Wilkie v. Department of Health and Human Services

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 10-1916
___________

Dr. Penny M. Wilkie, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
Department of Health and *
Human Services, *
*
Appellee. *
___________

Submitted: November 15, 2010
Filed: April 27, 2011
___________

Before SMITH, BEAM, and BENTON, Circuit Judges.
___________

SMITH, Circuit Judge.

Dr. Penny M. Wilkie filed suit against the United States Department of Health
and Human Services ("the Department"), alleging, inter alia, that the Department
violated her rights under Title VII of the Civil Rights Act of 1964. Specifically, Dr.
Wilkie asserted that the Department violated her rights to (1) be free of sexual
harassment and gender discrimination; (2) be free of a hostile work environment; (3)
equal treatment in her place of employment; (4) enjoy the rights, privileges, and
protections provided to all employees by the hospital policies, medical-staff bylaws,
and all applicable state and federal laws and regulations; and (5) be free of
recrimination and retaliation in her place of employment as a result of her reporting
others' wrongdoing. The district court1 granted the Department's motion to dismiss
claims involving misconduct that occurred before June 18, 2005, because Dr. Wilkie
failed to exhaust her administrative remedies. Additionally, the district court granted
summary judgment to the Department on Dr. Wilkie's claims for hostile work
environment, constructive discharge, sex discrimination, and retaliation. Dr. Wilkie
appeals, and we now affirm.

I. Background
From December 31, 2000, to March 17, 2006, Dr. Wilkie served as the clinical
director at Quentin Burdick Memorial Health Care Facility ("Clinic") in Belcourt,
North Dakota. The Department operates the Clinic.

According to Dr. Wilkie, in 2003, Todd Bercier, the administrative officer and
acting chief executive officer (CEO) of the Clinic at relevant times, began making
sexually suggestive comments to her. Dr. Wilkie testified that "[t]here were a couple
comments that [Bercier] had made, you know, like, oh, I've always thought you were
attractive since high school, and making reference to we should just go to like run off
to Venezuela." According to Dr. Wilkie, in 2004, Bercier rubbed his foot against her
foot while they were in a meeting with Linus Everling, the CEO at that time. After the
meeting, Dr. Wilkie told Everling what occurred, but he "said he didn't witness or see
anything, and he said if [Dr. Wilkie] didn't put it in writing, then nothing—it didn't
happen." Dr. Wilkie did not submit a complaint in writing.

Dr. Wilkie stated that Bercier, while intoxicated, would call her at home. In
2004, he came to her home unannounced on two or three different occasions. In the
fall of 2004, Dr. Wilkie came home and found Bercier sleeping naked in her bed with
a red, sheer cloth over one of her lamps and a bottle of alcohol next to the bed. Dr.

1
The Honorable Daniel L. Hovland, United States District Judge for the District
of North Dakota.

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Wilkie testified that she slept on the sofa that night and woke Bercier up the next
morning when his wife called wondering why he had spent the night at Dr. Wilkie's
home. Later that morning, Bercier called the emergency room where Dr. Wilkie was
working to apologize to her, and Dr. Wilkie told him to "just forget it." According to
Dr. Wilkie, she then told Bercier for the first time that his conduct was unwelcome
and inappropriate. Dr. Wilkie stated that people in the community were calling her
names because of the incident; however, she did not report the incident because she
was embarrassed. When asked whether she had any concerns for her own safety or
well-being, Dr. Wilkie replied, "When he was coming to my home and how he got
into my home, yeah I did." After the incident in the fall of 2004, Bercier never again
called Dr. Wilkie or came to her home. According to Dr. Wilkie, she spoke to several
CEOs about Bercier being impaired at work but never mentioned to them that Bercier
came to her home.

Dr. Wilkie testified that on July 20, 2005, Bercier withheld information from
her regarding one of her subordinates, Dr. Plasse. Dr. Plasse had taken
pharmaceuticals from the emergency room. According to Dr. Wilkie, Bercier told
another subordinate, Dr. Earls, not to tell Dr. Wilkie because she and Dr. Plasse were
having an affair. Bercier also purportedly stated that Dr. Wilkie was under psychiatric
care.

