Jane A.T. Turner v. John Ashcroft

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3426
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Jane A. T. Turner, *
*
Appellant, *
*
v. *
* Appeal from the United States
1
Alberto Gonzales, United States * District Court for the
Attorney General; Federal Bureau * District of Minnesota.
of Investigation; United States *
Department of Justice; Robert S. *
Mueller, Director, Federal Bureau *
of Investigation, *
*
Appellees. *

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Submitted: June 24, 2005
Filed: August 30, 2005
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Before MELLOY, HEANEY, and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.1

Jane Turner appeals an adverse grant of summary judgment on her claims of
gender discrimination, hostile work environment and retaliation under Title VII of the
Civil Rights Act, 42 U.S.C. § 2000e et seq. We affirm the grant of summary
judgment with respect to Turner’s gender discrimination and hostile work
environment claims. However, we reverse the grant of summary judgment on the
retaliation claim and remand for further proceedings consistent with this opinion.

I. BACKGROUND

Turner was a long-time FBI Special Agent with commendations for her work
on high-profile cases. From 1978 until 1998, she consistently earned performance
ratings of “Superior” or “Exceptional.” She was stationed at the Minot, North Dakota
Resident Agency of the Minneapolis Division of the FBI during the events that led
to this discrimination suit. She became the Senior Resident Agent (SRA) at Minot
in 1987. The SRA is the top-ranking agent at a station that has no official supervisor.
The parties dispute the degree of supervisory authority an SRA has over the other
agents at the station.

In 1996, Turner was denied a supervisory position in Fargo, North Dakota.
The position went to a male, Craig Welken, who became Turner’s supervisor. Turner
believed that gender discrimination played a role in the denial. However, Turner did
not file an Equal Employment Opportunity (EEO) complaint about this incident.

In 1998, Turner began to complain that Welken was not properly crediting her
with “statistics” for the cases she worked. “Statistics” are used by the FBI to evaluate

1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Alberto Gonzales
is substituted automatically for his predecessor, John Ashcroft, as respondent.
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worthiness for promotions and performance-based salary increases, known as “quality
step increases.” Turner also complained that she received lower mileage
reimbursements than the male agents. Turner alleged that the other agents in Minot,
who were all males, did not respect her and refused to follow her orders. When these
other agents questioned Welken about Turner’s authority as an SRA to control their
activities, however, Welken informed them that he was their official supervisor and
the sole assigner of work. One veteran male agent told a newer agent that an SRA’s
duties were to “order supplies.” Turner believed the other agents felt that she, as a
woman, was only fit to do secretarial work. Turner filed an EEO complaint about this
perceived gender discrimination in June 1998.

One month later, in July 1998, Welken assigned an agent with much less
experience than Turner to the Froistad case, a high-profile case involving the sexual
exploitation and murder of a five-year-old. The United States Attorney for the
District of North Dakota, John Schneider, asked Welken to assign Turner instead
because of her expertise in child crimes. Welken complied with the request. Turner
obtained a confession from Froistad, and in October 1998 Schneider sent an e-mail
giving Turner primary credit for the successful resolution of the case.

In her next performance review, in April 1999, Turner again received a
“Superior” rating. However, Turner objected to the review because she felt it did not
properly credit her work on the Froistad case or on other cases. Turner met with
Welken on June 11, 1999 to discuss the performance review. According to Turner,
Welken informed her that he would not give her credit because she “poached” the
case and “sandbagged” him with Schneider.

On June 18, Turner wrote a memorandum to Welken’s supervisor, Minneapolis
Division Special-Agent-in-Charge James Burrus, stating her complaints about the
performance review and Welken’s response. She also stated that Welken’s
discriminatory treatment of her had increased since her initial EEO complaint. She

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asked that the memorandum be made part of her personnel file. Burrus responded on
June 22 that her complaints would be forwarded to Welken.

On June 23, Welken downgraded Turner’s performance rating from “Superior”
to “Minimally Acceptable/Unacceptable.” The new, unscheduled interim
performance review purported to cover Turner’s work from late March through mid-
June 1999 and cited the following reasons for the downgraded performance rating:
failure to conduct investigative work in a timely manner, failure to properly notify
other law enforcement officials about weekend unavailability, delayed report and time
sheet filing, poorly written reports and minimal contacts with sources.

Welken began to document problems with Turner’s work over the following
months. In September and October 1999, Welken noted that one of Turner’s reports
showed she made inappropriate comments to a state’s attorney on one case and that
three Native American reservation police officials complained about Turner being
difficult to work with on another case. However, the state’s attorney immediately
wrote a letter to the FBI saying Turner’s behavior was not unprofessional, and the
reservation police chief later stated in deposition testimony that Turner always
worked well with the reservation police and the incident was a minor one that would
normally be worked out among the participants without complaint. Nevertheless,
Turner continued to receive poor performance ratings.

