Kirby v. Donahoe

Filing 90

ORDER granting 73 Motion for Summary Judgment. (Written Opinion) Signed by Judge Susan Richard Nelson on 03/27/17. (SMD)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Millicent Kirby,

Case No. 14-cv-270 (SRN/KMM)

Plaintiff,
v.

MEMORANDUM OPINION
AND ORDER

Megan Brennan,
Postmaster General,
Defendant.

Jeffrey D. Schiek, Philip G. Villaume, Thomas Priebe, and Lisa McLeod-Lofquist,
Villaume & Schiek P.A., 2051 Killebrew Drive, Suite 611, Bloomington, Minnesota
55425, for Plaintiff.
Matt J. Cole and Timothy Vavricek, United States Attorney’s Office, 111 Seventh
Avenue Southeast, Box 1, Cedar Rapids, Iowa 52401, for Defendant.

SUSAN RICHARD NELSON, United States District Judge
I.

INTRODUCTION
Plaintiff Millicent Kirby, an employee of the United States Postal Service, Office

of Inspector General (“OIG”), brought this suit against Defendant Megan Brennan, 1 the
Postmaster General, alleging sex discrimination, retaliation, and hostile work
environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e
et seq. Defendant now moves for summary judgment on those claims. (See generally
1

The original named defendant in this matter was Patrick R. Donahoe, Postmaster
General until February 2015. Upon Donahoe’s retirement, Brennan automatically
substituted as defendant. See Fed. R. Civ. P. 25(d).

Def.’s Mot. for Summ. J. [Doc. No. 73].) For the reasons set forth below, Defendant’s
Motion is granted.
II.

BACKGROUND
A.

Factual History

The events underpinning this lawsuit stem from a background interview conducted
on May 20, 2011. As part of her duties as a special agent with the OIG, Kirby was
required to undergo a full background check every five years. (See Priebe Aff. [Doc. No.
78], Ex. J at 19.) On this particular occasion, the interview was conducted by an outside
contractor, Daniel Budnick. (See id., Ex. P at 13-14.) According to Kirby, Budnick
made several sexually-suggestive or inappropriate remarks during the interview,
including discussing his wife’s breasts, referring to his testicles, and repeatedly telling
Kirby that she was “beautiful.” (See id., Ex. Q (“Kirby Dep.”) at 18-19.) After the
interview concluded, Budnick also apparently asked Kirby’s co-worker, Stephen
Pizinger, if she had ever appeared in a pornographic video. (See Priebe Aff., Ex. K at 1617.)
Kirby immediately reported Budnick’s inappropriate behavior to her supervisor,
Assistant Special Agent in Charge (“ASAC”) Mark Hines. However, Kirby declined to
make a formal complaint because she feared Budnick might retaliate in some way. (See
Kirby Dep. at 22.)
Approximately five months after her interview with Budnick, Kirby was called in
to meet with ASAC Hines regarding certain red flags that had arisen as a result of her
background check. In particular, the background check had disclosed that Kirby’s live-in

boyfriend, Todd Weyker, had an extensive criminal history, which Kirby had failed to
disclose to Budnick. (See Cole Decl. [Doc. No. 76], Exs. 6, 7.) Complicating matters, it
later emerged that although Kirby had properly disclosed that she was living with
Weyker, Budnick had failed to ask whether he had a criminal record. Instead, Budnick
had improperly recorded—on his own initiative—that Kirby did not associate with
individuals with criminal records. (See Priebe Aff., Ex. B at 4.) Apparently in light of
this discrepancy, the OIG had asked ASAC Hines to determine whether Kirby even knew
that she was living with a felon. (See Cole Decl., Ex. 21 (“Hines Dep.”) at 12.)
During her interview with ASAC Hines, Kirby conceded that she did indeed know
of Weyker’s criminal history. (Id., Ex 7 at 1.) ASAC Hines relayed this information to
his superiors, and the OIG determined that an internal affairs (or “SID”) investigation
was warranted out of concern that Weyker might have improper access to Kirby’s service
weapon. (See Hines Dep. at 11.) While the SID investigation was ongoing, ASAC Hines
placed Kirby on “desk duty,” which entailed various material changes to her job duties,
and also required that she relinquish her service vehicle and weapon. (See Priebe Aff.,
Ex. J at 29-30.) In his deposition, ASAC Hines admitted that this was the first time he
had ever put anyone on desk duty, and Pizinger testified that he “had never seen” anyone
else placed in that position at the OIG. (Id. at 30; Priebe Aff., Ex. K at 103.)
In her interview with the SID investigator, Kirby revealed that she frequently left
her duty weapon unsecured on her kitchen counter when at home. (Cole Decl., Ex. 3 at
14-16.) This action is apparently in violation of OIG firearms policy, which requires that
“OIG firearms shall be secured at [special agent’s] residences in a manner to preclude