On August 2, 2005, Dr. Wilkie first contacted an Equal Employment
Opportunity (EEO) counselor. When asked "what were the actions that [she] alleged
as harassing in the EEO complaint," Dr. Wilkie responded, "When—I think what
really upset me is when [Bercier] didn't inform me that—of missing pharmaceuticals
from the emergency room that Dr. Plasse supposedly had taken, and he had made
comments to Dr. Earls not to tell me because I was having a sexual relationship with
Dr. Plasse." Bercier was the acting CEO while LaVerne Parker, the CEO at the time,
was absent from the Clinic. After filing the EEO complaint in August 2005, Dr.
Wilkie testified that Bercier "seemed hostile." She believed that Bercier "was

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monitoring or stalking" her at the Clinic during the week that Parker was absent.
According to Dr. Wilkie, "it . . . made my life miserable." Dr. Wilkie testified that
Bercier "accus[ed] [her] of being . . . hostile with the staff, accus[ed] [her] of basically
not doing [her] job, [and] being incompetent."

Bercier's alleged hostile conduct in August 2005 and thereafter included the
following incidents. First, Bercier attended a medical staff meeting regarding a new
medical record system and made comments that Dr. Wilkie believed were
"inappropriate" and "uncalled for" to her and other members of the medical staff.
Second, Bercier questioned Dr. Wilkie regarding comments that she had made to a
coworker. Third, Bercier contacted Dr. Wilkie about the inefficiencies involved with
allowing a physician to monitor the time it took to transfer medical charts. Fourth,
Bercier referred patients with complaints about the pharmacy to Dr. Wilkie. Dr.
Wilkie testified that she "couldn't take it anymore." Nancy Davis, "the acting or
deputy director at the time," granted Dr. Wilkie leave to speak with a counselor with
the employee assistance program.

On November 14, 2005, Dr. Wilkie sent Parker an email that stated:

I have contacted Vina Bohling for a request for Transfer—I should not
have to put up with the continued undermining of individuals in this
organization. I do not get the support I need as Clinical Director. I do not
wish to leave this service unit as I have several ties to the community, if
things do no[t] change th[e]n I feel forced to leave.

Dr. Wilkie explained in the email that the "continued stress and hostile environment
[was] causing [her] undue stress jeopardizing [her] physical well being." According
to Dr. Wilkie, Parker told her that she could arrange a transfer.

On February 15, 2006, Dr. Plasse and Dr. David Lau called a meeting of
members of the medical staff to address Dr. Wilkie's position as clinical director. The

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medical staff had removed the previous clinical director. The Clinic's bylaws set forth
a procedure permitting medical staff to assemble and vote a no-confidence vote. A
majority of the medical staff voted to remove Dr. Wilkie as clinical director.
According to Dr. Wilkie, proper procedures for the vote were not used, and both Dr.
Plasse and Dr. Lau undermined her authority by calling the meeting. Dr. Wilkie
testified that the "no confidence" vote "destroyed [her] ability and responsibilities as
clinical director in supervising the medical staff." But, during this time period, she was
not "having any difficulties" or "feel[ing] threatened or under any pressure from Todd
Bercier." To Dr. Wilkie's knowledge, Bercier "did not participate in the meeting."

After finding out about the "no confidence" vote, Dr. Wilkie immediately
reported the vote to Parker. After the "no confidence" vote, several doctors verbally
complained to Parker about Dr. Wilkie, and Parker sent Dr. Wilkie a letter about the
complaints. Parker also requested assistance from the human resources department in
Aberdeen, South Dakota. At about that same time, Dr. Wilkie submitted a request to
Parker to attend a continuing education course in Las Vegas, Nevada. Parker denied
the request.

On March 17, 2006, Dr. Wilkie resigned for "many, many multiple reasons."
According to Dr. Wilkie:

A lot of my concern was with how I was being just basically brushed
aside as clinical director and my responsibilities were not being seriously
taken or being accused of not doing my job, which I still don't
understand what I did wrong, and in how patient care was jeopardized by
having administration bring providers into the facility that were never
cleared by the medical staff, and yet I just don't understand how that
could be just not looked at and taken seriously when you're dealing with
patients. You just don't allow somebody to walk in your facility and start
working on human beings without having something in their file.