New Minneapolis Division Special-Agent-in-Charge Doug Domin met with
Turner in September 1999 and found her to be a “very troubled agent.” According
to Domin, Turner admitted that she was taking antidepressants but was not under a
doctor’s care. She displayed a range of extreme emotions and showed Domin
photographs of abused child victims from her cases. Domin informed her that he
would personally review her work over the following 60 days.

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 The FBI Inspection Division conducted a routine investigation of the
Minneapolis Division, including the Minot office, in October 1999. The report
recited the problems previously mentioned with Turner and also cited procedural
errors that Turner allegedly had made during the Froistad and Vigestad investigations.
The report concluded that Turner should be transferred to a work site that allowed
more direct supervision and also recommended a Fitness for Duty Evaluation.
Although the FBI claims that the report was based on independent interviews with
FBI agents and outside law enforcement officials who worked with Turner, Turner
argues that the investigator merely restated inaccurate information about her gleaned
from Welken and Domin. Turner presented statements from local law enforcement
and prosecutorial personnel that her work was generally outstanding and showed no
decline during the 1998-99 time period.

Turner received another poor performance rating in December 1999, making
her eligible under FBI regulations for an involuntary transfer. Domin immediately
transferred her to Minneapolis. She filed a second EEO complaint in March 2000.
After the FBI allowed her to exceed the standard 90-day relocation deadline, she
began work in Minneapolis in May 2000. One of Turner’s new co-workers in
Minnesota recalled being warned before her arrival that she was “someone to avoid,
or at least be wary of,” because she was “prone to initiate administrative or civil
action with little provocation.” Turner was assured that the FBI continued to value
her expertise in investigating crimes against children, but she did not receive work
assignments in that area commensurate to those she had received in Minot. During
her time in Minneapolis, Turner’s supervisors documented performance problems and
instances of disruptive behavior. Eventually, the FBI instituted termination
proceedings. Turner resigned in October 2003, before the termination proceedings
could be completed.

Turner filed suit against the FBI, its director, the Department of Justice and the
Attorney General (collectively “the FBI”) under Title VII for sexual discrimination,

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retaliation and hostile work environment based on the events leading up to her
transfer to Minneapolis. The district court granted the FBI’s motion for summary
judgment on all claims. The district court concluded that Turner presented no
evidence of causation to sustain her discrimination and hostile work environment
claims. As for the retaliation claims, the district court concluded that any adverse
actions taken by the FBI were justified by evidence of Turner’s poor performance and
erratic behavior. Turner appeals the grant of summary judgment.

II. DISCUSSION

We review a grant of summary judgment de novo. Hesse v. Avis Rent A Car
Sys., 394 F.3d 624, 629 (8th Cir. 2005). “Summary judgment is appropriate when the
evidence, viewed in the light most favorable to the nonmoving party, presents no
genuine issue of material fact and the moving party is entitled to judgment as a matter
of law.” Id. If a reasonable jury could return a verdict for the non-moving party
based on the evidence presented, summary judgment is inappropriate. Quick v.
Donaldson Co., 90 F.3d 1372, 1377 (8th Cir. 1996). We must affirm the grant of
summary judgment on a claim if any essential element of Turner’s prima facie case
is not supported by specific facts sufficient to raise a genuine issue for trial. Hesse,
394 F.3d at 629.

A. Discrimination

An employee’s claim will survive a motion for summary judgment if the
employee can produce “direct evidence of discrimination, that is, ‘evidence showing
a specific link between the alleged discriminatory animus and the challenged
decision, sufficient to support a finding by a reasonable fact finder that an illegitimate
criterion actually motivated the adverse employment action.’” Russell v. City of
Kansas City, Missouri, 414 F.3d 863, 866 (8th Cir. 2005) (quoting Griffith v. City of
Des Moines, 387 F.3d 733, 736 (8th Cir. 2004)). Alternatively, the claim may survive

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a motion for summary judgment by creating an inference of unlawful discrimination
through the familiar McDonnell Douglas three-step burden-shifting analysis. Russell,
414 F.3d at 866.

In this case, Turner’s only alleged direct evidence of discrimination is one
fellow agent’s remark to another that an SRA’s duties were to “order supplies.” We
view this evidence in the light most favorable to Turner and assume that the remark
evidences discriminatory animus. However, Turner produced no evidence to link this
remark from a co-worker to the challenged employment decisions. Therefore, we
proceed to the McDonnell Douglas burden-shifting analysis.

