Brazil v. Arkansas Department of Human Services
ORDER granting 53 Motion. Judgment will issue in due course. Signed by Judge D. P. Marshall Jr. on 4/23/2015. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
ARKANSAS DEPARTMENT OF
Mary Brazil has brought Title VII race discrimination and retaliation
claims against the Arkansas Department of Human Services. Brazil is AfricanAmerican. She and a former coworker, Drenda Harkins, had a sometimes
contentious relationship. The record is silent about Harkins' s race. Harkins
later became Brazil's supervisor and, according to Brazil, treated her unfairly.
Brazil has provided a thorough background of her relationship with Harkins.
Boiled down, Brazil has presented two claims: She was denied a lateral
transfer because of her race; and she was retaliated against for complaining
about Harkins in the transfer request.
1. Facts. Here are the undisputed material facts, and where there is some
genuine dispute, the facts offered by Brazil. Taylor v. White, 321 F.3d 710, 715
(8th Cir. 2003).
Brazil has worked at DHS for nearly three decades. In 2007, she
transferred to the Division of Medical Services. There Brazil worked as an
administrative assistant to Debbie Hopkins. Brazil and Drenda Harkins, at the
time, were coworkers. In spring 2010, Harkins asked Brazil to perform a task.
Brazil didn't do it quickly enough for Harkins. Displeased, Harkins pulled
Brazil aside and scolded her for having a bad attitude. Hopkins retired a few
months later, and Harkins succeeded her as Brazil's supervisor.
Shortly after becoming a supervisor, Harkins reassigned many of
Brazil's duties to Debbie Cripps, a Caucasian coworker. Brazil still performed
many of her pre-Harkins duties, but she no longer had enough work to stay
busy. Brazil tired of her light load and asked to transfer under Roger Patton's
direct supervision. Harkins approved the transfer.
Brazil enjoyed working for Patton. But in late 2012, Patton transferred
to the newly created Customer Care and Coordination of Coverage Unit. With
Patton gone, Tracy Mitchell became Brazil's immediate supervisor. Even after
the supervisor swap, with everyone's agreement, Brazil continued doing
work for Patton. In January 2013, Mitchell emailed the CCCCU supervisors
that Brazil would soon be working on a big project and would no longer be
able to help the CCCCU. Harkins reviewed a draft of Mitchell's email and
rewrote it. Ng 58-2 at 9 & 69 at 4. Brazil believes that Harkins orchestrated the
Mitchell email to prevent Brazil from having meaningful work and
opportunities to advance her career.
A few days after the Mitchell email, Brazil requested a transfer to the
CCCCU. Her request was denied; Suzanne Bierman, the unit's head, said she
had no job openings for an administrative assistant. Ng 53-5. About a month
later, Brazil complained to the DHS' s directors about the unpleasant working
conditions under Harkins. NQ 53-9. At the end of her complaint, Brazil asked
to be transferred out of Harkins' s unit. Brazil did not confine her transfer
request to the CCCCU. Surely, Brazil says, one of DHS' s twenty-seven units
had a job for her. For example, Alisa Carter, another Caucasian coworker, was
transferred to a different division around the time Brazil asked for a transfer.
Carter, though, had a different job; and Brazil is unsure whether Carter
transferred or simply moved desks.
In retaliation for Brazil's complaint, Harkins (according to Brazil) used
the performance-evaluation process to harass her. Irregularities in the process,
Brazil says, reveal Harkins' s ill intent. First, a man named Victor Sterling
accompanied Mitchell to the meeting where Brazil reviewed her evaluation.
Mitchell alone should have conducted the meeting. Second, the evaluation
wasn't signed by Brazil's supervisors, as required by DHS policy. Third,
Brazil was rated "unsatisfactory" in three of the four areas of evaluation.
Brazil successfully appealed those low scores. N2 53-12. And Mitchell was
ordered to re-attend supervisor training. N2 53-11.
Shortly after Brazil filed this lawsuit, someone put parking cards halfsoaked inred ink on Brazil's desk. Brazil was disturbed and intimidated when
she saw the cards. Brazil doesn't know who planted the cards. She suspects
that Harkins masterminded the scheme in retaliation for her complaint.