access to the weapon by anyone other than the [special agent] to whom it is issued.” (See
id., Ex. 9 at 1.)
On the basis of the completed SID report, ASAC Hines issued a Letter of Warning
(“LOW”) in Lieu of a Three-Day Time-Off Suspension to Kirby on February 21, 2012.
(See generally id.) The LOW levelled two specific charges against Kirby stemming from
her interview with Budnick: (1) that she had been careless in the performance of duty due
to her failure to follow the OIG firearms policy, and (2) that she had improperly withheld
information relating to Weyker’s criminal history during her background interview. (See
id.) With regard to the latter charge, ASAC Hines asserted that even though Kirby may
not have thought Weyker’s criminal record was relevant to the background check, she
had a duty to report such information voluntarily to the OIG and let her superiors
determine its relevance. In ASAC Hines’s view, Kirby’s conduct did not meet the high
standard expected of OIG personnel. (Id. at 2.)
Kirby appealed the LOW to Special Agent in Charge (“SAC”) David Barnes, her
third-line supervisor. SAC Barnes ultimately sustained the charges in the LOW, although
at Kirby’s request he amended the first charge to read “Violation of Firearms Policy”
instead of “Careless Performance of Duties.” (See Priebe Aff., Ex. S.) In accordance
with OIG policy, Kirby then appealed SAC Barnes’s decision to her fifth-line supervisor,
Deputy Assistant Inspector General for Investigations (“DAIGI”) Lance Carrington. (See
Cole Decl., Ex. 20 at 20.) It is undisputed that DAIGI Carrington had never met Kirby.
(See Cole Decl., Ex. 26 at 7.) After reviewing the LOW and the SID report, DAIGI
Carrington decided to uphold the violations of firearms policy charge, but rejected the

withholding information charge.

(See id., Ex. 10 at 1.)

At his deposition, DAIGI

Carrington testified that he thought that ASAC Hines and SAC Barnes were “a little
overly sensitive” to the withholding information charge, and that the evidence did not
substantiate their opinions. (See Priebe Aff., Ex. T at 27.) Nonetheless, he agreed with
SAC Barnes that Kirby’s failure to follow the OIG firearms policy was “extremely
careless” and “not acceptable.” (See Cole Decl., Ex. 10 at 2.) In light of the revised
charges, however, DAIGI Carrington decided to “mitigate the penalty from a Letter of
Warning in Lieu of a Three Day Time-Off Suspension to a Letter of Warning.” (Id. at 3.)
The LOW was to remain in Kirby’s personnel file for two years, and then be removed.
(Cole Decl., Ex. 20 at 32.)
On March 7, 2012, Kirby applied for an ASAC position in Greensboro, North
Carolina. (Id. at 21.) A review panel consisting of ASACs Mary Giberson, Shafee
Carnegie, and George Castillo convened to consider the qualifications of the twelve
applicants for the position. (See Cole Decl., Ex. 13. at 1-2.) Kirby and three male
applicants received an overall review score of zero points on the “Team Rating
Worksheet,” based on failure to demonstrate minimum proficiency in one or more of the
evaluation criteria.

(See id., Ex. 16C at 3.)

Accordingly, Kirby’s name was not

forwarded to the selecting official for the Greensboro position.
Kirby testified that she was not given a fair opportunity to compete for the
Greensboro position “because Lance Carrington was the DAIGI over the area.” (Kirby
Dep. at 163.) In her opinion, the denial of a chance to interview for the job was “part of
the retaliation for me filing a complaint.” (Id.) However, all three members of the

review panel submitted affidavits indicating that they did not know Kirby at the time they
made their decision, and did not know about any complaints she had made relating to sex
discrimination, retaliation, or hostile work environment.

(See id., Exs. 13, 14, 15.)

ASACs Giberson and Castillo also filed supplementary affidavits indicating that they
were unaware of the existence of the 2012 LOW. 2 (See Second Cole Decl., Exs. 13A,
14B.) DAIGI Carrington likewise filed a supplementary affidavit stating that he did not
discuss the LOW with any individual involved with hiring for the Greensboro position,
and did not participate in the selection process. (See id., Ex. 28.) Ultimately, the record
shows that a male candidate with the highest overall score, but with fewer years of work
experience than Kirby, was chosen for the position. 3
Kirby was given a second LOW on February 25, 2014—this time by ASAC
Joseph Schwartz. The LOW documented three instances of failure to follow instructions,
one instance of careless performance of duties, and two instances of unprofessional
conduct. (See Cole Decl., Ex. 11.) Kirby appealed ASAC Schwartz’s determination to
Deputy Special Agent in Charge (“DSAC”) Steven Stuller, who upheld the LOW on all
counts. (See id., Ex. 24 at 9.)
B.