Under the McDonnell Douglas analysis, the elements of a prima facie
discrimination claim are: 1) the employee belonged to a protected class; 2) she was
qualified to perform her job; 3) she suffered an adverse employment action; and 4)
she was treated differently from similarly situated males. Hesse, 394 F.3d at 631.
The fourth element of a prima facie discrimination case also can be met if the
employee provides “some other evidence that would give rise to an inference of
unlawful discrimination.” Putnam Search Term End v. Unity Health Sys., 348 F.3d
732, 736 (8th Cir. 2003). Once an employee establishes a prima facie case, the
burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for
its actions, and then shifts back to the employee to show that the employer’s reason
was pretextual. Hesse, 394 F.3d at 631.

Turner cannot establish a prima facie case of discrimination because she has
not presented evidence that would give rise to an inference of unlawful
discrimination. She attempts to meet this fourth element of the prima facie burden
by showing that she was treated differently from similarly situated males. This
requires evidence that Turner and her male co-workers “were ‘involved in or accused
of the same or similar conduct and [were] disciplined in different ways.’” Rodgers v.

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U. S. Bank, N.A., No. 04-3000, slip op. at 10-11 (8th Cir. Aug. 11, 2005) (quoting
Wheeler v. Aventis Pharms., 360 F.3d 853, 857 (8th Cir. 2004)).

Turner presented evidence that male agents at her resident office made
mistakes but did not receive downgraded performance reviews like the one Turner
received in June 1999. However, the alleged mistakes were not similar to the conduct
alleged in Turner’s downgraded performance review. According to Turner’s
evidence, one male agent failed to recognize a child’s injuries as an incident of sexual
abuse and another male agent mishandled evidence in a child pornography case.
These isolated investigative mistakes by each male agent are not similar to the pattern
of ignoring internal workplace responsibilities and deadlines cited in Turner’s
downgraded performance review. We conclude that Turner has not established a
prima facie case of discrimination. Accordingly, we affirm the district court’s grant
of summary judgment to the FBI on the discrimination claim.

B. Hostile Work Environment

The elements of a prima facie hostile-work-environment claim are: 1) the
employee is a member of a protected group; 2) she was subject to unwelcome
harassment; 3) there was a causal nexus between the harassment and her membership
in the protected group; 4) the harassment affected a term, condition, or privilege of
employment; and, in a case alleging harassment by non-supervisory employees, 5) the
employer knew or should have known of the harassment and failed to take prompt
and effective remedial action. Carter v. Chrysler Corp., 173 F.3d 693, 700 (8th Cir.
1999). The harassment must be both subjectively offensive to the employee and
objectively offensive such that a reasonable person would consider it to be hostile or
abusive. Williams v. Mo. Dep’t of Mental Health, 407 F.3d 972, 975 (8th Cir. 2005).

To support her hostile work environment claim, Turner again relies on the
statement by a co-worker that an SRA’s duties were to “order supplies.” Turner does

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not argue that she was present when this remark was made. She also contends that
junior male co-workers’ reluctance to take orders from her as an SRA and the initial
assignment of the Froistad case to a less experienced male agent demonstrate a
general lack of respect for her abilities because of her gender. However, Turner has
presented no evidence of specific instances of workplace conduct that a reasonable
person would consider to be hostile or abusive. Therefore, we affirm the district
court’s grant of summary judgment to the FBI on the hostile work environment claim.
See Burkett v. Glickman, 327 F.3d 658, 661 (8th Cir. 2003) (affirming a grant of
summary judgment to an employer on a hostile work environment claim where the
employee’s “only substantial supporting evidence” was the deposition testimony of
a co-worker that a supervisor had occasionally used a disparaging word in front of
other employees and the employee offered no evidence that she was present when
such remarks were made).

C. Retaliation

We apply the McDonnell Douglas analysis to claims of retaliation. Hesse, 394
F.3d at 632. The elements of a prima facie case of retaliatory discrimination are: 1)
the employee engaged in activity protected under Title VII; 2) an adverse
employment action was taken against her; and 3) there was a causal connection
between the two. Id. Once a plaintiff establishes a prima facie case, the burden shifts
to the defendant to articulate a legitimate, nondiscriminatory reason for its actions,
and then shifts back to the plaintiff to show that the defendant’s reason was
pretextual. Id. at 631.

There is no dispute that Turner engaged in protected activity by filing
complaints about sexual discrimination. Turner argues that her performance rating
downgrade, the denial of step increases in salary, and her transfer to Minneapolis all
qualify as adverse employment actions. We examine each of these actions in turn.