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 How I was brushed aside and not told about missing pharmaceuticals
from the facility and this is a department that I'm responsible for. How
administration could just totally ignore policies and procedures of our
facility that are there for a reason to prevent chaos from happening and
also to ensure that our facility is accredited with joint commission,
Medicare/Medicaid services, and yet they can be totally ignored.

How biased the investigation was that only certain members of the
medical staff were solicited for negative comments, and people that went
to speak on my behalf were dismissed, and that was—those
conversations were never recorded or given to my supervisor.

Dr. Wilkie testified that Bercier was, in part, one of the reasons that she resigned. She
reported the alleged harassing conduct that occurred in 2004 after she submitted her
resignation in March 2006.

On April 2, 2007, Dr. Wilkie filed a complaint in federal district court. In
response, the Department filed a motion to dismiss and a motion for summary
judgment. The district court granted the Department's motion to dismiss Dr. Wilkie's
Title VII claim, finding that the court lacked subject matter jurisdiction due to Dr.
Wilkie's failure to exhaust administrative remedies. The district court denied the
Department's motion to dismiss as it related to the tort and constitutional claims and
held such claims in abeyance pending a final decision from the Merit Systems
Protection Board (MSPB).

On July 24, 2008, an administrative law judge for the MSPB issued its initial
decision finding that Dr. Wilkie failed to show that her resignation was involuntary
and dismissing Dr. Wilkie's appeal "as outside the Board's appellate jurisdiction." Dr.
Wilkie filed a petition for review asking the MSPB to reconsider the initial decision.
The MSPB issued a final order denying the petition for review and concluding that
"there is no new, previously unavailable evidence and that the administrative judge
made no error in law or regulation that affects the outcome."

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 On November 21, 2008, Dr. Wilkie filed a new complaint in federal district
court claiming that she had exhausted her administrative remedies and reasserting the
causes of action set forth in her original complaint: (1) violation of the rights
guaranteed to her by Title VII; (2) intentional infliction of emotional harm; (3)
negligent infliction of emotional harm; (4) denial of her First and Fourteenth
Amendment rights; (5) defamation of her character and libel and slander to her
personal and professional reputation; and (6) violation of her rights as a whistle
blower.

The Department again filed a motion to dismiss and motion for summary
judgment. The district court initially dismissed Dr. Wilkie's non-Title VII claims.
Thereafter, the district court granted the Department's motion to dismiss claims
involving misconduct that occurred before June 18, 2005, for Dr. Wilkie's failure to
exhaust her administrative remedies. Additionally, the district court granted summary
judgment to the Department on Dr. Wilkie's claims for hostile work environment,
constructive discharge, sex discrimination, and retaliation.

II. Discussion
On appeal, Dr. Wilkie argues that the district court erred in finding that (1) her
Title VII claims regarding conduct that occurred before June 18, 2005, were barred
by her failure to seek counseling from the EEO within 45 days of the offensive
conduct; (2) her allegations of discriminatory conduct and constructive discharge
failed to raise a genuine issue of material fact as to hostile work environment and
sexual harassment; (3) she failed to present a prima facie case of gender
discrimination under Title VII; and (4) she failed to establish that her employer
retaliated against her for complaining of gender harassment.

We review the district court's grant of a motion to dismiss and motion for
summary judgment de novo. Trooien v. Mansour, 608 F.3d 1020, 1026 (8th Cir.
2010). A district court properly grants dismissal "if it appears beyond doubt that the

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plaintiff can prove no set of facts which would entitle him to relief." Id. (quotation and
citation omitted). A district court properly grants summary judgment "'if the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law.'" Id. (quoting Fed.
R. Civ. P. 56(c)).

A. Exhaustion of Administrative Remedies
Dr. Wilkie asserts that her sexual harassment claim based on events occurring
in 2004 are not time barred because (1) the offender was a part-time CEO that she
feared because he had the power to terminate her; (2) the offender committed at least
one act of sexual harassment after the bar date; and (3) the offender's harassment
caused her such mental trauma warranting an extension of the bar date.

