Helton v. Southland Racing Corp.

• Decision Date: 05 April 2010
• Docket Number: No. 09-1674.,09-1674.
• Citation: 600 F.3d 954
• Parties: Dianna L. HELTON, Appellant, v. SOUTHLAND RACING CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

600 F.3d 954

Dianna L. HELTON, Appellant, v. SOUTHLAND RACING CORPORATION, Appellee.

No. 09-1674.

United States Court of Appeals, Eighth Circuit.

Submitted: December 15, 2009.

Filed: April 5, 2010.

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Mark I. Baretz, argued, West Memphis, AR, for Appellant.

William Stuart Jackson, argued, Little Rock, AR (Gary D. Marts, Jr., on the brief), for Appellee.

Before LOKEN, Chief Judge,¹ ARNOLD, and BENTON, Circuit Judges.

PUBLISHED

PER CURIAM.

Dianna L. Helton sued her former employer, Southland Racing Corporation, for employment discrimination and retaliation under Title VII of the Civil Rights Act of 1964, see 42 U.S.C. §§ 2000e-2(a), 2000e-3(a), and the Arkansas Civil Rights Act (ACRA), see Ark.Code Ann. §§ 16-123-107, 16-123-108. The district court² granted summary judgment to Southland. Ms. Helton appeals. This court affirms.

I.

Ms. Helton, who is white, claimed that Southland subjected her to a hostile work environment and constructively discharged her because of her race and retaliated against her. On this summary-judgment appeal, this court views the evidence and all inferences from it favorably to Ms. Helton. Anda v. Wickes Furniture Co., 517 F.3d 526, 531 (8th Cir.2008).

Southland began as a dog-racing track, later started offering simulcast dog and horse racing, and added gaming (such as video poker) shortly before it hired Ms. Helton as a money room clerk. Southland promoted her to an assistant cage manager seven months later at the same time that it hired a second assistant cage manager, Barbara Van Laan, who is also white. Soon thereafter, Southland added a third and final assistant cage manager, Darlene Dumas, an African-American. Up to 30 Southland employees worked in the cage, which acts as a bank where customers purchase and cash-in their gambling chips. The cage manager supervised the assistants, and the controller, in turn, supervised the cage manager.

Southland hired Melissa Partee as the controller approximately a year after it hired Ms. Helton. When the cage manager resigned, Ms. Partee appointed Ms. Helton as acting cage manager. About once a week, Ms. Partee sent her a demeaning or condescending email; the emails usually criticized her work and intimated that she was incompetent. When Ms. Helton became acting cage manager, Mike Corbin, a vice president at Delaware North Companies (Southland's parent company) and Ms. Partee's supervisor, told Ms. Helton that she should contact him directly any time there was a problem in the cage. She called him shortly afterward to tell him that Ms. Partee was critical of everything that she and the other employees were doing and was micro-managing the cage. He said that he would be coming to Southland shortly and would talk to Ms. Partee; he assured Ms. Helton that he would tell Ms. Partee nothing about their conversation. After Mr. Corbin's visit, Ms. Partee's behavior improved for a while. But Ms. Helton believed that Ms. Partee had somehow learned about her telephone conversation with Mr. Corbin, because Ms. Partee resumed speaking to her in a demeaning way a couple of weeks later.

Ms. Helton applied for the permanent cage manager position when it was posted but Southland hired Shondail Beech, who was white. Ms. Beech had worked in gaming for 15 years and Ms. Helton did not have gaming experience. After Ms. Beech was hired, Southland's general manager assured Ms. Helton that she had been "close" to being hired for the job and that he would ask Ms. Beech to "take Ms. Helton under her wing" to train her for that position when it was next available. Ms. Helton believed that Ms. Partee had tried unsuccessfully to place an African-American in the position and had contacted upper management to prevent Ms. Helton from becoming the cage manager in retaliation for her speaking with Mr. Corbin.

