Pettus v. Harvey et al
ORDER granting Defendants' 24 Motion for Summary Judgment. Judgment will be entered for the defendants. Signed by Judge Susan Webber Wright on 4/13/2012. (pag)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
ELBERT HARVEY and LAURA BEDNAR,
in their individual capacities,
IDA M. PETTUS,
ARKANSAS DEPARTMENT OF
No. 4:11CV00046 SWW
No. 4:11CV00424 SWW
Memorandum Opinion and Order
Before the Court is defendants’ motion for summary judgment to which plaintiff
responded. Defendants filed a reply to the response. For the reasons stated below, the Court
finds the motion for summary judgment should be granted.
Plaintiff Ida Pettus (“Pettus”), a black female, began working for defendant Arkansas
Department of Education (“ADE”) first in 1998 and then again in 1999. When she applied to the
These background facts are taken mainly from defendants’ statement of undisputed facts which
plaintiff did not controvert. See docket entries 26 & 32.
ADE in 1999, Pettus said she would be willing to accept employment anywhere in the state.
Pettus was employed as a School Improvement Advisor (“SIA”) when she was terminated from
her job on January 14, 2011.
Defendant Elbert Harvey, a white male, became Pettus’s direct supervisor in February
2010, and in April 2010, defendant Laura Bednar became Harvey’s direct supervisor. Defendant
Bednar, an ADE Assistant Commissioner, oversees the Division of Learning Services, which has
fourteen different units, including the School Improvement Unit, which is managed by Harvey,
the Coordinator of the Statewide System of Support. Generally speaking, the School
Improvement Unit assists school districts in developing and implementing their annual school
improvement plans or Arkansas Comprehensive School Improvement Plans (“ACSIP”). After
these plans are approved, the ADE interacts with the districts as they amend, adjust, and
implement their plans, and then resubmit them for final approval.
There is also a “Smart Accountability” process that allows the state to better differentiate
interventions and resources to schools most in need. Under Smart Accountability, a State
Specialty Team (“SST”), composed of ADE, educational cooperative, and other personnel meets
with and assists school districts in identifying and addressing areas in which the district is having
problems. Under Smart Accountability, the SST’s are scheduled to meet quarterly with district
leadership to review progress and develop the steps to be taken before the next scheduled
meeting. Between the scheduled district meetings, various other meetings are held between SST
members as well as SST members and district leadership. When Harvey began managing ADE’s
School Improvement Unit, he changed how school districts were served under Smart
Accountability, instituting a much more active leadership role for the SIAs. While SIAs
previously were merely SST members, they now would lead the team.
Generally, an educational cooperative provides services to school districts within the coop region with the overall goal of increasing student achievement. Each co-op is governed by a
board composed of the superintendent of each school district in the co-op region. In the summer
of 2010, Harvey reorganized the statewide service areas to generally focus them around the
educational co-ops, and then reassigned SIAs to service these geographic areas. At the time of
the reorganization, Pettus already had been working directly with some of the school districts (as
their ACSIP supervisor) also served by the Dawson Co-Op, so Harvey assigned her to work with
On May 20, 2010, Harvey sent an e-mail to all SIAs cancelling all “field work” until
further notice and directing the SIAs to be at their official work station2 during their scheduled
work hours. The following morning, Pettus was not at work and Harvey could not find her. He
tried to reach her on her ADE cell phone but she did not answer and he left a message for Pettus
to call him back. When he did not hear back for over an hour, he contacted the Bryant School
District where, according to Pettus’s Outlook calendar, she was scheduled to be that morning.
Bryant School District informed Harvey she was not there and Pettus had changed the meeting
date. Pettus arrived at work at 11:30 a.m. at which time she told Harvey she had been at a
scheduled doctor’s appointment. On May 26, 2010, Harvey issued Pettus a letter of reprimand,
noting that she failed to file for leave prior to taking it in violation of ADE policy. The letter
warned her that “[a]ny recurrence of this infraction or other act of misconduct may lead to future
disciplinary action up to and including an immediate recommendation for your termination.”
