167 F.3d 423, 426 (8th Cir. 1999)).

2
Floyd was known as “Fatosh” at RSB, “Fatso” apparently being a derivation
thereof.

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 B.

The MHRA prohibits any retaliatory act against an employee for participation
in an investigation, hearing, or proceeding involving a charge of discrimination. See
Cross v. Cleaver, 142 F.3d 1059, 1075 (8th Cir. 1998) (quoting Mo. Rev. Stat. §
213.070(2)). To establish a prima facie case of retaliation Floyd must establish that she
complained of discrimination, that the Department took adverse action against her, and
that the adverse action was causally linked to the complaint of discrimination. See
Kiel, 169 F.3d at 1136 (citations omitted).

There is no dispute that Floyd complained of discrimination. She argues that
after she filed the complaint, the Department removed cases from her workload.
Nothing in the record, however, indicates that this action resulted in a demotion or
salary change. Although her job duties changed, there is no evidence supporting an
inference that this change constituted an adverse employment action. “[N]ot everything
that makes an employee unhappy is an actionable adverse action.” Montandon v.
Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997) (quoting Smart v. Ball State
Univ., 89 F.3d 437, 441 (7th Cir. 1996)).

Floyd also claims that she became the subject of a baseless investigation. The
catalyst for the investigation, however, was a client complaint alleging that Floyd and
another department employee had engaged in a biased assessment of the client’s
situation. After Floyd left employment with RSB, the investigation continued,
eventually resulting in the reprimand of the other employee. The continuation of the
investigation after Floyd left RSB indicates that there was no causal connection
between the investigation and Floyd’s complaint. See Scusa v. Nestle USA Co., No.
98-2866, slip op. at 17 (8th Cir. June 23, 1999) (stating plaintiff is required to produce
evidence that adverse employment action is causally related to protected activity).

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 Floyd also attempts to link the behavior of her coworkers with a retaliatory
motive, stating that following her complaint she was treated as a “pariah,” or an
outsider. Appellant’s Appx. at 00552-53. Despite a change in the general tone of the
workplace, Floyd did not identify any reduction in her title, salary, or benefits. Thus,
she cannot show an adverse employment action. See Scusa, slip op. at 17-19 (citing
Manning v. Metropolitan Life Ins. Co., 127 F.3d 686, 692 (8th Cir. 1997) (finding
hostility by coworkers was not adverse employment action)). Furthermore, she has
offered no evidence that any actions by her coworkers were causally related to her
complaint. See Scusa, slip op. at 19-20.

III.

Floyd argues that the district court erred by denying her leave to amend her
complaint to include a charge of discrimination based on her First Amendment right to
free association. Specifically, Floyd claims that she was denied the promotion because
of her membership in the NFB. We review the district court’s denial of leave to amend
for an abuse of discretion. See Ferguson v. Cape Girardeau County, 88 F.3d 647, 651
(8th Cir.1996) (citing Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321,
330 (1971)). “Although amendment of a complaint should be allowed liberally to
ensure that a case is decided on its merits, . . . there is no absolute right to amend.”
Ferguson, 88 F.3d at 650-51 (internal citations omitted).

Here, the original complaint was filed on July 25, 1996. Defendants filed their
motion for summary judgment on August 29, 1997. It was not until April 14, 1998, that
Floyd moved to amend her complaint to include the free association claim.

Floyd contends that she was unaware of a potential free association claim until
defendants filed their motion for summary judgment. The district court noted, however,
that Floyd had considered as early as November of 1994 the possibility that her
relationship with the NFB may have been a factor in her termination. See Floyd v.

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Department of Soc. Servs., No. 4:96 CV 1495 DDN, slip op. at 20 (E.D. Mo.
September 30, 1998) (citation omitted); Appellant’s Appx. at 00156. Moreover, seven
and one-half months elapsed between the defendants’ motion for summary judgment
and Floyd’s motion to amend the complaint. Although Floyd attempts to explain this
delay by a change in her counsel during this period,3 we cannot say that the district
court abused its discretion in denying her motion to amend. See Ferguson, 88 F.3d at
651 (stating motion to amend properly denied when made after undue delay) (citing
Foman v. Davis, 371 U.S. 178, 182 (1962)).

Because we conclude that Floyd has not produced evidence sufficient to survive
summary judgment on any of her discrimination claims, we need not consider her
remaining issues.

The judgment is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

3
Current counsel entered their appearance on December 29, 1997.

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