Fercello v. County Of Ramsey, 09-2587.

Citation612 F.3d 1069
Decision Date29 July 2010
Docket NumberNo. 09-2587.,09-2587.
PartiesClaudia FERCELLO, Plaintiff-Appellant,v.COUNTY OF RAMSEY, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

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Gregg Marlowe Corwin, argued, Margaret A. Luger-Nikolai, on the brief, St. Louis Park, MN, for appellant.

Karen Ann Kugler, Assistant Ramsey County Attorney, argued, St. Paul, MN, for appellee.

Before BYE, MELLOY, and SHEPHERD, Circuit Judges.

MELLOY, Circuit Judge.

This case concerns the district court's 1 grant of summary judgment in Appellant Claudia Fercello's retaliation claim against Ramsey County, her former employer, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), and the Minnesota Human Rights Act, Minn.Stat. § 363A.15.2 Fercello challenges the district court's ruling on a number of grounds. We affirm.

I. Background

The facts of this case arose out of Fercello's employment with the Ramsey County Community Corrections Department (“the Department”). Since April 2003, the Department has been under the direction of Carol Roberts. Within the Department there are a number of divisions, each of which is headed by a deputy director. One of those divisions is the Administrative Services Division (“the Division”). In December 2004, Roberts hired Lee Palmer as the deputy director of the Division.

In March 2005, Palmer hired Fercello to fill the position of “Planning and Evaluation Analyst,” a probationary position that could become permanent after one year. Upon hiring her, Palmer put Fercello's name and phone number on the manager phone list and appointed her to serve on the Division Management Team with Sally Ruvelson, Gale Burke, and Connie Nowacki, other Division employees. Palmer, as well as other supervisors, referred to Fercello as “Manager of Grants and Contracts.”

On Saturday, April 30, 2005, Fercello reported to Roberts that Palmer had sexually harassed her prior to and during her employment with the Division. She informed Roberts that she had told five other people about the harassment prior to reporting it to her. Roberts testified that she was upset to learn that Fercello had waited so long to report the harassment and had disclosed it to others rather than immediately reporting it to her. The following Monday, Roberts began taking the steps necessary to begin an investigation of Palmer's actions. Roberts also met with Palmer and informed him that he was prohibited from making decisions in the Division, holding staff meetings, and having any contact with Fercello. Roberts informed Fercello that she was not required to have any contact with Palmer.

An investigation of Palmer's alleged harassment began on May 3, 2005. During the course of the investigation, Roberts permitted Palmer to continue working at the Division. However, Roberts made an effort to accommodate Fercello's concerns with regard to Palmer. Despite this, Fercello continued to express to Roberts her anxiety over coming into contact with Palmer. Roberts responded by reassuring Fercello that she had restricted Palmer as much as possible, only allowing him to work certain hours and use certain exits. She also offered to put Fercello in contact with Human Resources (“HR”) to discuss her concerns further, an offer on which Fercello did not follow through.

The Department's investigation concluded on June 16, 2005. Around the same time, Roberts limited the people attending the Management Team meetings to senior management employees. Thus, Fercello, Ruvelson, Burke, and Nowacki, who were not senior managers, all stopped receiving invitations to the meetings. Fercello testified that she did not attribute this to her harassment report.

On July 5, 2005, Roberts informed Fercello that Palmer would be terminated, but that she was allowing him to stay with the Division for six months while he found another job. Roberts stated that it was a compassionate decision; she did not want to ruin Palmer financially. The following day, Fercello emailed Roberts, stating that she was “stunned” by this decision. In response to Fercello's concerns, Roberts told Fercello that she could arrange to find Fercello a different office. After Fercello told Roberts that this solution was unacceptable, Roberts met with Fercello to tell her that she had misspoke and “really meant that we would move Lee Palmer's office or Lee out of the office.” Fercello recalls Roberts being frustrated and angry during this meeting. At the end of the meeting, however, Roberts told Fercello that Fercello had correctly handled the matter after bringing it to Roberts's attention and that the report would not impact her future with the Division. Shortly after this meeting, Palmer tendered a letter of resignation. He left the Division on August 30, 2005.