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 1. Performance Rating Downgrade and Denial of Step Increases

“A poor performance rating does not in itself constitute an adverse employment
action because it has no tangible effect upon the recipient’s employment.” Spears v.
Mo. Dep’t of Corr. & Human Res., 210 F.3d 850, 854 (8th Cir. 2000). “An
unfavorable evaluation is actionable only where the employer subsequently uses the
evaluation as a basis to detrimentally alter the terms or conditions of the recipient’s
employment.” Id.

Turner contends that the performance rating downgrade detrimentally altered
the terms of her employment by making her ineligible for promotions, for transfers
to positions with greater promotion potential, and for within-grade salary step
increases—both the discretionary “quality step increases” and automatic time-in-
grade step increases. Performance ratings that have a negative impact on promotion
potential do not constitute an adverse employment action unless the rating actually
led to the denial of the promotion. Tademe v. St. Cloud State Univ., 328 F.3d 982,
992 (8th Cir. 2003). Turner made no showing that she would have gotten a
promotion absent the performance rating downgrade. Therefore, the negative impact
on her promotion potential does not render the performance rating downgrade an
adverse employment action. Similarly, a “decision not to raise . . . salary [is] not an
adverse employment action [where] . . . salary [is] not decreased or otherwise
diminished in any way.” Id. Therefore, Turner’s resulting ineligibility for a
discretionary quality step salary increase does not render the performance rating
downgrade an adverse employment action.

Turner’s resulting ineligibility for an automatic step salary increase based on
time in grade, on the other hand, qualifies the performance rating downgrade as an
adverse employment action because it delayed an otherwise automatic salary increase.
No exercise of discretion would have been necessary for Turner’s salary to increase;
it would have happened automatically as long as her performance rating remained at

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“Fully Successful” or higher. In other words, in this case the performance rating
downgrade directly forfeited a non-discretionary salary increase, detrimentally
altering the terms and conditions of Turner’s employment. See Spears, 210 F.3d at
854. Therefore, we find that the performance rating downgrade qualifies as an
adverse employment action.

We also find evidence sufficient to raise a genuine issue of material fact as to
whether Turner’s complaints caused the performance rating downgrade. “A plaintiff
can establish a causal connection between his complaints and an adverse action
through circumstantial evidence, such as the timing of the two events. Generally,
however, a temporal connection alone is not sufficient to establish a causal
connection.” Eliserio v. USW, Local 310, 398 F.3d 1071, 1079 (8th Cir. 2005)
(citation omitted).

In this case, the timing of Turner’s performance rating downgrade strongly
supports an inference of causation. Turner wrote a memorandum to her second-line
supervisor, Burrus, referring to her previous EEO complaint and alleging increased
discriminatory treatment by her supervisor, Welken. Burrus informed Turner that he
would forward the memorandum to Welken, and five days later Welken generated an
“interim” performance review that downgraded Turner in all rated areas. The fact
that it was not a regularly scheduled performance review and occurred less than two
months after the regular annual review in April (in which Turner received a
“Superior” rating) is further circumstantial evidence that the performance rating
downgrade was motivated by Turner’s complaints. Therefore, Turner provided
sufficient evidence to establish a prima facie case for her retaliation claim based on
her performance rating downgrade.

2. Transfer to Minneapolis

“A transfer constitutes an adverse employment action when the transfer results
in a significant change in working conditions or a diminution in the transferred

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employee’s title, salary, or benefits.” Fisher v. Pharmacia & Upjohn, 225 F.3d 915,
919 (8th Cir. 2000). Turner’s title, salary and benefits were not affected by the
transfer to Minnesota. Turner first contends that the necessity to develop new
informants and local law enforcement contacts in Minneapolis was tantamount to
starting her career over again, constituting a significant change in working conditions.
We are not persuaded that the normal inconveniences associated with any transfer,
such as establishing one’s professional connections in a new community, are
sufficient, without more, to demonstrate a significant change in working conditions.
See, e.g., Montandon v. Farmland Indus., 116 F.3d 355, 359 (8th Cir. 1997)
(“However unpalatable the prospect may have been to him, the requirement that [the
employee] move to [a different city] did not rise to the level of an adverse
employment action.”). In contrast, a significant change in working conditions does
occur where there is “a considerable downward shift in skill level required to perform
[the employee’s] new job responsibilities.” Meyers v. Neb. Health & Human Serv.,
324 F.3d 655, 660 (8th Cir. 2003). Turner has presented evidence sufficient to raise
a genuine issue of material fact as to whether the work she was assigned after her
transfer to Minneapolis was a considerable downward shift from her responsibilities
in investigating crimes against children while she was stationed in Minot. Therefore,
we find a genuine issue of material fact as to whether the transfer qualifies as an
adverse employment action.