Procedural History

Kirby brought this lawsuit in January 2014, and filed the operative complaint on
2

Somewhat inexplicably, Defendant did not submit a supplementary affidavit for ASAC
Carnegie. Because Kirby likewise failed to depose him, there is no evidence in the
record regarding whether he did or did not know of the 2012 LOW.
3
The selected candidate tied with three other candidates for the Greensboro position in
scoring a total score of 83 on the Team Rating Worksheet. (Cole Decl., Ex. 16C at 3.)
The record suggests that Kirby had nine more years of experience as a federal criminal
investigator, however. (See Priebe Aff., Exs. N, O.)

January 8, 2015. (See Second Am. Compl. [Doc. No. 39].) In that document, Kirby set
forth two causes of action against Defendant: “Discrimination in Violation of Federal
Law” (Count I), and “Retaliation/Reprisal in Violation of Federal Law” (Count II). (See
id. at ¶¶ 112-79.) Defendant moved to dismiss the complaint on February 9, 2015. (See
Mot. to Dismiss [Doc. No. 40].)
On July 10, 2015, this Court entered an order granting Defendant’s motion in part,
and denying it in part. See Kirby v. Donahoe, No. 14-cv-270 (SRN/TNL), 2015 WL
4208694 (D. Minn. July 10, 2015). A few aspects of that order are of particular relevance
to this decision. First, because Kirby failed to specify in her complaint what federal
statute provided the basis for her claims, the Court construed those claims as arising
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. 4 Second,
although the complaint specifically alleges only claims for discrimination and retaliation,
the Court noted that Kirby “repeatedly refers to being subjected to a ‘hostile work
environment.’” Kirby, 2015 WL 4208694, at *5. Accordingly, the Court analyzed the
pleadings as stating causes of action for discrimination, retaliation, and also retaliatory
hostile work environment. See id. at *5, 13. Finally, although Kirby’s complaint alleged
numerous factual bases supporting her claims, the Court concluded that many of those
facts were either time barred or insufficiently pleaded. See id. at *5-13. Thus, at this
stage of the proceedings, only the following aspects of Kirby’s claims remain justiciable:
(1) for her sex discrimination claim, the alleged failure to promote to the position of
ASAC in Greensboro, North Carolina; (2) for her retaliation claim, the 2012 LOW, the
4

Notably, neither party has challenged that determination.

2014 LOW, and the failure to promote to the Greensboro ASAC position; and (3) her
retaliatory hostile work environment claim. See id. at *11, 13-14.
III.

DISCUSSION
A.

Standard of Review

Summary judgment is appropriate if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A fact is “material” only if it may affect the outcome of the
lawsuit. TCF Nat’l Bank v. Mkt. Intelligence, Inc., 812 F.3d 701, 707 (8th Cir. 2016).
Likewise, an issue of material fact is “genuine” only if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).

The moving party bears the burden of

establishing a lack of genuine issue of fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986), and the reviewing court must view the evidence and any reasonable inferences in
the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
However, the nonmoving party may not merely rely on unsupported allegations or
denials to successfully avoid summary judgment. See Brunsting v. Lutsen Mountains
Corp., 601 F.3d 813, 820 (8th Cir. 2010). Instead, it must show through the presentation
of admissible evidence that a genuine issue of fact exists such that a “jury could
reasonably find [in its favor].” Anderson, 477 U.S. at 252. In this regard, the existence
of a scintilla of evidence in support of the non-moving party’s position will not suffice.
See Anda v. Wickes Furniture Co., 517 F.3d 526, 531 (8th Cir. 2008). Further, “[t]here is

no ‘discrimination case exception’ to the application of summary judgment, which is a
useful pretrial tool to determine whether any case, including one alleging discrimination,
merits a trial.” Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en
banc) (quoting Berg v. Norand Corp., 169 F.3d 1140, 1144 (8th Cir. 1999)).
B.

Discrimination

Title VII makes it unlawful for an employer to, among other things, “discriminate
against any individual with respect to [her] compensation, terms, conditions, or privileges
of employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1).
Discrimination occurs when sex is “a motivating factor for any employment practice,
even though other factors also motivated the practice.” Id. at § 2000e-2(m).
Where direct evidence of discrimination is lacking, as here, the plaintiff’s claims
are analyzed under the familiar McDonnell Douglas burden-shifting framework. See
Robinson v. Am. Red Cross, 753 F.3d 749, 754 (8th Cir. 2014). Kirby thus has the initial
burden of establishing a prima facie case of discrimination, at which point the burden of
production shifts to Defendant to articulate a legitimate, nondiscriminatory reason for its
actions. See McGinnis v. Union Pac. R.R., 496 F.3d 868, 873 (8th Cir. 2007). Assuming
Defendant meets this burden, the onus is on Kirby to establish that the reason offered by
Defendant is pretext. Id. While the burden of production shifts at various points under
McDonnell Douglas, it should be emphasized that the burden of proving that the
employer’s conduct was motivated by unlawful intent remains at all times with the
plaintiff. See Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1119 (8th Cir. 2006)
(citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)).