Pettus’s official work station at that time was Little Rock.
Previously, on May 21, 2010, Harvey had issued Pettus a “letter of clarification” but determined
that it should be converted to a letter of reprimand due to the nature of her offense.
On September 2, 2010, Harvey issued a letter of reprimand to Pettus for failing to attend
SST training at the Dawson Co-Op on August 24, 2010. The training was conducted via
Compressed Interactive Video (“CIV”), which provided two-way video and audio
communication between all participants. The SST members, including the SIAs, participated in
the CIV from the various educational co-op sites from around the state. Every SIA except Pettus
attended this training. In his letter, Harvey noted that the CIV training had been discussed at
numerous other trainings and staff meetings since April, with a final schedule issued on August
9. Harvey also noted in the reprimand letter that in checking Pettus’s Outlook calendar he
noticed the calendar was not completed as directed.
Regarding the calendar issue, when Harvey became manager of the School Improvement
Unit, he notified the SIAs that their Outlook calendars must be updated to indicate the SIA’s
planned schedule for the next two weeks. He discussed this two-week calendaring requirement
with Pettus during his September 2 meeting with her and also presented her with a second copy
of notes from a staff meeting on July 8, which Pettus did not attend because she was on vacation,
during which he discussed the calendaring requirement. According to Fred Hodge, an
Administrative Specialist, there is no reason why any SIA would not be aware of the
Defendant Harvey said that during this same period of time, Dawson Co-Op personnel
told him that they lacked confidence in Pettus’s abilities and leadership, and asked that ADE
provide another SIA to work with them instead of Pettus. Ms. Beth Neel, Dawon’s Teacher
Center Coordinator said she voiced concerns about Pettus to Becky Jester, Dawson Co-Op’s
Director, and to Harvey, and asked whether the ADE could replace Pettus with another SIA.
Harvey notified co-op personnel that such a request would need to be put in writing. Harvey
said that in addition to the complaints from Dawson Co-Op, he had personally observed what he
considered to be lack of leadership skills by Pettus. He said he discussed with Pettus the
concerns brought to him by the Dawson Co-Op and told Pettus that if the Co-Op put them in
writing, he would have to address them. Harvey said there was one other time that a co-op
requested that he not assign a SIA and that was when the Western Co-Op asked that he not
assign a particular white male and he did not assign him there. Mr. Hodge said that he was
aware of incidents where school districts, when calling the School Improvement Unit and
learning that Pettus was their assigned SIA, asked to speak to someone else.
On September 8, 2010, Harvey received a letter from Jester requesting that someone
other than Pettus be assigned to work with schools within the Dawson Co-Op. On the same day,
Harvey gave Pettus a copy of the letter and notified her that she would be housed at ADE in
Little Rock pending a new assignment. Harvey said he did not feel that the request was racially
motivated but that it was based on Pettus’s leadership abilities. In addition, Harvey noted that
the Dawson Co-Op had several black employees, including Jester’s “second in command.”
Harvey said that at this point in time, all service areas had been assigned SIAs other than
Pettus. The only exception was that one of the two SIAs assigned to Crowley’s Ridge Co-Op in
Harrisburg, Arkansas, had left to take a job with the Little Rock School District. So Harvey
assigned Pettus to Crowley’s Ridge Co-Op, which became Pettus’s official work station on
September 21, 2010.
Because the Dawson Co-Op was within 60 miles of Little Rock, Pettus’s official work
station was considered Little Rock, and the ADE paid her mileage when she went to the Dawson
Co-Op. Because Crowley’s Ridge Co-Op was farther than 60 miles from Little Rock, it became
Pettus’s official work station and she was not paid mileage for traveling there from Little Rock.
Crowley’s Ridge Co-Op, in Harrisburg, Arkansas, was also the official work station of the other
SIA, Pam Clark, a white female, and she was not reimbursed for mileage for traveling from her
home in Newport, Arkansas, to the Co-Op.
