United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1674
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Dianna L. Helton, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
Southland Racing Corporation, *
* [PUBLISHED]
Appellee. *
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Submitted: December 15, 2009
Filed: April 5, 2010
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Before LOKEN, Chief Judge1, ARNOLD, and BENTON, Circuit Judges.
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PER CURIAM.
Dianna L. Helton sued her former employer, Southland Racing Corporation, for
employment discrimination and retaliation under Title VII of the Civil Rights Act of
1964, see 42 U.S.C. §§ 2000e-2(a), 2000e-3(a), and the Arkansas Civil Rights Act
1
The Honorable James B. Loken stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2010. He has been succeeded by the Honorable William Jay Riley.
(ACRA), see Ark. Code Ann. §§ 16-123-107, 16-123-108. The district court2 granted
summary judgment to Southland. Ms. Helton appeals. This court affirms.
I.
Ms. Helton, who is white, claimed that Southland subjected her to a hostile
work environment and constructively discharged her because of her race and retaliated
against her. On this summary-judgment appeal, this court views the evidence and all
inferences from it favorably to Ms. Helton. Anda v. Wickes Furniture Co., 517 F.3d
526, 531 (8th Cir. 2008).
Southland began as a dog-racing track, later started offering simulcast dog and
horse racing, and added gaming (such as video poker) shortly before it hired
Ms. Helton as a money room clerk. Southland promoted her to an assistant cage
manager seven months later at the same time that it hired a second assistant cage
manager, Barbara Van Laan, who is also white. Soon thereafter, Southland added a
third and final assistant cage manager, Darlene Dumas, an African-American. Up to
30 Southland employees worked in the cage, which acts as a bank where customers
purchase and cash-in their gambling chips. The cage manager supervised the
assistants, and the controller, in turn, supervised the cage manager.
Southland hired Melissa Partee as the controller approximately a year after it
hired Ms. Helton. When the cage manager resigned, Ms. Partee appointed Ms. Helton
as acting cage manager. About once a week, Ms. Partee sent her a demeaning or
condescending email; the emails usually criticized her work and intimated that she
was incompetent. When Ms. Helton became acting cage manager, Mike Corbin, a
vice president at Delaware North Companies (Southland's parent company) and
2
The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
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Ms. Partee's supervisor, told Ms. Helton that she should contact him directly any time
there was a problem in the cage. She called him shortly afterward to tell him that
Ms. Partee was critical of everything that she and the other employees were doing and
was micro-managing the cage. He said that he would be coming to Southland shortly
and would talk to Ms. Partee; he assured Ms. Helton that he would tell Ms. Partee
nothing about their conversation. After Mr. Corbin's visit, Ms. Partee's behavior
improved for a while. But Ms. Helton believed that Ms. Partee had somehow learned
about her telephone conversation with Mr. Corbin, because Ms. Partee resumed
speaking to her in a demeaning way a couple of weeks later.
Ms. Helton applied for the permanent cage manager position when it was posted
but Southland hired Shondail Beech, who was white. Ms. Beech had worked in
gaming for 15 years and Ms. Helton did not have gaming experience. After Ms. Beech
was hired, Southland's general manager assured Ms. Helton that she had been "close"
to being hired for the job and that he would ask Ms. Beech to "take [Ms. Helton] under
her wing" to train her for that position when it was next available. Ms. Helton
believed that Ms. Partee had tried unsuccessfully to place an African-American in the
position and had contacted upper management to prevent Ms. Helton from becoming
the cage manager in retaliation for her speaking with Mr. Corbin.
Shortly after Ms. Beech became the cage manager, Ms. Partee called a meeting
with her and the assistant cage managers. During the meeting, Ms. Helton asked to
have some day shifts, explaining that the previous cage manager had promised her the
shifts before she resigned. Ms. Partee refused, announcing that all three assistants
would keep the shifts that they were hired to perform. Because the new general
manager had directed employees to follow the chain of command when a problem
arose, Ms. Helton went to see Ms. Beech after the meeting. She told Ms. Beech that
Ms. Partee "hate[d] white people" and that she was discriminating by allowing
Ms. Dumas to keep the day shifts. Ms. Beech, who set the schedule, responded that
she would "work on it" now that she knew that Ms. Helton had been promised the
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shifts. When Ms. Helton left the meeting, Ms. Partee was standing right outside the
door and was listening to the conversation. Two weeks later, Ms. Helton got the shifts
that she had requested.
