Higgins v. Gonzales

• Decision Date: 20 March 2007
• Docket Number: No. 06-2556.,06-2556.
• Parties: Sally HIGGINS, Plaintiff-Appellant, v. Alberto GONZALES, Attorney General of the United States of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

481 F.3d 578

Sally HIGGINS, Plaintiff-Appellant, v. Alberto GONZALES, Attorney General of the United States of America, Defendant-Appellee.

No. 06-2556.

United States Court of Appeals, Eighth Circuit.

Submitted: December 15, 2006.

Filed: March 20, 2007.

Stephanie E. Pochop, argued, Gregory, SD, for appellant.

Mary Trippler, Asst. U.S. Atty., Minne-apolis, MN, for appellee.

Before BYE, COLLOTON, and BENTON, Circuit Judges.

BYE, Circuit Judge.

Sally Higgins, a Native American, was employed by the District of South Dakota (DSD) as an Assistant United States Attorney (AUSA). After her resignation, Higgins brought an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2000e-17 (Title VII) alleging racial discrimination and retaliation. The district court¹ granted summary judgment on both claims finding Higgins failed to establish a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). We affirm.

I

Higgins is an enrolled member of the Oglala Sioux Tribe. In July 1999, she began a two-year term AUSA position² in the United States Attorney (USA) office in Rapid City, South Dakota. At the time, the Rapid City office employed five AUSAs in addition to Higgins—Jeannine Huber, Gregg Peterman, Diana Ryan, Mary Thorstensen, and Mark Vargo—as well as Deputy USA Mara Kohn. Higgins was the only Native American AUSA in the Rapid City office and was one of three Native American employees in the state. Her duties were split evenly between the CIRCLE Project³ and prosecuting criminal cases. She alleges her direct supervisor, Kohn, discriminated against her based on race and thereafter retaliated against her for complaining about such discrimination.

During her two-year term, Higgins alleges Kohn made several comments about Native Americans either in her presence or within her earshot. Specifically, in March 2000, during the trial of tribal members for misspending monies, she contends Kohn asked in her presence: "Aren't there any honest Indians anywhere?" Higgins and another Native American employee, Barbara Dull Knife, informally complained to Ryan, the Equal Employment Opportunity (EEO) contact person in the Rapid City office. Over a year later, Higgins reported this statement to Interim USA Michelle Tapken, shortly after Tapken became Interim USA. Tapken testified she did not investigate EEO policies or advise Higgins to lodge a complaint as she believed too much time had passed. She did confront Kohn about the allegation and asked her to submit a written response. In her response, Kohn denied making the statement. In addition to the "honest Indians" comment, Higgins claims Kohn asked "doesn't anybody work down there?" when trying to call the Department of Public Safety for the Oglala Sioux Tribe and asked "don't they have any cars down there?" referring to the reservation. When Higgins's term was about to expire, she claims Kohn stated: "Your time is almost up. I wouldn't want to be in your shoes." Higgins construed this to mean Kohn felt sorry for her because she assumed Higgins would go to work on the reservation. Finally, she contends Kohn talked with her about two Native American witnesses, stating if they wanted to buy alcohol they would "find a way," and she could get them arrested if they failed to comply with their subpoenas.

Throughout her two-year term, Higgins alleges Kohn failed to provide her with appropriate mentoring, supervision or training, thus "setting her up to fail" as an AUSA. She claims Kohn had an obligation to show her the ropes when she was first hired. She also claims Kohn was nicer to Huber, a new Caucasian AUSA, and provided her with more mentoring and assistance. There was no formal mentoring system in place in the DSD during Higgins's tenure. The record reflects at least some AUSAs believed Kohn did not provide Higgins with appropriate supervision given her lack of trial experience. Peterman testified Higgins made some significant trial mistakes due to her inexperience, and Kohn did not provide her with appropriate support and training post these mistakes having occurred. He also testified, however, he worked with Higgins on these issues after being assigned as her mentor in August 2000. Ryan testified Kohn treated Higgins like a child and treated Huber with more respect. She also testified, however, Kohn treated all of the AUSAs "very badly" and "everybody said [Kohn] treats me like a child. Jeannine [Huber] said it, [Appellant] said it, Gregg [Peterman] said it. She treated everybody like they had no brain and no law degree and we could not function without her." (Appellee App. at 358). Vargo testified Kohn was reluctant to supervise Higgins, but also that "Kohn's style as a supervisor was offensive to all of us" and she was condescending and criticized "whatever you had done." (Appellee App. at 382).