In response, the Department argues that the district court correctly found that
Dr. Wilkie's claims for misconduct that occurred before June 18, 2005, are time
barred. According to the Department, Dr. Wilkie failed to report the incidents in 2004
within 45 days of their occurrence and instead waited approximately a year before
making contact with an EEO counselor. The Department maintains that Dr. Wilkie
failed to timely report the incidents within 45 days of their occurrence and asserts that
the 2004 allegations are not similar in nature, frequency, and severity to the 2005
allegations. Consequently, the district court correctly dismissed these claims because
Dr. Wilkie failed to exhaust administrative remedies.

A Title VII plaintiff must exhaust his or her administrative remedies before
bringing discrimination claims. Bailey v. U.S. Postal Serv., 208 F.3d 652, 654 (8th
Cir. 2000). An employee of a federal government agency who thinks that he or she has
"been discriminated against 'must consult a[n EEO] Counselor prior to filing a
complaint in order to try to informally resolve the matter.'" Id. (quoting 29 C.F.R.
§ 1614.105(a)). The employee "'must initiate contact with a Counselor within 45 days

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of the date of the matter alleged to be discriminatory.'" Id. (quoting 29 C.F.R.
§ 1614.105(a)(1)). Where an employee "can show that he 'was not notified of the time
limits and was not otherwise aware of them,'" he or she "may be absolved from any
failure to comply with the 45-day filing deadline." Id. (quoting 29 C.F.R.
§ 1614.105(a)(2)).

1. Mental Condition
But "[t]he same regulation that imposes the requirement of contacting an EEO
counselor provides that the time limit shall be extended when the complainant was
prevented by circumstances beyond his or her control from contacting the counselor
within the specified time." Jessie v. Potter, 516 F.3d 709, 714 (8th Cir. 2008) (citing
29 C.F.R. § 1614.105(a)(2); Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996)).
"[M]ental disability can be a ground for equitable tolling generally in federal law." Id.
For example, "courts have held that mental disability can toll the time in which an
employment discrimination claimant must file a discrimination suit, file an
administrative complaint, or contact an EEO counselor." Id. (internal citations
omitted).

We have held that "a plaintiff seeking tolling on the ground of mental
incapacity must come forward with evidence that a mental condition prevented him
from understanding and managing his affairs generally and from complying with the
deadline he seeks to toll." Id. at 715 (emphasis added). "Courts that have allowed
equitable tolling based on mental illness have done so only in exceptional
circumstances, such as where the complainant is institutionalized or adjudged
mentally incompetent." Lyons v. Potter, 521 F.3d 981, 983 (8th Cir. 2008). We have
observed "that the standard for tolling due to mental illness is a high one." Id.

In Jessie, we rejected the appellant's tolling argument based on mental
incapacity, noting that although one of the medical opinions that the appellant
submitted mentioned "depression," the opinion "g[ave] no further information that

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would shed light on whether the depression affected her ability to understand her legal
rights or act upon them." 516 F.3d at 715. Furthermore, the appellant failed to file any
"medical records or opinions indicating that she was deprived of her reasoning
faculties or was incapable of understanding or managing her affairs." Id.

Here, to support her claim of mental incapacity, Dr. Wilkie relies on the
testimony of Dr. Kathleen Hughes-Kuda, a psychiatrist who opined that Dr. Wilkie
"seemed pretty stressed and depressed" during the period of 2003 to 2005. Dr.
Hughes-Kuda also testified that she personally witnessed Bercier's intrusions at Dr.
Wilkie's home and saw the stress and depression that the intrusions caused Dr. Wilkie.
Dr. Wilkie also relies on the testimony of John Wegerle, a friend, who testified that
Dr. Wilkie was depressed and stressed during this time period.

But, as in Jessie, neither Dr. Hughes-Kuda's nor Wegerle's testimony satisfies
the high standard for tolling due to mental incapacity. Like in Jessie, the testimony
"describing her disabilities mentions 'depression,' but it gives no further information
that would shed light on whether the depression affected her ability to understand her
legal rights or act upon them." 516 F.3d at 715. And, Dr. Wilkie "has filed no medical
records or opinions indicating that she was deprived of her reasoning faculties or was
incapable of understanding or managing her affairs." Id.