To establish a prima facie case of discrimination in a failure-to-promote case, the
plaintiff must show “(1) she is a member of a protected group; (2) she was qualified and
applied for a promotion to an available position; (3) she was rejected; and (4) similarly
situated employees, not part of the protected group, were promoted instead.” Younts v.
Fremont Cty., 370 F.3d 748, 754 (8th Cir. 2004) (citation omitted). The burden at this
stage is not onerous, Stewart v. Indep. Sch. Dist. No. 196, 481 F.3d 1034, 1043 (8th Cir.
2007), and the Defendant concedes, for purposes of this motion, that a prima facie case of
discrimination exists. (See Def.’s Mem. in Supp. of Mot. for Summ. J. [Doc. No. 75]
(“Def.’s Mem. in Supp.”) at 13.) Likewise, Kirby does not dispute that Defendant has
offered a legitimate, nondiscriminatory explanation for its failure to promote her—that
she was simply not the most qualified candidate for the Greensboro ASAC position. (See
Pl.’s Mem. in Opp’n to Def.’s Mot. for Summ. J. [Doc. No. 77] (“Pl.’s Mem. in Opp’n”)
at 28.) Accordingly, “the issue is whether [Kirby] offers sufficient evidence of pretext.”
Cox v. First Nat’l Bank, 792 F.3d 936, 939 (8th Cir. 2015). On review of the record, the
Court is left with the conviction that she has not done so.
In order to demonstrate a genuine issue of material fact regarding pretext, Kirby
must, in this instance, show that Defendant hired a less qualified candidate. See id.
“Where . . . the employer contends that the selected candidate was more qualified for the
position than the plaintiff, a comparative analysis of the qualifications is relevant to
determine whether there is reason to disbelieve the employer’s proffered reason for its
employment decision.”

Torgerson, 643 F.3d at 1048 (citation omitted).

“If the

comparison reveals that the plaintiff was only similarly qualified or not as qualified as the

selected candidate, then no inference of . . . discrimination would arise.” Id. (citation and
quotation omitted). Notably, it is the employer’s prerogative to identify those strengths
that constitute the best qualified applicant. Gilbert v. Des Moines Area Cmty. Coll., 495
F.3d 906, 916 (8th Cir. 2007).
Here, the record contains no evidence, besides Kirby’s own say-so, from which a
jury could conclude that she was objectively more qualified than the candidate Defendant
ultimately chose for the Greensboro ASAC position. Cf. Torgerson, 643 F.3d at 1050
(noting that employees’ own “subjective evaluation” of their “relative performance” was
“simply irrelevant” to issue of discrimination). Indeed, the only evidence before the
Court on the matter suggests that Kirby was not qualified for the position, as she received
a score of zero on the Team Rating Worksheet for failing to demonstrate proficiency in
one or more of the evaluation criteria.
Nonetheless, Kirby argues that a fact issue exists regarding the objectivity of the
selection process, because the chosen candidate had fewer years of overall work
experience than she did. In her view, this fact alone is sufficient to raise questions about
Defendant’s stated reason for not hiring her. The Court disagrees. While it is apparently
true that Kirby had more years of experience as a federal criminal investigator than the
successful applicant, that fact, taken in context, does not suffice to raise an inference of
discrimination. 5 The Court notes, for instance, that both candidates had served as special

5

Kirby highlights the fact that Defendant initially misstated the number of years of
relevant work experience possessed by the successful candidate for the Greensboro
ASAC position, and argues that this discrepancy entitles her to an inference that
Defendant’s reasons for not hiring her are pretextual. (See Pl.’s Mem. in Opp’n at 30.)