Prior to being officially assigned to Crowley’s Ridge Co-Op, Pettus spent some time
there working along side Clark. During this period, there also was a three-day conference in Hot
Springs, Arkansas that Pettus and the other SIAs attended. After Pettus told Clark that she had
been officially assigned to Crowley’s Ridge, Clark said she told Pettus they needed to divide up
the schools Clark had been handling. Ms. Clark said Pettus refused, saying she did not want any
of the schools. Clark said she dropped the issue for the time being until Harvey specifically
instructed Clark to give Pettus some of the schools. Clark said it was protocol at Crowley’s
Ridge Co-Op that the SIAs worked as a team and split up the workload among themselves,
although sometimes the ADE in Little Rock would make the assignments.
On September 16, 2010, the Equal Employment Opportunity Commission (“EEOC”)
mailed the ADE a notification that Pettus had filed a charge of discrimination and retaliation.
The charge related to the two letters of reprimand that Pettus had received from Harvey. The
EEOC did not request a response from the ADE, and on September 22, 2010, the EEOC issued
Pettus a right-to-sue letter. Harvey said he did not learn of the charge that was the subject of the
September 16 letter until mid-October, at which time the ADE’s Human Resources Department
notified him that the EEOC was seeking a response to another EEOC charge Pettus had filed.
Starting September 23, 2010, Pettus was off work for about three weeks; part of the time
she was off under the Family and Medical Leave Act (“FMLA”) to care for her daughter.
According to Harvey, Pettus was upset that she was not receiving mileage reimbursement for her
travel to Crowley’s Ridge Co-Op and she was not willing to reside in the Harrisburg area.
Harvey agreed to allow Pettus to work out of the ADE offices in Little Rock two days per week
to limit her travel days which she did upon return from her FMLA leave. When SIA Mary
Calloway resigned her position in late October 2010, Harvey assigned the North Little Rock and
Pulaski County School Districts to Pettus, both of which she could work out of the ADE Little
Rock office. On October 18, 2010, Harvey gave Pettus an overall rating of “satisfactory” on her
On October 19, 2010, the EEOC mailed the ADE a notification that Pettus had filed
another charge of discrimination and retaliation over the two reprimand letters and her
assignment to Crowley’s Ridge Co-Op. The EEOC issued a right-to-sue letter on February 22,
2011. Pettus also filed a complaint with the United States Department of Education alleging race
discrimination and retaliation which the Department referred to the EEOC.
Pettus also filed a complaint through the ADE’s internal grievance procedure on
November 24, 2010, alleging race discrimination and harassment. Specifically, Pettus
complained about being unfairly reprimanded, not being given work assignments “for two
months,” being assigned to Crowley’s Ridge Co-Op without receiving travel reimbursement, and
receiving an unsatisfactory job evaluation. Pettus’s grievance was denied at the agency level.
The State Employee Grievance Appeal Panel (“SEGAP”) found in Pettus’s favor on a portion of
her grievance, and the ADE appealed. On October 21, 2011, the SEGAP decision was reversed.
The ADE held an internal hearing on Pettus’s grievance on December 10, 2010. Before
the hearing began, Harvey instructed Pettus to submit any request she had for annual leave
during the holiday season and asked her to update her calendar for the rest of the year. Pettus
said at the hearing that she interpreted Harvey’s remarks to mean that she had to take time off
during the holidays. During the hearing, Harvey clarified that Pettus did not have to take time
off and could work through the holidays if she wanted. Later that day, Harvey checked the
SIAs’ calendars to see if they had been updated; Pettus’s had not.
On the morning of December 13, 2010, Pettus fell and injured her knee while working at
the Little Rock office. She left the office around 1:00 p.m. to go to the doctor and then took sick
leave for the rest of the week. While off work, Pettus filed another grievance on December 16,
2010, complaining that Harvey attempted to “undermine [her] leadership” by interrupting her
while she was conducting a meeting with SST members. Pettus worked off and on from
December 20, 2010, until her termination on January 14, 2011.