2. Title VII Claim. Brazil has not made out a prima facie case of
direct evidence of
discrimination, Brazil must show that she (1) belonged to a protected class, (2)
satisfied DHS' s expectations, (3) suffered an adverse employment action, and
(4) did so in circumstances permitting an inference of discrimination. Davis
v. Jefferson Hospital Association, 685 F.3d 675, 681 (8th Cir. 2012). The parties
agree that Brazil satisfies the first two elements.
Brazil's claim fails on the third element because a transfer denial is not
an adverse employment action. LePique v. Hove, 217 F.3d 1012, 1013-14
(8th Cir. 2000). Even if it were, Brazil hasn't offered evidence that she was
denied a transfer because she is African-American. The series of emails
between Harkins and Mitchell don't show, as Brazil alleges, that Harkins
masterminded a scheme to pull Brazil from the CCCCU. Those emails show
that Harkins toned down an email that Mitchell wanted to send colleagues.
On this record, a reasonable juror could not infer that Harkins, based on race,
solicited the Mitchell email to discriminate against Brazil. Instead, Brazil was
denied the transfer because the CCCCU had no job for her.
Brazil argues that the no-opening excuse is pretext for discrimination.
As evidence, Brazil points out that the CCCCU hired Chevera Blakemore, an
administrative assistant. The Court assumes, because it's favorable to Brazil,
that Blakemore was an administrative assistant. NQ 69-4 at 1-2. It's
uncontested, however, that Harkins never supervised Blakemore. That
difference makes Blakemore an improper comparator. Wierman v. Casey's
General Stores, 638 F.3d 984, 994 (8th Cir. 2011). More important than any
difference, Brazil and Blakemore are both African-American. Brazil's pretext
evidence is thus plainly inconsistent with a reasonable inference of race-based
discrimination. Compare Ridout v. JBS USA, LLC, 716 F.3d 1079, 1086-87
(8th Cir. 2013).
Brazil has also not shown that others in her position were allowed to
transfer. Brazil says that Alisa Carter, a Caucasian coworker, was transferred
to another unit. But Carter performed different job duties and had a different
pay grade than Brazil. Moreover, Brazil is uncertain whether Carter was
transferred or simply moved to another desk. NQ 58-1 at 73-77 & 79-80.
It's unfortunate that Brazil is being underutilized in her job. This record,
however, doesn't support a reasonable inference that Brazil's race has caused
her work problems.
3. Retaliation. Brazil's claim that Harkins retaliated against her for
requesting a transfer fails too. To prove retaliation, Brazil must show that she
(1) engaged in protected conduct, (2) suffered an adverse employment action,
and (3) the two things were causally related. Davis, 685 F.3d at 684.
Brazil has not shown that she's suffered an adverse employment action.
The Court accepts as true that Mitchell unfairly rated Brazil's job performance
as "unsatisfactory." But Brazil successfully appealed this unfair evaluation,
which was never made part of her personnel jacket. NQ 53-11. And those
scores didn't affect her pay, position, or other conditions of employment.
Without more, an unfair performance evaluation is not an adverse
employment action. Compare Phillips v. Collings, 256 F.3d 843, 848-49 (8th Cir.
2001) with Cossette v. Minnesota Power & Light, 188 F.3d 964, 972 (8th Cir. 1999).
Brazil also got a smaller discretionary bonus in 2014 than in 2013. She
attributes the smaller bonus to her unfair performance evaluation. DHS
counters that the State of Arkansas gave smaller bonuses to all employees in
2014 than it had in 2013. Brazil has offered no evidence showing that
retaliation, rather than a generally applicable state policy, drove her 2014
Last, Brazil says that, after she filed this lawsuit, someone put the redink-soaked parking cards on her desk. That's a disturbing event. And this
kind of conduct is unacceptable on the job. Brazil believes Harkins was
behind it. Brazil has no evidence beyond her opinion, though, of what or who
prompted the cards. Brazil's belief is insufficient to support a retaliation
verdict. Clay v. Credit Bureau Enterprises, Inc., 754 F.3d 535, 540-41 (8th Cir.
Motion, Ng 53, granted. Judgment will issue in due course.
D .P. Marshall Jr.
United States District Judge
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