Ms. Helton had no further difficulties with Ms. Partee until one of the cashiers
whom Ms. Helton supervised came up $500 short at the end of her shift. Because
Southland dealt in large sums of money, it carefully monitored any discrepancy. If
missing funds could not be accounted for, the employee in charge of the cash drawer
had to reimburse Southland. Even small discrepancies, which were not unusual, were
investigated; a $500 loss was rare. On the day that the shortage occurred, a security
guard had asked Ms. Helton to get a package of gum for him from the cashier's drawer
while the cashier was gone. As cashiers were prohibited from having gum in their
cubicles, Ms. Helton angrily removed the package of gum from the cash drawer and
gave it to the guard. When she reported the missing funds to Ms. Beech and Ms.
Partee, Ms. Helton also told them about having removed the gum. Ms. Helton was
questioned, but a videotape from one of Southland's many surveillance cameras made
it plain that Ms. Helton had done nothing wrong. The cashier, who was
African-American, was eventually terminated.
Ms. Partee met with Ms. Helton after she was exonerated. Ms. Helton
described the meeting as a good one, but she thought that it was unfair for Ms. Partee
to tell her that she would be written up if she went into one of the cashier's drawers
again. Ms. Helton believed that she was permitted to do so as an assistant cage
manager. Ms. Partee also cautioned her that she should be more careful next time
"because it could have been a setup."
Ms. Helton came to work a few days later with no thought of quitting her job.
She expected to be at Southland in the future and enjoyed her work. Around noon,
she received a call from her sister, who also worked at Southland. Her sister said that
she had heard from a co-worker, who had heard from another employee, that there had
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been a meeting the night before during which Ms. Partee "was trying to implicate [Ms.
Helton] in theft" of the $500, even though she was aware that Ms. Helton had been
exonerated. She called her husband and talked about what had happened. About two
hours after her sister called, Ms. Helton submitted a letter of resignation that said that
she had enjoyed working for Southland. She testified that she was aware of what
people could do if they wanted to set someone up for a crime. Though she was not
concerned about the incident involving the missing money because of the videotape,
she knew that Ms. Partee had tools at her disposal, such as computerized records, to
use to set her up in the future. After Ms. Helton left, Ms. Partee told another
employee that because Ms. Helton had resigned, she must have taken the money.
II.
We first address Ms. Helton's claim that Ms. Partee, subjected her to a hostile
work environment because she was white. "When the workplace is permeated with
discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive
to alter the conditions of the victim's employment and create an abusive working
environment, Title VII is violated." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993). To make out a claim based on a hostile work environment, a plaintiff must
present evidence of a working environment "that a reasonable person would find
hostile or abusive, and one that the victim in fact did perceive to be so." Faragher v.
City of Boca Raton, 524 U.S. 775, 787 (1998).
To determine whether racial harassment or discrimination is sufficiently severe
or pervasive to be actionable, we must consider all of the circumstances, including the
frequency and severity of the discriminatory conduct; " 'whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance.' " Woodland v. Joseph T. Ryerson
& Son, Inc., 302 F.3d 839, 843 (8th Cir. 2002) (quoting Harris, 510 U.S. at 21-23).
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While Southland asserts that the record will not support a finding that
Ms. Partee's remarks to Ms. Helton were racially based, this court need not reach that
issue here because, regardless of Ms. Partee's motivation, we conclude that the
harassment that Ms. Helton suffered was not severe or pervasive enough to affect a
term, condition, or privilege of her employment. See Elnashar v. Speedway
SuperAmerica, LLC, 484 F.3d 1046, 1058 (8th Cir. 2007).
The alleged verbal harassment in this case was neither frequent nor severe. Ms.
Helton said that Ms. Partee sent her demeaning or condescending emails about once
a week during the two months that Ms. Helton was acting cage manager; Ms. Partee
primarily communicated by email. Ms. Partee sent fewer emails after Ms. Beech was
hired and she was no longer Ms. Helton's immediate supervisor. Ms. Helton
remembered little of the emails' content and what she did remember was not
particularly remarkable: Ms. Helton objected to Ms. Partee copying the assistant cage
managers on an email that she sent to Ms. Helton reprimanding her for failing to send
Ms. Partee information about the assistant managers. Ms. Helton vaguely
remembered another email that had offended her; although she did not remember the
topic, she recalled that Ms. Partee criticized her for something that Ms. Helton
considered "petty."
Ms. Helton had two or three conversations with Ms. Partee each week, and
Ms. Helton testified that "[m]ost of those were fine," although "there were a couple
of times she got out of line yelling and screaming at me." On one occasion,
Ms. Partee called Ms. Helton to her office, spoke calmly about everyday work matters,
and then suddenly began shouting and accusing Ms. Helton of telling people that Ms.
Partee had caused one or two members of the four-person drop-team to take medical
leave. (The drop team was responsible for removing the gaming machines' "drop
cans," which held large sums of money; the loss of drop-team members could cause
a crisis because Southland had to conduct lengthy background checks before hiring
replacements.) Ms. Helton denied the accusation, suggesting that Ms. Partee herself
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had told people since she had previously told Ms. Helton how she caused a member
of the drop-team to cry (and laughed while telling her the story). When counsel asked
if there were other incidents, Ms. Helton described Ms. Partee's remark at a managers'
meeting during an exercise where they were naming animals that they identified with.