On December 17, 2010, Harvey checked the SIAs’ Outlook calenders for holiday
coverage. Although Pettus had been working through December 10 and then for several hours
on the day of her injury, Harvey said her Outlook calendar still had not been properly updated.
Harvey checked Pettus’s calendar again on January 3, 2011, and then on January 7. Although
Pettus had filled in her December calendar, her January calendar still was not properly updated
on either the 3rd or the 7th. On January 7, 2011, Harvey printed Pettus’s December and January
Defendant Harvey consulted with Assistant Commissioner of Human Resources Beverly
Williams on January 12, 2011, about Pettus’s repeated failure to update her calendar in accordance
with his instructions. Ms. Williams instructed Harvey to check Pettus’s calendar again, which he
did on January 12, and it contained the same entries as it had on January 7. On January 12, Harvey
also discussed the situation with Bednar who confirmed that Harvey had discussed the matter with
Human Resources to ensure that they had not missed anything or that they needed to do something
different. On that same day, Harvey decided that termination was appropriate because of Pettus’s
repeated failure to update her calendar as directed.
On January 13, 2011, Pettus submitted to ADE Human Services a FMLA Certification which
said she was unable to perform any duties from 12/13/10 through 12/20/10 and only partial duties
from 12/21/10 through 12/29/10. The Certification also noted that Pettus might need intermittent
leave from 12/29/30 through 1/12/11 approximately twice per week, two to three hours per day, for
physical therapy if approved by Worker’s Compensation.
On January 14, 2011, Harvey and Bednar met with Pettus to discuss her termination. Harvey
gave her a termination letter and supporting documentation. Pettus testified that on January 14,
2011, her Outlook calendar was in fact updated; that she had printed a copy of the January 2011
page that was updated through the end of the month before the meeting; and that Harvey and Bednar
refused to allow her to go back to her office to get a copy. Defendants deny they refused Pettus
permission to ger her calendar, and Pettus testified that she went back to her office after the
termination meeting but made no attempt to give Harvey, Bednar, or any other official a copy of her
calendar showing that she had updated it.
In an EEOC Intake Questionnaire dated February 28, 2011, Pettus wrote that she had updated
her calendar and that someone had deleted the information. When asked about the allegation during
her deposition, Pettus said Hodge, who was helping her with her calendar, could have accidently
deleted the calendar information. Based on her belief that Harvey discriminated and retaliated
against her, Pettus also said Harvey may have deleted the information. Harvey said he could not
have deleted information from Pettus’s calendar because he only had access to review and not edit
her calendar. On April 12, 2011, Pettus filed a charge of discrimination with the EEOC alleging her
termination was based on race and in retaliation for having filed previous EEOC complaints. The
EEOC issued a right-to-sue letter on April 19, 2011.
On January 18, 2011, Pettus filed a law suit against the State of Arkansas, ADE Director
Thomas Kimbrell, in his official capacity, and Harvey and Bednar in their individual capacities
alleging race discrimination and retaliation under 42 U.S.C. §§ 1981 and 1983 and violation of the
Family and Medical Leave Act and the Arkansas Civil Rights Act (Case No. 4:11cv46 SWW). On
May 4, 2011, the Court dismissed Pettus’s § 1981 and Arkansas Civil Rights Act claims, her § 1983
claims against the State of Arkansas and Kimbrell, and her FMLA claim against the State of
Arkansas. On May 18, 2011, Pettus filed a Title VII employment discrimination complaint against
the ADE (Case No. 4:11cv424 SWW). The cases were consolidated on June 27, 2011.
Defendants argue they are entitled to summary judgment because Pettus cannot establish a
prima facie case of discrimination or retaliation or that the reasons defendants gave for their actions
were a pretext for illegal discrimination. Defendants Harvey and Bednar also argue they are entitled
to qualified immunity.