We also find evidence sufficient to raise a genuine issue of material fact as to
whether Turner’s complaints caused the transfer. Turner’s performance rating
downgrade in June 1999, five days after her letter of complaint, was the first step in
the paper trail required to impose an involuntary transfer on an FBI employee. The
necessary paper trail was completed with Turner’s “Unacceptable” performance
rating in December 1999, and Turner was transferred immediately. A reasonable jury
could infer that Turner’s transfer was a continuation of the same chain of causation

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that arguably linked the performance rating downgrade to Turner’s complaint letter,
as discussed above.

We conclude that Turner presented a prima facie case of retaliation sufficient
to survive summary judgment.

3. Evidence of Justification and Pretext

Because Turner established a prima facie case, the burden shifts to the FBI to
articulate a legitimate, nondiscriminatory reason for its actions, and then shifts back
to Turner to show that the FBI’s reason was pretextual. Hesse, 394 F.3d at 631. The
FBI contends that the performance rating downgrade and transfer to Minneapolis
were justified by Turner’s documented poor performance and disruptive behavior.
We disagree.

The FBI states that Turner’s poor performance justified the June 1999
performance rating downgrade. The performance rating document attributed the
downgrade to failure to conduct investigative work in a timely manner, failure to
properly notify other law enforcement officials about weekend unavailability, delayed
report and time sheet filing, poorly written reports and minimal contacts with sources.
Turner first attempts to rebut this evidence with statements from Assistant United
States Attorneys and law enforcement personnel with whom she had worked closely
for several years that her performance did not in fact decline during the 1998-99 time
frame. However, these individuals would not necessarily be aware of a decline in her
ability to meet internal FBI deadlines and the quality of her internal FBI reporting.
Next, Turner argues that her strong record of positive performance reviews before
June 1999 creates an inference of pretext for the sudden negative review. “Recent
favorable reviews are often used as evidence that the employer’s proffered
explanation for the adverse action had no basis in fact or was not actually important
to the employer.” Smith v. Allen Health Sys., 302 F.3d 827, 834 (8th Cir. 2002). In
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this case, Turner had received a “Superior” rating in her regularly scheduled annual
performance review on April 26, 1999, less than two months before the negative,
unscheduled interim review. This supports an inference that the FBI’s sudden
concerns about internal deadlines and report quality were pretextual.

The FBI also alleges that Turner made mistakes on the Froistad and Vigestad
cases in 1998 and 1999. However, Turner introduced rebuttal evidence from a U.S.
Customs agent who was present with her at the time these mistakes allegedly
occurred. The agent avers that Turner engaged in no questionable or unprofessional
conduct and behaved as “the epitome of an FBI agent” at all times in question. This
raises a genuine issue of material fact as to whether the FBI’s allegations of
misconduct are mere pretext.

Finally, the FBI cites incidents that occurred in September and October 1999,
such as complaints about Turner from local law enforcement and a state’s attorney,
Turner’s emotional behavior in the September meeting with Domin, and the results
of the allegedly independent FBI investigation, as justification for the adverse actions.
First, we note that incidents from September and October 1999 cannot justify the June
1999 performance rating downgrade.2 To the extent that these incidents might justify
the December 1999 decision to transfer Turner, the “independent” investigator
admitted that he interviewed no one who interacted with Turner on a regular basis and
merely accepted without question information provided by her supervisors, each of
whom worked hundreds of miles away from Turner’s location. Federal agents, Native
American reservation law enforcement personnel, and Assistant United States
Attorneys who worked closely with Turner averred that she did not commit the
specific procedural errors alleged in the inspection report, that historically her work

2
The FBI also attempts to rely on incidents that occurred in Minneapolis after
Turner began work there in May 2000. These incidents cannot justify either the June
1999 performance rating downgrade or the December 1999 decision to transfer
Turner.
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was outstanding, and that her performance showed no decline during the 1998-99
time period.

We conclude that Turner produced rebuttal evidence sufficient to raise a
genuine issue of material fact regarding the FBI’s proffered justification for the
adverse employment actions. Therefore, we reverse the district court’s grant of
summary judgment to the FBI on Turner’s retaliation claim.

III. CONCLUSION

We affirm the grant of summary judgment with respect to Turner’s gender
discrimination and hostile work environment claims. We reverse the grant of
summary judgment on the retaliation claim and remand for further proceedings
consistent with this opinion.
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