Clegg v. Arkansas Dept. of Correction

• Decision Date: 13 August 2007
• Docket Number: No. 06-3119.,06-3119.
• Citation: 496 F.3d 922
• Parties: Lori CLEGG, Appellant, v. ARKANSAS DEPARTMENT OF CORRECTION; Roger Cameron, in his Individual and Official Capacity as SATP Administrator; Cedric Albritton, in his Individual and Official Capactiy at SATP Leader, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

496 F.3d 922

Lori CLEGG, Appellant, v. ARKANSAS DEPARTMENT OF CORRECTION; Roger Cameron, in his Individual and Official Capacity as SATP Administrator; Cedric Albritton, in his Individual and Official Capactiy at SATP Leader, Appellees.

No. 06-3119.

United States Court of Appeals, Eighth Circuit.

Submitted: March 15, 2007.

Filed: August 13, 2007.

Lorraine Hatcher, argued, Little Rock, AR, for appellant.

Lori L. Freno, AAG, argued, Mark A. Hagemeier, on the brief, Little Rock, AR, for appellee.

Before COLLOTON, HANSEN, and GRUENDER, Circuit Judges.

[PUBLISHED]

HANSEN, Circuit Judge.

Lori Clegg filed this suit against her employer and individual coworkers alleging race and gender discrimination, retaliation, and violations of the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. §§ 4301-4333. The district court,¹ 2006 WL 1730774, granted the defendants' motion for summary judgment and dismissed Ms. Clegg's claims. She appeals. We affirm.

I.

Lori Clegg, an African-American female, began working for the Arkansas Department of Correction (ADOC) in 1997. In 2003, Ms. Clegg was working in the Tucker maximum security unit as a Substance Abuse Treatment Program (SATP) coordinator. As a SATP coordinator, Ms. Clegg was classified as a Grade 20 employee.

In February 2003, Ms. Clegg was activated for military duty in Iraq as part of her service in the Army National Guard. She took military leave from the ADOC and served overseas until June 2004. Upon her return, Ms. Clegg notified the ADOC that she planned to return to work on September 7, 2004.

In July 2004, the administrator of the SATP program, Roger Cameron, telephoned Ms. Clegg at home to inform her of two pieces of information. The first was that state certification requirements had changed while she was on leave and that in order to remain qualified for her job and to continue to be employed by the ADOC, she needed to obtain a Certified Criminal Justice Professional credential. Cameron also told Ms. Clegg that they were considering assigning her to the Therapeutic Community (TC) counseling unit at Tucker, instead of the SATP unit, upon her return in September.

Ms. Clegg did not agree with the ADOC's tentative decision to transfer her to the TC program, and she filed a complaint with her military unit's Judge Advocate General's (JAG) office and the Department of Labor. The JAG sent a letter to ADOC shortly thereafter, and Ms. Clegg was notified by ADOC on August 27, 2004, that she would be placed in her original SATP position upon her return. The Department of Labor closed its investigation and sent a closing letter to the ADOC on September 28, 2004, a month after ADOC had already notified Ms. Clegg she would return to the SATP position.

Ms. Clegg returned to work on September 7, 2004. Ms. Clegg returned as a Grade 20 employee and received a higher salary than prior to taking leave. She benefitted from two cost-of-living increases that had been awarded in that time period. Working with Ms. Clegg in the SATP unit upon her return were Cedric Albritton, an African-American male who had taken over Ms. Clegg's duties when she was on military leave, and Jess Cathcart, a white male. Ms. Clegg's immediate supervisor was Kerry Bakken, a white male, who served as the Clinical Supervisor for the ADOC's substance abuse programs at the Tucker unit. Bakken reported directly to Administrator Cameron.

Ms. Clegg filed a complaint with the EEOC on December 9, 2004, alleging racial and sexual discrimination and retaliation during the time period from July 13, 2004, through October 14, 2004. She alleged that during that time she was subjected to retaliation by being denied items she required for work and that she was discriminated against because she was not given her same position or rate of pay upon her return. A second EEOC complaint was filed by Ms. Clegg on April 5, 2005, in which she alleged various types of retaliatory behavior were directed toward her after she filed the first EEOC complaint. Specifically, Ms. Clegg alleged that she was denied training opportunities, was subjected to different terms and working conditions than her coworkers, and that she was unfairly given an adverse performance evaluation.