agents with the OIG for the same number of years. (See Priebe Aff., Exs. N, O.) More
pertinently, Kirby has presented no evidence to suggest the Defendant was motivated by
improper considerations in choosing to weigh the candidates’ Team Rating Worksheet
scores more heavily than overall work experience. Cf. Cox, 792 F.3d at 939 (finding no
material issue of fact as to pretext where plaintiff had more overall work experience but
chosen candidate scored higher on evaluation matrix). Taken as a whole, there is simply
no evidence from which a jury could reasonably conclude that Kirby was objectively the
more qualified candidate.
In her opposition memorandum, Kirby attempts to turn the lack of evidence of her
own comparative qualifications around on Defendant by arguing that, because Defendant
has failed to present a detailed comparison of the applicants’ resumes and test scores, she
has failed to demonstrate a lack of a genuine issue of material fact as to discrimination.
(See Pl.’s Mem. in Opp’n at 28, 30 n.10.) This argument reveals a misunderstanding of
who bears what burden at this stage of the litigation. Put simply, it is not Defendant’s job
to disprove pretext. Rather, it is the applicant’s responsibility to show that the defendant
hired a less qualified candidate. Torgerson, 643 F.3d 1048; Loeb v. Best Buy Co., 537
F.3d 867, 875 (8th Cir. 2008).

Here, that means that the onus was on Kirby to

demonstrate in what ways her qualifications were superior to her competitor’s, and mere

The Court sees no reason to conclude that the original misstatement—since corrected—
was anything other than inadvertent. In any event, even taking the correct figure into
account, the Court still finds that Kirby has failed to demonstrate a fact issue as to
pretext—the Defendant has consistently stated that the reason Kirby was not given an
interview was because she scored a zero on the Team Rating Worksheet, not because she
had insufficient work experience.

incantation of the summary judgment standard does not cure the deficiency. See id. at
1052 (“In this case, a reasonable jury could not infer pretext from the absence of
evidence.”).
Kirby may also demonstrate pretext by “persuading the court that a prohibited
reason more likely motivated the employer” than the reason put forth by Defendant. See
Cox, 792 F.3d at 939 (citation omitted).

Here, Kirby points to her belief that the

affidavits of ASACs Giberson, Carnegie, and Castillo, indicating that they did not know
who Kirby was or that she had engaged in any protected activities when they made their
hiring decision, are not credible. (See Pl.’s Mem. in Opp’n at 30.) In support of her
belief, Kirby notes that a document was obtained during discovery indicating that an
unrelated hiring official, for an unrelated position, was in fact aware that Kirby had been
the subject of a SID investigation and had received a LOW. (See Priebe Aff., Ex. A.)
Kirby argues that this evidence casts serious doubt on Defendant’s claim that the hiring
officials for the Greensboro ASAC position were screened off from such information.
The Court is unconvinced by this argument. Despite having ample opportunity to
do so, Kirby failed to depose the unrelated hiring official to uncover how he came in
possession of the information listed in the exhibit, or to determine whether such
information was typically shared with hiring officials. Instead, Kirby puts forth nothing
other than her own speculation as to what the actual hiring panel for the Greensboro
position saw.

Such speculation is certainly not sufficient, when set against three

unrefuted affidavits to the contrary, 6 to create a genuine issue of material fact regarding
motivation. Cf. Buettner v. Arch Coal Sales Co., 216 F.3d 707, 718 (8th Cir. 2000)
(noting that “pure speculation” as to defendant’s actions and motives was insufficient to
discredit defendant’s legitimate, non-discriminatory reason for terminating plaintiff).
Accordingly, the Court concludes that Kirby has failed to demonstrate the
existence of a genuine issue of material fact as to pretext and Defendant’s motion must be
granted on this claim.
C.

Retaliation

Kirby contends that Defendant engaged in various retaliatory activities in response
to her protests regarding Budnick’s conduct and her decision to file complaints with the
Equal Employment Opportunity Commission (“EEOC”) and this Court. “Title VII’s
antiretaliation provision forbids employer actions that ‘discriminate against’ an employee
(or job applicant) because [she] has ‘opposed’ a practice that Title VII forbids or has
‘made a charge, testified, assisted, or participated in’ a Title VII ‘investigation,
proceeding, or hearing.’” Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 59
(2006) (quoting 42 U.S.C. § 2000e-3(a)). As previously noted, the Court has so far
permitted Kirby’s retaliation claim to proceed as it relates to three discrete events: (1) the

6

Kirby also argues that the Court should disregard the affidavits of ASACs Giberson,
Carnegie, and Castillo, because they are “clear hearsay, pursuant to Fed. R. Evid.
801(c).” In her view, “[t]hese affidavits are out-of-court statements, used to prove the
truth of the matters asserted,” and thus cannot be considered by the Court. However,
Rule 56 of the Federal Rules of Civil Procedure explicitly provides that parties may
support their motions with, inter alia, affidavits. See Fed. R. Civ. P. 56(c). Further, the
affidavits themselves are not based on hearsay, and are clearly the product of personal
knowledge. See id.

failure to promote to the Greensboro ASAC position; (2) the 2012 LOW; and (3) the
2014 LOW. The Court will consider these three seriatim.
1.