Standard of Review
Summary judgment is appropriate when “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.” Fed.R.Civ.P. 56(c). As a prerequisite to summary judgment, a moving party must
demonstrate “an absence of evidence to support the non-moving party’s case.” Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). Once the moving party has properly supported its motion for
summary judgment, the non-moving party must “do more than simply show there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). The non-moving party may not rest on mere allegations or denials of her
pleading but must “come forward with ‘specific facts showing that there is a genuine issue for
trial.’” Id. at 587 (quoting Fed.R.Civ.P. 56(e)).
“[A] genuine issue of material fact exists if: (1) there is a dispute of fact; (2) the disputed fact
is material to the outcome of the case; and (3) the dispute is genuine, that is, a reasonable jury could
return a verdict for either party.” RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401
(8th Cir. 1995). The inferences to be drawn from the underlying facts must be viewed in the light
most favorable to the party opposing the motion. Matsushita, 475 U.S. at 587 (citations omitted).
“Only disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). “Factual disputes that are irrelevant or unnecessary will not be counted.” Id.
Pettus brings her race discrimination and retaliation claims pursuant to 42 U.S.C. § 1983 and
Title VII of the Civil Rights Act of 1964.3 In the absence of direct evidence, a plaintiff asserting a
The Eighth Circuit analyzes Title VII and § 1983 claims under the same framework.
Humphries v. Pulaski County Special Sch. Dist., 580 F.3d 688, 692 n.3 (8th Cir. 2009).
claim of discrimination under Title VII has the initial burden of establishing a prima facie case. A
plaintiff establishes a prima facie case by showing that: (1) she was a member of a protected class;
(2) she was meeting the employer’s legitimate job expectations; (3) she suffered an adverse
employment action; and (4) she has facts that give rise to an inference of discrimination. Takele v.
Mayo Clinic, 576 F.3d 834, 838 (8th Cir. 2009). A plaintiff may establish the fourth prong by
producing facts that similarly situated employees outside the protected class were treated differently.
If the plaintiff establishes the elements of a prima facie case, then the employer has the
burden of producing a legitimate, non-discriminatory reason for the challenged employment action.
McDonnell Douglas Corp., 411 U.S. 792, 802 (1973). Once the employer satisfies its burden of
production, any rebuttable presumption of discrimination disappears, and the plaintiff must prove
that the proffered reasons are a pretext for discrimination. Id. The burden of proof remains at all
times with the plaintiff to establish that she was the victim of unlawful discrimination. St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
Pettus claims she was terminated because of her race and in retaliation for filing charges of
discrimination, and for using leave under the FMLA. She also complains that her job location was
changed from Little Rock to Harrisburg in retaliation for complaining about race discrimination and
that Harvey made her working conditions intolerable by transferring her from the Dawson Co-Op
to Crowley’s Ridge Co-Op, not giving her any duties to perform during certain periods of time,
asking her to write a perception of her job duties, and repeatedly interrupting her during a meeting.
Defendants argue Pettus failed to meet her prima facie burden because the ADE “had the
legitimate expectation that [Pettus] would not be insubordinate in the performance of [her] duties,”
Miner v. Bi-State Dev. Agency, 943 F.2d 912, 913-14 (8th Cir. 1992), and she failed to offer
evidence of any other SIA who failed to update his or her calendar as often as she yet suffered lesser
consequences. Further, defendants argue Pettus failed to establish that the legitimate, nondiscriminatory reason given by her employer for her termination was pretextual.
There is no dispute that Harvey required all SIAs to keep their calendars updated two weeks
in advance. While Pettus testified she believes such a requirement is unreasonable because SIAs’
schedules change so much, that is not her decision. In Tolerson v. Auburn Steel Co., 987 F. Supp.