After receiving a right to sue letter from the EEOC, Ms. Clegg filed suit against the ADOC, ADOC Director Larry Norris, Warden Marvin Evans, Jr., Administrator Cameron, and coworker Albritton, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17; violations of her 14th Amendment due process rights pursuant to 42 U.S.C. § 1983; the Arkansas Civil Rights Act (ACRA), Ark.Code §§ 16-123-101 to 16-123-108; and USERRA. Ms. Clegg later voluntarily dismissed Director Norris and Warden Evans from the suit, and the remaining defendants moved for summary judgment. The district court determined that the Eleventh Amendment provided immunity to the ADOC and to Cameron and Albritton in their official capacities from monetary damages sought under the ACRA and for those sought pursuant to § 1983, and dismissed those claims as to those defendants. Ms. Clegg's Title VII claims against Cameron and Albritton in their individual capacities were dismissed because supervisory employees are not individually liable under Title VII, and the ACRA claims were dismissed against them because ACRA does not impose liability on nonemployers.

The district court then went on to analyze the discrimination claims. It determined that Ms. Clegg failed to demonstrate that an adverse employment action had been taken against her and granted the defendants' motion for summary judgment on those claims. The district court also granted qualified immunity to Albritton and Cameron because there was no evidence of a subjective intent to discriminate against Ms. Clegg. As to the retaliation and USERRA claims, the district court again determined that Ms. Clegg failed to show she was subjected to an adverse employment action and granted summary judgment to the defendants.

Ms. Clegg now appeals the dismissal of her claims, contending that the district court erred in granting Cameron and Albritton qualified immunity and that there were disputed issues of material fact that made it improper to grant summary judgment on the other claims because she had in fact sufficiently demonstrated that she was subjected to an adverse employment action. After careful review, we affirm.

II.

A. Summary Judgment

"We review the grant of summary judgment de novo, using the same standard as the district court, and we view the evidence in the light most favorable to the nonmoving party." Admin. Comm. of Wal-Mart Stores, Inc. Assocs.' Health & Welfare Plan v. Gamboa, 479 F.3d 538, 541 (8th Cir.2007). A moving party is entitled to summary judgment only if there is no genuine issue of material fact demonstrated in the record. Id.; Fed. R.Civ.P. 56(c).

1. Discrimination

Discrimination claims asserted pursuant to § 1983, Title VII, and the ACRA "are analyzed under the burden-shifting framework set forth in McDonnell Douglas."² Maxfield v. Cintas Corp. No. 2(I), 427 F.3d 544, 550 (8th Cir.2005). Using this framework, the plaintiff must first "establish a prima facie case by showing that he or she: (1) is a member of a protected group; (2) was meeting the legitimate expectations of the employer; [and] (3) suffered an adverse employment action; . . . (4) under circumstances permitting `an inference of discrimination.'" Id. (quoting Zhuang v. Datacard Corp., 414 F.3d 849, 854 (8th Cir.2005)). If the plaintiff establishes this prima facie case, then the burden shifts to the employer to "articulate a legitimate, nondiscriminatory reason for the action." Id. If such a reason is proffered, then the employee must provide evidence from which a reasonable fact finder can conclude that the reason offered by the employer "is merely a pretext for [unlawful] discrimination." Id.

The district court determined that Ms. Clegg failed to establish a prima facie case of discrimination because she failed to show she had suffered an adverse employment action, the third element. "`An adverse employment action is a tangible change in working conditions that produces a material employment disadvantage.'" Thomas v. Corwin, 483 F.3d 516, 528 (8th Cir.2007) (quoting Wedow v. City of Kansas City, Mo., 442 F.3d 661, 671 (8th Cir.2006)). This might include "`[t]ermination, cuts in pay or benefits, and changes that affect an employee's future career prospects,'" as well as "`circumstances amounting to a constructive discharge.'" Higgins v. Gonzales, 481 F.3d 578, 584 (8th Cir.2007) (quoting Kerns v. Capital Graphics, Inc., 178 F.3d 1011, 1016-17 (8th Cir.1999)). "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. Id.

The district court analyzed Ms. Clegg's discrimination claims as roughly alleging that she was discriminated against by not being put back into her former position or rate of pay upon her return from military duty, that her duties were altered and reassigned, that she was denied training, that she was given a poor performance evaluation, and that she was not welcomed upon her return or provided with the tools she needed to be productive (such as keys to file cabinets or a telephone and telephone access code). After reviewing the record and the allegations, both individually and cumulatively, we agree with the district court's determination that Ms. Clegg failed to produce evidence showing she suffered an adverse employment action.

While Ms. Clegg contends that she was not returned to her same position or pay grade, the record establishes that Ms. Clegg was reinstated at the same employee grade level she enjoyed prior to her military leave and actually received a higher hourly pay rate as a result of the two cost-of-living adjustments...