Accordingly, Dr. Wilkie's claim for equitable tolling based on mental incapacity
fails.

2. Continuing Violation
Dr. Wilkie also argues that the 2004 incidents involving Bercier are not time
barred because her claims are based on a continuing violation that did not end until
she resigned in March 2006.

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 [A] Title VII plaintiff raising claims of discrete discriminatory or
retaliatory acts must file his charge within the appropriate time period
. . . . A charge alleging a hostile work environment claim, however, will
not be time barred so long as all acts which constitute the claim are part
of the same unlawful employment practice and at least one act falls
within the time period. Neither holding, however, precludes a court from
applying equitable doctrines that may toll or limit the time period.

Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002); see also Betz v.
Chertoff, 578 F.3d 929, 937–38 (8th Cir. 2009) (applying the Morgan standard to the
45-day period in 29 C.F.R. § 1614.105(a)); Lyons v. England, 307 F.3d 1092, 1106
n.6 (9th Cir. 2002) ("Although the circumstances in which 29 C.F.R. § 1614.105(a)(1)
may be equitably tolled are no doubt broader than the tolling opportunities under [42
U.S.C. § 2000e-5(e)], we find that the mandatory nature of the federal regulation is
sufficient to warrant full application of the Morgan rule.").

"A discrete retaliatory or discriminatory act 'occurred' on the day that it
'happened.' A party, therefore, must file a charge within [45] days of the date of the
act or lose the ability to recover for it." Morgan, 536 U.S. at 110. But

[t]he timely filing provision only requires that a Title VII plaintiff file a
charge within a certain number of days after the unlawful practice
happened. It does not matter, for purposes of the statute, that some of the
component acts of the hostile work environment fall outside the statutory
time period. Provided that an act contributing to the claim occurs within
the filing period, the entire time period of the hostile environment may
be considered by a court for the purposes of determining liability.

That act need not, however, be the last act. As long as the employer has
engaged in enough activity to make out an actionable hostile
environment claim, an unlawful employment practice has "occurred,"
even if it is still occurring. Subsequent events, however, may still be part
of the one hostile work environment claim and a charge may be filed at
a later date and still encompass the whole.

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Id. at 117 (footnote omitted).

No legal requirement exists "that the employee [must] file a charge prior to [45]
days 'after' the single unlawful practice 'occurred.'" Id. at 118. Because

the incidents constituting a hostile work environment are part of one
unlawful employment practice, the employer may be liable for all acts
that are part of this single claim. In order for the charge to be timely, the
employee need only file a charge within [45] days of any act that is part
of the hostile work environment.

Id.

Here, "[b]ecause [Dr. Wilkie's] charge alleged a hostile work environment—a
claim based on the 'cumulative effect of individual acts'—[her] hostile work
environment claim was timely if 'an act contributing to [the] claim occur[ed] within
the filing period . . . .'" Rowe v. Hussmann Corp., 381 F.3d 775, 779 (8th Cir. 2004)
(quoting Morgan, 536 U.S. at 115, 117). "This determination requires that we consider
'whether the acts about which an employee complains are part of the same actionable
hostile work environment practice, and if so, whether any act falls within the statutory
time period.'" Id. (quoting Morgan, 536 U.S. at 120). "[A]cts before and after the
limitations period [that are] so similar in nature, frequency, and severity . . . must be
considered to be part and parcel of the hostile work environment that constituted the
unlawful employment practice that gave rise to th[e] action." Id. at 781 (emphasis
added).

Here, Dr. Wilkie has failed to show how Bercier's alleged misconduct in 2004
is "so similar in nature, frequency, and severity" to the misconduct occurring in July
2005 and thereafter. See id. As the district court noted, the "harassing acts" that
occurred in 2004 were substantially different than those that occurred in 2005. The

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2004 acts can be characterized as "sexual advances" and include Bercier coming to Dr.
Wilkie's home while intoxicated, making comments regarding the two dating, playing
footsie with Dr. Wilkie, pointing a laser at her inappropriately, and entering Dr.
Wilkie's home and passing out naked in her bed.