Shortly after Ms. Beech became the cage manager, Ms. Partee called a meeting with her and the assistant cage managers. During the meeting, Ms. Helton asked to have some day shifts, explaining that the previous cage manager had promised her the shifts before she resigned. Ms. Partee refused, announcing that all three assistants would keep the shifts that they were hired to perform. Because the new general manager had directed employees to follow the chain of command when a problem arose, Ms. Helton went to see Ms. Beech after the meeting. She told Ms. Beech that Ms. Partee "hated white people" and that she was discriminating by allowing Ms. Dumas to keep the day shifts. Ms. Beech, who set the schedule, responded that she would "work on it" now that she knew that Ms. Helton had been promised the shifts. When Ms. Helton left the meeting, Ms. Partee was standing right outside the door and was listening to the conversation. Two weeks later, Ms. Helton got the shifts that she had requested.

Ms. Helton had no further difficulties with Ms. Partee until one of the cashiers whom Ms. Helton supervised came up $500 short at the end of her shift. Because Southland dealt in large sums of money, it carefully monitored any discrepancy. If missing funds could not be accounted for, the employee in charge of the cash drawer had to reimburse Southland. Even small discrepancies, which were not unusual, were investigated; a $500 loss was rare. On the day that the shortage occurred, a security guard had asked Ms. Helton to get a package of gum for him from the cashier's drawer while the cashier was gone. As cashiers were prohibited from having gum in their cubicles, Ms. Helton angrily removed the package of gum from the cash drawer and gave it to the guard. When she reported the missing funds to Ms. Beech and Ms. Partee, Ms. Helton also told them about having removed the gum. Ms. Helton was questioned, but a videotape from one of Southland's many surveillance cameras made it plain that Ms. Helton had done nothing wrong. The cashier, who was African-American, was eventually terminated.

Ms. Partee met with Ms. Helton after she was exonerated. Ms. Helton described the meeting as a good one, but she thought that it was unfair for Ms. Partee to tell her that she would be written up if she went into one of the cashier's drawers again. Ms. Helton believed that she was permitted to do so as an assistant cage manager. Ms. Partee also cautioned her that she should be more careful next time "because it could have been a setup."

Ms. Helton came to work a few days later with no thought of quitting her job. She expected to be at Southland in the future and enjoyed her work. Around noon, she received a call from her sister, who also worked at Southland. Her sister said that she had heard from a co-worker, who had heard from another employee, that there had been a meeting the night before during which Ms. Partee "was trying to implicate Ms. Helton in theft" of the $500, even though she was aware that Ms. Helton had been exonerated. She called her husband and talked about what had happened. About two hours after her sister called, Ms. Helton submitted a letter of resignation that said that she had enjoyed working for Southland. She testified that she was aware of what people could do if they wanted to set someone up for a crime. Though she was not concerned about the incident involving the missing money because of the videotape, she knew that Ms. Partee had tools at her disposal, such as computerized records, to use to set her up in the future. After Ms. Helton left, Ms. Partee told another employee that because Ms. Helton had resigned, she must have taken the money.

II.

We first address Ms. Helton's claim that Ms. Partee, subjected her to a hostile work environment because she was white. "When the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). To make out a claim based on a hostile work environment, a plaintiff must present evidence of a working environment "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, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).

To determine whether racial harassment or discrimination is sufficiently severe or pervasive to be actionable, we must consider all of the circumstances, including the frequency and severity of the discriminatory conduct; "`whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839, 843 (8th Cir.2002) (quoting Harris, 510 U.S. at 21-23, 114 S.Ct. 367).

While Southland asserts that the record will not support a finding that Ms. Partee's remarks to Ms. Helton were racially based, this court need not reach that issue here because, regardless of Ms. Partee's motivation, we conclude that the harassment that Ms. Helton suffered was not severe or pervasive enough to affect a term, condition, or privilege of her employment. See Elnashar v. Speedway Super-America, LLC, 484 F.3d 1046, 1058 (8th Cir.2007).

The alleged verbal harassment in this case was neither frequent nor severe. Ms. Helton said that Ms. Partee sent her demeaning or condescending emails about once a week during the two months that Ms. Helton was acting cage manager; Ms. Partee primarily communicated by email. Ms. Partee sent fewer emails after Ms. Beech was hired and she was no longer Ms. Helton's immediate supervisor. Ms. Helton remembered little of the emails' content and what she did remember was not particularly remarkable: Ms. Helton objected to Ms. Partee copying the assistant cage managers on an email that she sent to Ms. Helton reprimanding her for failing to send Ms. Partee information about the assistant...