After Ms. Helton's turn, the general manager commented that he saw Ms. Helton as
a tiger and Ms. Partee described her as a peacock. Ms. Helton took offense, believing
Ms. Partee meant that she was "showy." She could not recall any other specific
written or oral statements by Ms. Partee that were hostile or condescending, though
she remembered Ms. Partee saying that several white employees' heads were "on the
chopping board."
Ms. Helton admitted that she was never physically threatened, that her job was
never threatened, and that she was never written up or disciplined as part of the
alleged harassment. She complains that she was not hired as a cage manager, but
hiring another white person with significantly more experience cannot support a claim
that Ms. Helton was subjected to a hostile environment because she is white.
Likewise, Ms. Partee's denial of Ms. Helton’s request for day shifts, which Ms. Beech
almost immediately reversed, is not a circumstance that is actionable. Although Ms.
Partee's conduct might well have been rude and demeaning at times, Title VII does not
"create a federal remedy for all offensive language and conduct in the workplace."
Joens v. John Morrell & Co., 354 F.3d 938, 941 (8th Cir. 2004). In sum, the evidence
does not show that Ms. Helton's workplace was "permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter" her
conditions of employment, and thus Ms. Helton did not make out a hostile
environment claim. Harris, 510 U.S. at 21.
III.
Ms. Helton also failed to offer sufficient evidence that she was constructively
discharged. As the Supreme Court explained in Pennsylvania State Police v. Suders,
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542 U.S. 129, 147 (2004), a "hostile-environment constructive discharge claim entails
something more" than is necessary for a claim of a hostile working environment: The
plaintiff "must show working conditions so intolerable that a reasonable person would
have felt compelled to resign." Id.
As noted, Ms. Helton's evidence failed to show that she was subjected to a
hostile environment, and so it necessarily follows that she cannot show "something
more." She simply did not demonstrate that her working conditions were objectively
intolerable. Apparently she did not think that her job was intolerable two hours before
she resigned: She testified that she had no thought of quitting when she came to work
that day and planned to have a future at Southland. But she "snapped" (her word)
when her sister told her that she had heard that Ms. Partee had told others that Ms.
Helton was a suspect in the missing funds matter. After hearing this, Ms. Helton took
no steps to investigate whether it was true that Ms. Partee said that, and she did not
fear being blamed for the lost funds when she quit. She testified that she resigned
because she was afraid that Ms. Partee would damage her reputation by "setting her
up" to be blamed for something in the future. She therefore was in no imminent
danger that made staying intolerable. Thus, the evidence fails to support a finding that
Ms. Helton's working environment would have compelled a reasonable person to quit
her job.
IV.
To make out a prima facie retaliation case under Title VII, Ms. Helton had to
show that she engaged in protected conduct by opposing a practice that a reasonable
person could believe violated that title, see 42 U.S.C. § 2000e-3(a); Barker v. Missouri
Dep't of Corrs., 513 F.3d 831, 835 (8th Cir. 2008); that a materially adverse action
was taken against her, see Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S.
53, 60, 68 (2006); and, that there was a causal connection between the protected
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conduct and the adverse action. Betz v. Chertoff, 578 F.3d 929, 937 (8th Cir. 2009)
cert. denied, 2010 WL 390388 (U.S. Mar. 22, 2010).
In her brief to this court, Ms. Helton states as an issue that the facts establish
a prima facie case for retaliation. She states that she engaged in the statutorily
protected conduct of reporting Ms. Partee’s racial discrimination to superiors, citing
two instances.
First, she contends that Ms. Partee retaliated against her for the phone call that
she made to Mr. Corbin. Because she acknowledged that she said nothing in that call
about race discrimination, her conversation was not protected conduct under Title VII,
and so any action taken in response to the conversation cannot be actionable under
Title VII.
Second, Ms. Helton maintains that Ms. Partee retaliated against her because she
told Ms. Beech that Ms. Partee hated white people and that Ms. Partee had
discriminated against her by allowing Ms. Dumas, an African American with less
seniority, to keep the day shifts that Ms. Helton had been promised. Ms. Helton’s
conversation with Ms. Beech was protected conduct (Ms. Partee, standing outside the
door while they talked, heard the conversation).
As for the “materially adverse action” taken against her, Ms. Helton points to
“a working environment that was so unbearable, appellant was forced to quit as a
result of Partee’s actions against her.” (Appellant’s Brief, p. 40.) Ms. Helton
concludes, “Therefore, Appellant suffered material adverse employment action when
she was constructively discharged.” (Id., p. 41.)