In early August, prior to Palmer's departure, Roberts replaced Palmer with Ruvelson, making Ruvelson Fercello's direct supervisor. Fercello argues that after Palmer left the Division, she experienced a hostile attitude from Roberts and Ruvelson. She claims that during staff meetings, Roberts and Ruvelson would ignore her ideas, interrupt her, and roll their eyes at her. Other employees noticed this behavior as well.

While employed at the Division, Fercello volunteered with the County's specialty courts. During the course of that work, a deputy director expressed concern to Roberts that Fercello was taking positions contrary to the Department during specialty court meetings. In a meeting to address this concern, Roberts told Fercello, “if you intend to stay here, you will have to be part of the team ... and I hope you do.” After contacting a supervising judge regarding Fercello's alleged conduct, Roberts learned that Fercello had not acted inappropriately and allowed Fercello to continue her volunteer work without further interruption.

During the course of Fercello's employment with the Division, there were a number of changes with regard to her parking situation. While reporting to Palmer, Fercello did not have a designated parking spot. Roberts testified that deputy directors, assistant directors, and directors have designated parking spots, but everyone else “works it out” based on seniority. Despite this, when Ruvelson became Fercello's supervisor, she secured a parking spot for Fercello near the Adult Detention Center (“ADC”), along with a number of other employees. After Fercello complained that this parking spot was too secluded and that she might encounter Palmer, Roberts promised to secure a better parking spot “to enhance [Fercello's] safety and sense of wellbeing.” Fercello used this new parking spot until the end of 2005, at which point she resumed parking behind the ADC because there had not been an incident with Palmer. At no point did the County take away this designated parking spot.

Fercello also claims that Ruvelson asked her to log her time differently and more thoroughly than other employees. In late August 2005, Ruvelson sent an email to Nowacki, Burke, and Fercello asking them to maintain time sheets so that Ruvelson could become more familiar with their work schedules and gain a better understanding of how they spent their time. Michael Guevara and Julie Jordan, non-manager “trainers,” were not asked to track their time. Burke described the time-tracking requirement as “quite rigid,” “like almost every hour of our day keeping this daily log.”

In Fall 2005, Ruvelson established an “Action Team” and invited Fercello to be part of it. After several meetings, Ruvelson stopped inviting Fercello. Fercello's name was also removed from the manager email list around this time. Ruvelson stated that she did this because Fercello viewed the Action Team as a burden to her already busy schedule. This position is supported by an email in which Fercello complained about being over-burdened with work, citing the Action Team as one of those burdens.

In October 2005, at the midpoint of Fercello's probationary period, Ruvelson conducted an unofficial review of Fercello. Prior to the review, Ruvelson was concerned about Fercello's workload and had received negative reports concerning Fercello's performance from a number of coworkers and supervisors. As part of the review, Ruvelson solicited “any comments or observations” from employees who had worked with Fercello. Although the review included some positive feedback, it also included a number of negative reports. Based on this information, Ruvelson provided Fercello with an informal performance review, which was not placed in Fercello's file. The review gave Fercello an overall rating of “needs improvement.” Despite this low rating, Ruvelson stated that she hoped Fercello would “take this opportunity to plan how to improve [her] performance in order to maximize the likelihood that [she] would be retained as an employee after [her] probationary period end[ed].” Fercello disputed and continues to dispute the grounds for the criticism in the review.

In December 2005, Ruvelson informed Fercello that she had to change offices to make room for an incoming deputy director from another department. When Fercello first joined the Division, she was placed in the only vacant office, which happened to be a windowed office. Of the five people who had windowed offices, Fercello was the lowest in seniority. Fercello's new office was smaller than her original office and did not have a window.

As Fercello's probationary year came to an end, Roberts decided she would not offer Fercello a permanent position. On Friday, March 10, 2006, nearly eleven months after Fercello's harassment report, Roberts notified Fercello of her decision. The following Monday, however, Roberts revoked Fercello's termination by letter. Roberts testified that she made this change because: (1) she did not feel comfortable terminating Fercello in light of the investigation; and (2) Fercello went through a...

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