700, 710 (E.D.Ark.), aff’d, 131 F.3d 1255 (8th Cir. 1997), cert. denied, 523 U.S. 1095 (1998)
(internal quotation and citation omitted), the court recognized that “[a]n employeer has the right to
. . . assign work, to change an employee’s duties, to refuse to assign a particular job, and to discharge
- for good reason, bad reason, or no reason at all, absent . . . intentional discrimination.” See also
Smith v. Monsanto Chem. Co., 770 F.2d 719, 723 n.3 (8th Cir. 1985)(an employer may develop
arbitrary, ridiculous and even irrational policies as long as they are applied in a nondiscriminatory
manner). Pettus submits no evidence that the policy regarding updated calendars was applied in a
After her termination, Pettus presented a Outlook calendar page purportedly dated January
3, 2011, in which she had listed an activity on every work day in January. It is uncontested,
however, that Harvey printed her January calendar on January 7, 2011, and on that date Pettus’s
calendar was not properly updated. Harvey testified that when he checked Pettus’s calendar again
on January 12, 2011, it had the same entries as on January 7. Even assuming arguendo that some
unidentified person who had edit access to Pettus’s calendar accidentally or intentionally deleted
several of her calendar entries, that would not change the fact that the calendar was not properly
updated when Harvey reviewed the calendar on January 7 and again on January 12. The critical
inquiry is whether Harvey had a good faith belief that Pettus violated the calendaring rule. See
McCullough v. Univ. of Ark. for Med. Sci., 559 F.3d 855, 862 (8th Cir. 2009). Although Pettus
testified she had a hard copy of her January calendar page which she said was printed on January
3 showing that she had fully updated her calendar, she did not show it to Harvey, Bednar, or anyone
else at ADE on her date of termination.
Pettus also claims her termination was in retaliation for filing complaints alleging
discrimination. First Amendment retaliation claims are analyzed under the same framework as
claims of retaliation under Title VII. Okruhlik v. Univ. of Ark., 395 F.3d 872, 878 (8th Cir. 2005).
Plaintiff Pettus must establish that she engaged in protected conduct, was subjected to an adverse
employment action, and there is a causal connection between the protected conduct and the adverse
action. Tyler v. Univ. of Ark. Bd. of Trustees, 628 F.3d 985 (8th Cir. 2011).
In terms of the causal connection, the plaintiff must show that the protected conduct
was a “determinative—not merely motivating—factor in the employer's adverse
employment decision. If the plaintiff succeeds, the burden shifts to the employer to
articulate a legitimate, nondiscriminatory reason for the action. If the defendant does
so, the plaintiff can still prevail on a final step of the McDonnell Douglas analysis
by proving, by a preponderance of the evidence, that the reasons proffered by the
employer are merely pretext for discrimination.
Id. at 985-86 (internal quotations and citations omitted).
Pettus filed an EEOC charge in September 2010 complaining about the two letters of
reprimands she received. She filed another charge of discrimination with the EEOC in October
2010. It was after Pettus filed the second EEOC charge that Harvey became aware of the earlier
one. Defendant Harvey terminated Pettus in January 2011. Generally, “more than a temporal
connection is required to present a genuine factual issue on retaliation,” and only in cases where the
proximity is very close may the plaintiff rest on it exclusively. Tyler, supra, 628 F.3d at 980, 986.
Over two months passed between Pettus filing her EEOC charges and making a complaint to the
U.S. Department of Education and her termination. An “interval as brief as two months [does] not
show causation for purposes of establishing a retaliation claim.” Id.
Pettus has presented no evidence establishing a causal connection between her protected
conduct and her termination. In addition, she has failed to offer evidence sufficient to establish a
legitimate issue of material fact as to whether the legitimate, non-retaliatory reasons set forth by her
employer for its actions were pretextual.
Pettus also alleges her termination was in retaliation for taking FMLA leave. Such a claim
is evaluated under the McDonnell Douglas framework. Phillips v. Mathews, 547 F.3d 905 (8th Cir.