By contrast, the 2005 acts did not involve personal, sexual advances made upon
Dr. Wilkie by Bercier or any other coworker. The alleged harassment was markedly
different, including (1) Bercier withholding information from her relating to one of
her subordinates, Dr. Plasse, taking pharmaceuticals from the emergency room; (2)
Bercier telling another subordinate, Dr. Earls, not to tell Dr. Wilkie about the
pharmaceuticals theft because Dr. Plasse and Dr. Wilkie were having an affair and Dr.
Wilkie was under psychiatric care; (3) Bercier attending a medical staff meeting and
making comments that Dr. Wilkie felt were confrontational to her and others; (4)
Bercier questioning Dr. Wilkie about comments that she had made to a coworker; (5)
Bercier contacting Dr. Wilkie about her inefficiencies monitoring physicians and the
time it takes to transfer medical charts; (6) Bercier referring patients with complaints
regarding the pharmacy to Dr. Wilkie; (7) Dr. Plasse and Dr. Lau calling a meeting
of members of the medical staff to address Dr. Wilkie's position as clinical director,
resulting in a no confidence vote; (8) several doctors verbally complaining to Parker
about Dr. Wilkie, and Parker sending Dr. Wilkie a letter regarding the complaints; (9)
the interviewing of several staff members regarding Dr. Wilkie's job performance; and
(10) Parker denying Dr. Wilkie's leave to attend a continuing medical education
course in Las Vegas.

Based on this record, we conclude that the tolling exceptions to the 45-day time
limit do not apply. Therefore, the district court did not err in holding as a matter of law
that Dr. Wilkie failed to exhaust administrative remedies regarding the alleged
misconduct that occurred before June 18, 2005, which was 45 days prior to Dr.
Wilkie's first contact with an EEO counselor.

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 B. Hostile Work Environment/Sexual Harassment
Dr. Wilkie next asserts that the district court impermissibly weighed the
evidence in concluding that she failed to prove that the alleged sexual harassment
affected a term, condition, or privilege of her employment and that her employer knew
or should have known of the harassment and failed to take prompt remedial action.

To establish a prima facie claim of hostile work environment by
non-supervisory co-workers, a plaintiff must show (1) that she belongs
to a protected group; (2) that she was subjected to unwelcome sexual
harassment; (3) that the harassment was based on her membership in a
protected group; (4) that the harassment affected a term, condition, or
privilege of her employment by creating a hostile work environment; and
(5) that the employer knew or should have known about the harassment
and failed to take proper remedial action.

Cross v. Prairie Meadows Racetrack & Casino, Inc., 615 F.3d 977, 981 (8th Cir.
2010).

Dr. Wilkie satisfied the first two elements of her prima facie case. With regard
to the third element, Dr. Wilkie must establish that the harassment was based on her
gender. As explained supra, we will not consider the 2004 incidents of Bercier's
misconduct because they are time barred. And, we agree with the district court that Dr.
Wilkie has failed to show how the 2005 incidents, with the exception of Bercier's
comment to Dr. Earls that Dr. Wilkie and Dr. Plasse were having an affair, qualified
as harassment based upon gender. See McDonnell v. Cisneros, 84 F.3d 256, 259–60
(7th Cir. 1996) ("Unfounded accusations that a woman worker is a 'whore,' a siren,
carrying on with her coworkers, a Circe, 'sleeping her way to the top,' and so forth are
capable of making the workplace unbearable for the woman verbally so harassed, and
since these are accusations based on the fact that she is a woman, they could constitute
a form of sexual harassment."). For purposes of this appeal we will assume, without
deciding, that the allegation that Bercier spread a rumor that Dr. Wilkie was having

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an affair with Dr. Plasse is harassment based on Dr. Wilkie's gender thus satisfying
the third element of the prima facie case. See id.