Ms. Helton’s brief is clear that she claims that defendant retaliated against her
only in the form of constructive discharge. She does not argue on appeal that any
incident is a discrete, cognizable incident of unlawful retaliation, and this court will
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not take up that argument sua sponte.3 See Fischer v. Avanade, Inc., 519 F. 3d 393,
408 n.7 (7th Cir. 2008). Because Ms. Helton claims only the materially adverse action
of a constructive discharge, and because this court has held that she failed to offer
sufficient evidence of a constructive discharge, she has not demonstrated a materially
adverse action against her. See Brenneman v. Famous Dave’s of Am., Inc., 507 F. 3d
1139, 1146 (8th Cir. 2007); Betz, 578 F.3d at 938. Her retaliation claim fails.
V.
Ms. Helton made the same claims under the ACRA and Title VII, but she cites
only federal cases on appeal and does not argue that state law provides her any rights
that she does not have under Title VII. Moreover, the Arkansas Supreme Court looks
to interpretations of Title VII as persuasive authority for interpreting the ACRA. See
Island v. Buena Vista Resort, 352 Ark. 548, 556-57, 103 S.W.3d 671, 675-76 (2003);
see also Ark. Code § 16-123-105(c); Crone v. United Parcel Service, Inc., 301 F.3d
942, 945 (8th Cir. 2002). The district court's judgment rejecting the state law claims
is also affirmed.
VI.
The judgment of the district court is affirmed.
3
Before the district court, Ms. Helton’s retaliation claims were confusing. For
example, she admitted she “was not concerned about being implicated for Pace’s cash
shortage” but rather worried “about being set-up for termination at some down the
road.” However, her complaint, response to the summary-judgment motion, and brief
to the district court consistently cite her constructive discharge as the only materially
adverse action against her.
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ARNOLD, Circuit Judge, concurring in part and dissenting in part.
I concur in all of the court's opinion except Part IV, which concludes that
Ms. Helton has not made out a retaliation claim. Because I believe that, fairly
construed, her complaint and the record evidence do indeed support such a claim, I
respectfully dissent.
Ms. Helton maintains that Ms. Partee retaliated against her because she told Ms.
Beech that Ms. Partee hated white people and that Ms. Partee had discriminated
against her by allowing Ms. Dumas, an African American with less seniority, to keep
the day shifts that Ms. Helton had been promised. Ms. Helton's conversation with Ms.
Beech was protected conduct and, as the court notes, Ms. Partee was standing right
outside the door while they talked and she heard the conversation.
Southland argued in its summary judgment motion that Ms. Partee could not
recover because she did not establish that she suffered a "materially adverse
employment action," meaning an action that affected employment or altered
workplace conditions. The district court agreed with Southland's view of the
applicable legal standard and granted summary judgment based on it. See Gilooly v.
Missouri Dep't of Health & Senior Servs., 421 F.3d 734, 739 (8th Cir. 2005). But this
was error under Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 60,
68 (2006), which held that a plaintiff in a Title VII retaliation claim need only show
that he or she was subjected to an action that was materially adverse, "which in this
context means it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination." Id. (internal quotation marks and citations
omitted); Littleton v. Pilot Travel Ctrs., LLC , 568 F.3d 641, 644 (8th Cir. 2009).
I note that Ms. Helton quoted the relevant language from Burlington in her summary
judgment response.
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Though I agree that Ms. Helton did not show that she suffered an adverse
employment action, I think that she presented sufficient evidence of a materially
adverse action to survive summary judgment. In her complaint, Ms. Helton alleged
that Ms. Partee retaliated for her statements to Ms. Beech by falsely accusing her of
theft and she produced evidence of those accusations in her opposition to the motion
for summary judgment. Although much of this evidence is hearsay, Ms. Helton
provided an affidavit of a co-worker, Marcia Montgomery, that sets out testimony
admissible at trial: Ms. Montgomery attested that after Ms. Helton resigned,
Ms. Partee told her that Ms. Helton "must have taken the money from the cage or she
would not have quit" and that "someone in surveillance had told her" (Ms. Partee) that
Ms. Helton "took the money." Ms. Montgomery thus presents a first-hand account of
what Ms. Partee said, which is admissible as a statement of a party opponent. Besides,
the statement is not offered for its truth. Title VII prohibits post-employment
retaliation, Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997), and I think that Ms.
Partee's false charge of theft "could well dissuade a reasonable worker" from making
a discrimination charge because such an accusation is highly defamatory, see
Burlington, 548 U.S. at 57.
Because I believe that the district court erroneously granted summary judgment
on this element of Ms. Helton's prima facie case, I would reverse the judgment in
favor of Southland on her retaliation claim based on Title VII.
I therefore respectfully dissent.
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