During her tenure, Higgins attended at least five training seminars. Although it is alleged she was denied the privilege of attending an appellate advocacy training seminar, she conceded during her deposition that when she requested permission, the course was not available. The next time it was offered, she was "busy with a trial or something." She did not request permission to attend the course the following year. In August 2000, after a year in her position, Higgins complained to an evaluation team about the lack of a formal mentor. In response, Kohn assigned Peterman to mentor Higgins. Although Peterman's evaluations of Higgins are in the record, and he testified about the mentoring relationship, Higgins testified she was never informed he was her mentor but was simply told by Kohn she was to go to Peterman with questions. Peterman evaluated Higgins's performance in June 2001 in a memo to Tapken. He indicated Higgins was a "very slow learner" with regards to trial practice and procedure and she was not ready to prosecute serious offenses. He did note she had done an adequate job prosecuting juveniles and lower level felonies. He noted: "She will also need to work overtime hours if she wants to attain the level of competency necessary."

Higgins assembled a reasonably good trial record. She handled twenty-five criminal cases during her term, obtaining twenty-one guilty pleas, two convictions in three jury trials, and tried a bench trial which resulted in an acquittal. In 1999 and 2000, she received formal performance evaluations by Kohn which indicated her performance in all categories "meets to exceeds expectations." Higgins argues she was denied a mid-year review in 2001 which affected her pay raise and promotion opportunities. In South Dakota, however, salary increases are determined according to the Administratively Determined Pay Plan under which AUSAs are eligible for pay increases based on their annual reviews rather than their mid-year reviews. Higgins also contends she was denied an annual review in 2001, though such a review would not have been due until early in 2002 and she resigned in October 2001. When Higgins was hired, she was classified as a Grade 25 based on her five years of experience. With locality pay, her salary was $55,052. During her tenure, she received the same cost-of-living pay raises as the other AUSAs and additionally received a promotion from Grade 25 to Grade 27, increasing her total salary to $62,885—a raise substantially greater than the raise given to the other AUSA ranked as "meets to exceeds expectations" during the annual cycle.

During her term in the Rapid City office, Higgins claims Kohn kept a "shadow file" on her where she documented Higgins's progress and kept copies of her draft work product. Kohn testified she kept notebooks and draft work product for each AUSA. There is some evidence in the record of Kohn having "stepped up" her documentation of Higgins after she learned Higgins told Peterman about the "honest Indians" comment and told employees in the Pierre office as to Kohn being a racist. Higgins also claims Kohn "papered" her file with complaints. Specifically, she notes Kohn reported to then-USA Ted McBride about both: 1) an alleged racially discriminatory remark Higgins made about white people, and 2) Higgins's alleged leak of confidential information in a drug case. In addition, Kohn sent a memo to Tapken (at her request) denying she made the "honest Indians" statement. Higgins's file also contains two memos to Kohn drafted by Peterman regarding complaints lodged against Higgins by a magistrate judge as to her trial performance.

Higgins contends Kohn specifically kept track of when she came in and left the office. Other AUSAs testified Kohn had the receptionist keep track of everyone's whereabouts. Finally, Higgins claims Kohn made demeaning comments about her performance. She contends Kohn's comments impacted her career potential in the new term position she was seeking in the Pierre office, discussed below, because her new supervisor, Deputy USA David Zuercher, was poisoned by Kohn's characterization of Higgins's work. Zuercher testified he was familiar with Higgins's Rapid City work through his discussions with other AUSAs and Kohn and was reluctant to have her work for him because of concerns about her skills and the judicial complaints made about her. After she was hired in Pierre, however, Zuercher assigned her a mentor and testified he was "terribly surprised" when she resigned. In addition, Higgins's new mentor, Randy Seiler, testified positively about her performance after she began her term in Pierre.

Higgins's term position was set to expire on August 17, 2001, and, because Congress cancelled additional funding for the CIRCLE Project, her specific position could not be renewed. In June 2001, the Justice Department Executive Offices announced a hiring freeze for any district not having a permanent USA. The DSD was impacted by the hiring freeze, as it did not have a permanent USA then, but rather an Interim USA—Tapken. In spite of the...