Dr. Wilkie must also prove "that the harassment affected a term, condition, or
privilege of her employment by creating a hostile work environment." Cross, 615 F.3d
at 981. We have previously noted that "[t]he standard for demonstrating a hostile work
environment on the basis of sexual harassment is a demanding one" and that "Title VII
does not prohibit all verbal or physical harassment and it is not a general civility code
for the American workplace." Id. (quotation and citations omitted). "[M]erely rude or
unpleasant" conduct is insufficient to support a claim; instead, "[a]ctionable conduct
must . . . be extreme." Id. "A plaintiff must establish that discriminatory intimidation,
ridicule, and insult permeated the workplace." Id. We consider the totality of the
circumstances in deciding whether a plaintiff demonstrated a hostile work
environment. Id. Factors we consider include "the frequency and severity of the
conduct, whether it is physically threatening or humiliating, and whether it
unreasonably interferes with the plaintiff's job performance." Id.

We find, as a matter of law, that Bercier's alleged rumor-spreading "was not
[harassment] so severe or pervasive that it met the high threshold for a hostile work
environment." See id. As the district court noted, this single act of discriminatory
conduct is "insufficient to establish that the work environment was so permeated with
discriminatory conduct that it altered a term, condition, or privilege of her
employment." Id. "Numerous cases have rejected hostile work environment claims
premised upon facts equally or more egregious than the conduct at issue here."
Duncan v. Gen. Motors Corp., 300 F.3d 928, 934 (8th Cir. 2002) (citing Shepherd v.
Comptroller of Pub. Accounts, 168 F.3d 871, 872, 874 (5th Cir. 1999) (holding that
several incidents over a two-year period, including the comment "your elbows are the
same color as your nipples," another comment that plaintiff had big thighs, repeated
touching of plaintiff's arm, and attempts to look down the plaintiff's dress, were
insufficient to support hostile work environment claim); Adusumilli v. City of Chi.,

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164 F.3d 353, 357, 361–62 (7th Cir. 1998) (holding conduct insufficient to support
hostile environment claim when employee teased plaintiff, made sexual jokes aimed
at her, told her not to wave at police officers "because people would think she was a
prostitute," commented about low-necked tops, leered at her breasts, and touched her
arm, fingers, or buttocks on four occasions); Black v. Zaring Homes, Inc., 104 F.3d
822, 823–24, 826 (6th Cir. 1997) (reversing jury verdict and holding behavior merely
offensive and insufficient to support hostile environment claim when employee
reached across plaintiff, stating "[n]othing I like more in the morning than sticky
buns" while staring at her suggestively; suggested to plaintiff that parcel of land be
named "Hootersville," "Titsville," or "Twin Peaks"; and asked "weren't you there
Saturday night dancing on the tables?" while discussing property near a biker bar);
Weiss v. Coca-Cola Bottling Co. of Chi., 990 F.2d 333, 337 (7th Cir. 1993) (holding
no sexual harassment when plaintiff's supervisor asked plaintiff for dates, asked about
her personal life, called her a "dumb blond," put his hand on her shoulder several
times, placed "I love you" signs at her work station, and attempted to kiss her twice
at work and once in a bar)).

C. Constructive Discharge2
Dr. Wilkie also contends that the district court erred in finding as a matter of
law that she voluntarily resigned and was not constructively discharged as a result of
the harassment.

Hostile work environment and constructive discharge claims may be
wholly distinct causes of action under Title VII. The claims have
different elements, and, while a hostile work environment can form the
basis for a constructive discharge allegation, hostile work environment
discrimination can exist absent a tangible employment action.

2
Although Dr. Wilkie's complaint did not allege constructive discharge, the
district court noted that on March 10, 2006, Dr. Wilkie sent Parker a letter that stated,
"I am submitting this letter as formal notification of constructive discharge . . . ."

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Winspear v. Cmty. Dev., Inc., 574 F.3d 604, 607 (8th Cir. 2009) (quotation and
internal citations omitted).

To prove a case of constructive discharge, a plaintiff must show (1) a
reasonable person in her situation would find the working conditions
intolerable, and (2) the employer intended to force her to quit. An
employee must, however, grant her employer a reasonable opportunity
to correct the intolerable condition before she terminates her
employment.