The Greensboro ASAC Position

Because Kirby presents no direct evidence of retaliation, the McDonnell Douglas
test once more supplies the relevant analytical framework. See Pye v. Nu Aire, Inc., 641
F.3d 1011, 1021 (8th Cir. 2011). At the prima facie stage, Kirby must thus show that (1)
she engaged in protected conduct, (2) she suffered a materially adverse employment
action, and (3) the adverse action was causally linked to the protected conduct. Id. With
regard to the Greensboro ASAC position, Defendant contends that Kirby cannot
demonstrate the third element of her prima facie case because “it is undisputed that no
one in the Greensboro hiring process knew about Plaintiff’s complaints of sex
discrimination, retaliation, or hostile work environment.” (See Def.’s Mem. in Supp. at
16.)
Reviewing the relevant case law, the Court cannot disagree. The Eighth Circuit
has repeatedly made clear that causation cannot be established where the evidence shows
the hiring committee had no knowledge of any protected activities. See, e.g., Robinson v.
Potter, 453 F.3d 990, 994 (8th Cir. 2006) (“With respect to the first instance of nonpromotion, Robinson cannot show causation because none of the members of the hiring
committee knew about her pending EEOC complaint.”); Wilson v. Northcutt, 411 F.3d
586, 592-93 (8th Cir. 2006) (noting that decision-makers must have awareness of the
protected activity). For the reasons stated previously in Part III.B of this opinion, there is
no evidence (speculation aside) to suggest that the three members of the Greensboro

ASAC hiring committee had any knowledge of Kirby’s protected activities, or even that
she had received a LOW.
Perhaps recognizing the lack of concrete evidence of causation, Kirby highlights
the temporal proximity between her receipt of the LOW on February 21, 2012 and her
application for the Greensboro position on March 7, 2012. (See Pl.’s Mem. in Opp’n at
40.) In her view, the shortness of this interlude suggests a connection between the LOW
and her failure to secure promotion. It is true, as this Court has previously recognized,
that a close connection in time between protected conduct and an adverse employment
event can suffice to establish causation for purposes of the plaintiff’s prima facie case.
See, e.g., Boettcher v. Express Servs., Inc., No. 13-cv-1231 (SRN/JJG), 2014 WL
2922355, at *4 (D. Minn. June 27, 2014). But as Kirby’s own cited authority indicates,
such temporal proximity arguments will prevail only as “the final straw if the issue is
close.” Schoonover v. Schneider Nat’l Carriers, Inc., 492 F. Supp. 2d 1103, 1157 (S.D.
Iowa 2007). Here, because the sole evidence on the matter indicates that the Greensboro
hiring committee was not aware of the LOW’s existence, the Court is left to draw the
only plausible inference to be found—that the temporal proximity was a coincidence
only.
Finally, Kirby argues that even if the hiring committee did not directly know of
her protected conduct, factual issues exist as to whether DAIGI Carrington improperly
sabotaged her chances of promotion.

(See Pl.’s Mem. in Opp’n at 37-38.)

In so

contending, she asserts a claim of cat’s paw liability. See Torgerson, 643 F.3d at 1045
(observing that “if a non-decisionmaker performs an act motivated by a discriminatory

bias that is intended to cause, and that does proximately cause, an adverse employment
action, then the employer has cat’s-paw liability”). Under that theory, “an employer
cannot shield itself from liability for unlawful termination by using a purportedly
independent person or committee as the decisionmaker where the decisionmaker merely
serves as the conduit, vehicle, or rubber stamp by which another achieves his or her
unlawful design.” Richardson v. Sugg, 448 F.3d 1046, 1060 (8th Cir. 2006) (citation
omitted). Kirby asserts that DAIGI Carrington knew about her protected activities and
the LOW she had received, and that he had to authorize the promotion of the candidate
selected by the Greensboro hiring committee. In her view, a fact issue thus exists as to
whether the hiring committee’s seemingly detached determination was not tainted by
DAIGI Carrington’s bias.
The problem with this theory, however, is that the only actual evidence on the
matter conclusively establishes that DAIGI Carrington exerted no influence over the
Greensboro hiring decision. 7 Both ASACs Giberson and Castillo testified that they did
not discuss Kirby’s application, credentials, or disciplinary history with DAIGI
Carrington. (See Second Cole Decl., Exs. 13A, 14A.) Likewise, DAIGI Carrington
testified that he did not participate in the selection process before the final decision was
made, did not review the applications of those who applied for the position, did not

7

Once again, Kirby argues that evidence showing that an unrelated hiring official, for an
unrelated position, was aware of Kirby’s disciplinary issues calls into question the
credibility of the Greensboro committee. Given that there was no overlap between the
two hiring processes, this argument is nothing more than speculation, and cannot
overcome Defendant’s unrebutted evidence to the contrary. See Buettner v. Arch Coal
Sales Co., 216 F.3d at 718.