2008). Pettus was taking FMLA leave at the time of her termination, but there is no evidence that
the two were causally linked. The evidence is clear that Harvey, who made the decision to terminate
Pettus, was concerned with her failure to properly update her calendar well before Pettus began
taking FMLA leave due to her knee injury. The record is clear that Pettus had been afforded FMLA
previously to care for her daughter, and in addition to approving FMLA leave, Harvey further
accommodated her knee injury by allowing Pettus to work out of the Little Rock office and not
requiring her to travel to Crowley’s Ride Co-Op while she was recuperating. When asked whether
she thought Harvey was retaliating against her for taking FMLA leave, Pettus said she thought he
was retaliating against her for filing complaints with the EEOC and contacting the U.S. Department
Because Pettus failed to meet her prima facie burden, her FMLA retaliation claim must fail.
Additionally, for the same reasons set out above, Pettus failed to provide evidence to create a
genuine issue of material fact as to whether the proffered reason for her termination was pretextual.
2. Transfer to Crowley’s Ridge Co-Op
Pettus argues that her removal from Dawson Co-Op and subsequent reassignment to
Crowley’s Ridge Co-Op was illegal race discrimination and in retaliation for complaining about race
discrimination. She complains that because of her reassignment, her work station changed so that
she would not be reimbursed for mileage. She claims she was treated differently than white
employees as far as the distance she had to travel. Defendants assert Pettus cannot establish a prima
facie case because the reassignment was not an adverse employment action, and Pettus has no
evidence that a similarly situated white employee was treated more favorably. “An adverse
employment action is a tangible change in working conditions that produces a material employment
disadvantage. Termination, reduction in pay or benefits, and changes in employment that
significantly affect an employee's future career prospects meet this standard, but minor changes in
working conditions that merely inconvenience an employee or alter an employee's work
responsibilities do not.” Sallis v. Univ. of Minnesota, 408 F.3d 470, 476 (8th Cir. 2005)(citations
omitted). “A transfer involving only minor changes in working conditions and no reduction in pay
or benefits will not constitute an adverse employment action, ‘[o]therwise every trivial personnel
action that an irritable ... employee did not like would form the basis of a discrimination suit.’”
Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997)(citing Williams v. Bristol-Myers
Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996)). The Court finds Pettus fails to establish that she
suffered an adverse employment action or that there were non-African American employees who
were allowed to determine where they would be stationed when there was only one open area in the
Pettus complains that Crowley’s Ridge Co-Op is the only co-op in the state with two fulltime SIAs and that her duties at Crowley’s Ridge Co-Op are the same ones she had at Dawson CoOp which Harvey said she was incapable of doing. Even if Pettus could establish a prima facie case,
the Court finds she has not shown that the justification for her reassignment is a pretext. The
evidence is undisputed that the director of the Dawson Co-Op asked Harvey to assign a different
SIA to that co-op because she was concerned about Pettus’s leadership abilities. The evidence is
also undisputed that Harvey honored the request of a different co-op not to assign a white male to
serve it. The evidence is also uncontested that the only service area that had a vacancy at the time
of Pettus’s reassignment was Crowley’s Ridge.
Pettus has the burden to produce evidence sufficient to create a genuine issue of material fact
regarding whether Harvey’s proffered explanation is merely a pretext for unlawful discrimination
and retaliation. Unsubstantiated and conclusory allegations are insufficient to support an inference
of pretext. Rose-Matson v. NME Hosp., Inc., 133 F.3d 1104, 1109 (8th Cir. 1998). Pettus has
produced no factual evidence supporting her claim that Harvey’s decision to transfer her to
Crowley’s Ridge was based on race or retaliation. As stated above, Harvey did not know until midOctober 2010 that Pettus had filed two EEOC complaints; he reassigned Pettus to Crowley’s Ridge
Co-Op in September 2010.
The Court also finds Pettus has not established a prima face case of discrimination regarding her
complaints that Harvey did not assign her any duties for certain periods of time, that he asked to her write
her perception of her job duties, and interrupted her during a meeting. These allegations do not establish
an adverse employment action. See Sallis, supra.
IT IS THEREFORE ORDERED that defendants’ motion for summary judgment [docket
entry 24] be and is hereby granted. Judgment will be entered for defendants.
DATED this 13th day of April, 2012.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE
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