Anda v. Wickes Furniture Co., 517 F.3d 526, 534 (8th Cir. 2008) (quotations,
alterations, and internal citations omitted).

"[Dr. Wilkie] premises her constructive discharge claim on the same allegations
we found insufficient to establish a hostile work environment. As such, her claim
fails." O'Brien v. Dep't of Agric., 532 F.3d 805, 811 (8th Cir. 2008) (citing Penn. State
Police v. Suders, 542 U.S. 129, 147 (2004) ("A hostile-environment constructive
discharge claim entails something more [than an actionable hostile work
environment]."); Tran v. Trs. of State Colls. in Colo., 355 F.3d 1263, 1270–71 (10th
Cir. 2004) (recognizing that a plaintiff has a higher evidentiary burden when seeking
to establish a constructive discharge than an adverse employment action)).

D. Sex Discrimination
According to Dr. Wilkie, the district court erred in finding that she failed to
present a prima facie case of sex discrimination because Bercier's sexual harassment
constituted sex discrimination. She maintains that Bercier's false accusations that she
was having an affair with Dr. Plasse and was under psychiatric care could easily be
viewed by a reasonable juror as intending to disparage her because of her rejection of
his sexual overtures.

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 To establish a prima facie case of Title VII sexual discrimination, Dr. Wilkie
must prove that she (1) is a member of a protected class; (2) was qualified to perform
her job; (3) suffered an adverse employment action; and (4) was treated differently
than similarly situated employees who were not members of the protected class. Philip
v. Ford Motor Co., 413 F.3d 766, 768 (8th Cir. 2005).

The Department does not challenge the district court's finding that Dr. Wilkie
established the first two elements of her prima facie case. It asserts that the district
court correctly concluded that Dr. Wilkie failed to prove that she suffered an adverse
employment action and was treated differently than similarly situated males.

An adverse employment action is a tangible change in working
conditions that produces a material employment disadvantage. This
might include termination, cuts in pay or benefits, and changes that affect
an employee's future career prospects, as well as circumstances
amounting to a constructive discharge. Minor changes in duties or
working conditions, even unpalatable or unwelcome ones, which cause
no materially significant disadvantage, do not rise to the level of an
adverse employment action.

Clegg v. Ark. Dep't of Corr., 496 F.3d 922, 926 (8th Cir. 2007) (internal quotations,
alterations, and citations omitted).

Here, neither party disputes that the Department never terminated Dr. Wilkie,
cut her pay or benefits, or changed her job duties or responsibilities. And, as explained
supra, Dr. Wilkie's claim for constructive discharge fails. Therefore, Dr. Wilkie is
unable to show that she suffered an adverse employment action, an essential element
of her prima facie case, and her claim for sex discrimination fails.

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 E. Retaliation
Finally, Dr. Wilkie argues that the district court erred in finding that she failed
to establish that the Department retaliated against her for complaining of gender
harassment. She admits that "the evidence of Dr. Wilkie's complaining to her
employer specifically of 'gender harassment' does not jump off the page as does the
evidence of her expressly complaining of other hostile acts." She asserts that express
complaints would not have done any good and that management certainly knows of
Bercier's conduct now and still lets him keep his position as CEO. According to Dr.
Wilkie, she complained directly to Bercier that his conduct was inappropriate and
unwanted and also reported his sexual harassment to the previous CEO. She states that
she asked Parker not to put Bercier in charge when Parker was absent and that she did
report Bercier coming to work impaired by drugs and alcohol to Parker.

To establish a prima facie case of Title VII retaliation, Dr, Wilkie must
demonstrate that "1) she engaged in protected conduct; 2) a reasonable employee
would have found her employer's retaliatory action materially adverse; and 3) the
materially adverse action was causally linked to her protected conduct." Devin v.
Schwan's Home Serv., Inc., 491 F.3d 778, 785 (8th Cir. 2007).

Dr. Wilkie's retaliation claim necessarily fails because, as explained supra, she
has not demonstrated that the Department took a materially adverse action against her.

III. Conclusion
Accordingly, we affirm the judgment of the district court.
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