participate in any interviews, did not know Kirby was a candidate, did not discuss the
applications with anyone on the hiring committee, and did not discuss Kirby’s LOW with
any of the hiring officials. (See id., Ex. 28.)
Even were the Court to conclude otherwise, however, and find that Kirby had
established her prima facie case, it would still find that she has failed to establish pretext.
As the Court has discussed, Defendant has consistently articulated a legitimate reason for
the failure to promote Kirby to the ASAC position in Greensboro—that she was not the
most qualified person for the job as demonstrated by the selection process. Kirby has no
more refuted Defendant’s reason in the context of retaliation than she has in the context
of discrimination. Accordingly, the Court concludes that there is no genuine issue of
material fact as to discriminatory retaliation related to the Greensboro failure-to-promote
incident.
2.

The LOWs

Turning to the LOWs Kirby received in 2012 and 2014, Defendant again argues
that Kirby cannot establish her prima facie case of retaliation. In this instance, however,
Defendant directs the Court’s attention to the second element: the existence of a
“materially adverse employment action.” As Defendant notes, both the 2012 and the
2014 LOW have been rescinded and are no longer in Kirby’s personnel file. (See Def.’s
Mem. in Supp. at 17-18.) Because an adverse employment action must be one that
causes a “significant change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits,” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761

(1998), Defendant contends that the LOWs simply do not qualify.
Once again, the Court agrees. Several courts, including this one, have had cause
over the years to consider whether a letter of warning can by itself constitute an adverse
employment action. As best the Court can tell, the answer has been uniformly negative.
See, e.g., Ogden v. Brennan, 657 F. App’x 232, 236 (5th Cir. 2016) (observing that a
rescinded letter of warning was not an adverse employment action); Kimble v. Donahoe,
511 F. App’x 573, 575 (7th Cir. 2013) (same); Smith v. Potter, 252 F. App’x 224, 230
(10th Cir. 2007) (same); Chicocki v. U.S. Postal Serv., No. 04-cv-4355 (DSD/SRN), 2005
WL 1324078, at *3 (D. Minn. May 26, 2005) (same). While the Eighth Circuit itself has
not had cause to consider the matter, in a similar context that court has determined that
negative performance reviews do not, without more, constitute adverse employment
actions for purposes of Title VII. See, e.g., LaCroix v. Sears, Roebuck and Co., 240 F.3d
688, 692 (8th Cir. 2001); Spears v. Mo. Dep’t of Corr. & Human Res., 210 F.3d 850, 854
(8th Cir. 2000); Cossette v. Minn. Power & Light, 188 F.3d 964, 972 (8th Cir. 1999).
In response, Kirby argues that while LOWs by themselves may not be adverse
employment actions, they can rise to that level when they form the basis for some
alteration in the conditions of employment. While that may be true, Kirby has failed to
present evidence that the conditions of her employment have been altered. For instance,
nowhere does she show that she suffered a reduction in salary, or received a negative
reassignment, 8 or lost employment benefits as a result of either LOW. See Burlington,

8

Notably, while Kirby was reassigned to desk duty during the course of the SID
investigation, that reassignment ended the same day that the 2012 LOW was issued, and

524 U.S. at 761. Although Kirby has alleged that the 2012 LOW impacted her chances
of securing the Greensboro ASAC promotion, this Court has already explained that the
evidence does not support her allegation. Thus, in the absence of any evidence that either
LOW contributed to an alteration in her conditions of employment, the Court finds that
Kirby has failed to raise a genuine issue of material fact with regard to her prima facie
case. Cf. Smith, 252 F. App’x at 230 (“Mr. Smith failed to show that the Letter of
Warning was an ‘adverse employment action’ given that he worked for almost two years
after he received it, and he was never demoted, suspended, or terminated as the result of
it. Moreover, although Mr. Smith alleged that the Letter of Warning caused him to be
scrutinized more closely and bypassed for favorable job assignments, he has presented no
evidence to support those claims.”) Accordingly, Defendant is entitled to summary
judgment as to the retaliation claim.
D.

Retaliatory Hostile Work Environment

Finally, Kirby alleges that she has been subjected to “countless and ongoing acts
of retaliation” as punishment for her complaints of harassment, etc. As evidence to
support this allegation, she points particularly to: (1) ASAC Hines’s decision to reassign
her to desk duty while the SID investigation was ongoing, and accompanying loss of
various privileges; (2) a low pay-for-performance score she received in November 2011;
(3) being required to attend the same training on more than one occasion; (4) being
required to participate in bi-weekly case reviews with a supervisor in 2014; (5)
contradictory instructions from supervisors; and (6) unfounded and disparate discipline,
thus was not a consequence of the LOW. (See Priebe Aff., Ex. J at 43.)

including the 2012 and 2014 LOWs. (See Pl.’s Mem. in Opp’n at 46.)
Although the Eighth Circuit has recognized the viability of a retaliatory hostile
work environment claim, see Stewart, 481 F.3d at 1042, it has not set forth the elements
necessary to state such a claim. See Scott v. City of Sioux City, 68 F. Supp. 3d 1022,
1037 (N.D. Iowa 2014). Nonetheless, other circuits to have considered the matter are in
apparent agreement that, at minimum, a plaintiff must establish the following prima facie
case: (1) that she engaged in protected activity; (2) the defendant knew of her protected
activity; (3) she was subjected to severe or pervasive retaliatory harassment; and (4) the
protected activity is causally connected to the harassment. See, e.g., Kelly v. Dun &
Bradstreet, Inc., 641 F. App’x 922, 923 (11th Cir. 2016); Khamati v. Sec’y of Dep’t of the
Treasury, 557 F. App’x 434, 443 (6th Cir. 2014); Noviello v. City of Boston, 398 F.3d 76,
92 (1st Cir. 2005).
Retaliatory hostile work environment case law makes clear that the keystone of the
plaintiff’s case is the requirement that the retaliation perpetrated by the defendant be
severe or pervasive. See Gowski v. Peake, 682 F.3d 1299, 1312 (11th Cir. 2012); Shukh
v. Seagate Tech., LLC, No. 10-cv-404 (JRT/JJK), 2014 WL 1281518, at *24 (D. Minn.
Mar. 31, 2014). In order to meet this high threshold, the harassment must be “severe
enough to affect the terms, conditions, or privileges of [the plaintiff’s] employment.”
Sellers v. Deere & Co., 791 F.3d 938, 945 (8th Cir. 2015) (quotation omitted).
Additionally, the harassment must be “objectively and subjectively offensive, one 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). In

assessing the objective offensiveness of the defendant’s actions, courts must consider all
the relevant circumstances, including the “frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work performance.”
Id. at 787-88 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993)). Because
Title VII was not enacted to create a “general civility code,” Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 80 (1998), “rudeness or ostracism, standing alone,
usually is not enough to support a hostile work environment claim.” Noviello, 398 F.3d
at 92.
Judged against this demanding standard, it is clear that Kirby cannot show that the
alleged retaliatory harassment was so “severe or pervasive” as to affect a term, condition,
or privilege of her employment. While the actions Kirby complains of may well have
been petty, irritating, and even unwarranted, it is stretching beyond reason to conclude
that they were of such a cruel or unreasonable nature as to seriously interfere with
Kirby’s ability to perform her job. Cf. Devin v. Schwan’s Home Serv., Inc., 491 F.3d
778, 788 (8th Cir. 2007) (“As for her claims she was denied a Route Builder, was
unfairly disciplined, was paid less than male RMs, was not allowed to expense pay phone
calls, and was required to make inventory changes on the computer, they, at best, amount
to a frustrating work environment rather than an objectively hostile work environment.”);
Bradley v. Widnall, 232 F.3d 626, 631-32 (8th Cir. 2000) (finding allegations that
plaintiff’s “supervisory duties were curtailed, that she was left out of the decision-making
process, treated with disrespect, and subject to false complaints” insufficient to show

severity or pervasiveness of harassment); Khamati, 557 F. App’x at 443 (concluding that
plaintiff’s summary reassignment to different city, physical isolation from other
employees, and subjection to months-long investigation, among other things, was not
severe or pervasive harassment); Shukh, 2014 WL 1281518, at *24 (finding that
employer’s threat of manufacturing complaints against plaintiff, failure to follow its own
policies in investigating discrimination complaints, and physical and psychological
isolation of plaintiff did not meet “the demanding standard of a hostile work
environment”). Accordingly, the Court finds that Defendant is entitled to summary
judgment as to Kirby’s retaliatory hostile work environment claim, as well.
IV.

CONCLUSION
Although the Court is sympathetic to what appears to have been a difficult and at

times unpleasant working relationship, it concludes that Kirby has failed to present facts
from which a reasonable jury could find that those difficulties rose to the level of being
actionable. Accordingly, the Court concludes that Defendant is entitled to summary
judgment on all claims.
THEREFORE, IT IS HEREBY ORDERED THAT:
1.

Defendant’s Motion for Summary Judgment [Doc. No. 73] is GRANTED;
and

2.

Plaintiff’s Second Amended Complaint [Doc. No. 39] is DISMISSED with
prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: March 27, 2017

s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge