Jacob-Mua v. Veneman

Decision Date08 May 2002
Docket NumberNo. 01-2059.,01-2059.
Citation289 F.3d 517
PartiesJoyce JACOB-MUA; Mee-Sook Kim; Ned Klopfenstein, Appellants, v. Ann VENEMAN, Secretary of the United States Department of Agriculture, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Elaine A. Waggoner, Lincoln, NE, argued, for appellants.

Paul D. Boeshart, Asst. U.S. Atty., Lincoln, NE, argued, for appellee.

Before: LOKEN, HEANEY and RILEY, Circuit Judges.

RILEY, Circuit Judge.

Appellants Joyce Jacob-Mua (Jacob-Mua), Ned Klopfenstein (Klopfenstein), and Mee-Sook Kim (Kim) appeal the district court's grant of summary judgment in favor of the government. The district court concluded appellants failed to present prima facie cases of disparate treatment, hostile work environment, and retaliation. We affirm the opinion of the district court.1


The district court adopted the government's statement of undisputed facts, which we summarize here. Jacob-Mua is an African-American woman who worked from September 1993 until 1995 as a Technology Transfer Specialist at the Lincoln, Nebraska, National Agroforestry Center (Agroforestry Center or Center), which is part of the United States Department of Agriculture's (USDA) Forest Service. In 1995, Jacob-Mua requested and was granted a detail to the Federal Building in Lincoln because of alleged racial discrimination at the Agroforestry Center. Klopfenstein was a GS-12 Research Plant Pathologist with the Agroforestry Center from February 25, 1990, through November 1997, when he was detailed to a Moscow, Idaho, laboratory. He continues to work in Idaho as a GS-12 plant pathologist. Kim was a college graduate research student at the Agroforestry Center during all times relevant to the law suit. She worked with Klopfenstein on plant pathology research in Lincoln, and ceased her volunteer services at the Center when Klopfenstein was sent to Idaho.

Jacob-Mua alleges that throughout her employment at the Agroforestry Center she was subjected to her colleagues' racist comments, she was not given the technical support she needed to perform the duties of her job, and she was assigned data entry projects commensurate with the skills of an intern, not an employee with her level of experience. Jacob-Mua did not complain to her supervisor, Gerald Bratton (Bratton), that she had been experiencing race discrimination. Bratton claims he was not aware of any such discrimination until Jacob-Mua filed an employment discrimination complaint with the EEOC in May 1995.

In June 1995, Klopfenstein wrote a letter to the civil rights office for the USDA, copying the Lincoln Forest Service Office, and expressed concern about the office's intolerance of cultural differences. The agency informed Klopfenstein on September 5, 1995, that his job was unfunded and that the Forest Service would attempt to find him another position in the country. He was transferred to Moscow, Idaho, in November 1997. He claims as a result of his expression of concern about race relations in the office he was demoted, his laboratory was dismantled, he was transferred to Moscow against his wishes, he was denied promotion opportunities, and he was denied salary advances and fringe benefits. Klopfenstein did not suffer a loss in grade as a result of his transfer to Idaho.

In 1999, Jacob-Mua, Kim, and Klopfenstein filed an employment discrimination case against the USDA and various supervisors pursuant to Title VII of the Civil Rights Act, alleging discrimination based on sex, race, and national origin, and alleging retaliation. The district court granted summary judgment for the defendants because 1) the complaint named individual defendants rather than the agency or heads of the agency; and 2) Klopfenstein had not exhausted his administrative remedies. The court dismissed Kim's retaliation complaint because she was a volunteer and could not be considered an "aggrieved employee."

Jacob-Mua and Klopfenstein brought a second Title VII action in 2001, alleging race discrimination, hostile work environment, and retaliation. The defendants filed motions to dismiss or alternatively for summary judgment. Jacob-Mua's and Klopfenstein's opposing evidence was an affidavit by their lawyer purporting to identify attached documents including copies of affidavits and correspondence. The district court did not admit or consider the evidence offered by Jacob-Mua and Klopfenstein because the lawyer's affidavit was not made on personal knowledge and did not otherwise authenticate the documents attached.

The court granted summary judgment in favor of the defendants again because 1) Jacob-Mua failed to establish prima facie cases for her disparate treatment, hostile work environment, and retaliation claims; and 2) Klopfenstein failed to present enough evidence to establish a prima facie case of retaliation. Furthermore, the court concluded the USDA had presented legitimate, non-discriminatory reasons for its conduct on all counts, which plaintiffs failed to rebut.


The district court's grant of summary judgment is reviewed de novo. Smith v. Ashland, Inc., 250 F.3d 1167, 1171 (8th Cir.2001); Gentry v. Georgia-Pac. Co., 250 F.3d 646, 649 (8th Cir.2001). Summary judgment is appropriate where, viewing the record in the light most favorable to the nonmoving party, no genuine issue of material fact exists. See Fed.R.Civ.P. 56(c); Smith, 250 F.3d at 1171. Summary judgment should be cautiously granted in discrimination cases because such cases often depend on inferences rather than on direct evidence. Bradley v. Widnall, 232 F.3d 626, 630-31 (8th Cir.2000) (citing Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir.1994)).

A. Kim's Retaliation Claim

We first address Kim's claim that the district court improperly dismissed her retaliation complaint because she was not an employee under the terms of the anti-retaliation provisions of Title VII. As a volunteer researcher for the Forest Service at the Agroforestry Center in Lincoln, Kim could not have been considered an employee for the purposes of bringing a Title VII claim. She was not paid, did not receive annual and sick leave benefits or coverage under any federal retirement program, and she was not entitled to merit promotion, holiday pay, insurance benefits, or competitive status. Additionally, in connection with her volunteer status, she signed an "Agreement for Individual Voluntary Services" which explained that her work would be noncompensable, and that she would not have the status of a federal employee.

Kim concedes she was a volunteer, but also claims the research she obtained for her dissertation was compensation, allowing her to be considered an employee. Case law does not support this conclusion. See Graves v. Women's Prof'l Rodeo Ass'n, Inc., 907 F.2d 71, 73 (8th Cir.1990) (holding that compensation in some form is essential for an employer/employee relationship and prize money obtained by winning rodeo events was not compensation); O'Connor v. Davis, 126 F.3d 112, 116 (2d Cir.1997) (holding that compensation is an essential condition in the employer-employee relationship). We affirm the district court's dismissal of Kim's claim because, as a non-employee, she did not have standing to bring a retaliation claim under Title VII.

B. Klopfenstein's Retaliation Claim

Title VII prohibits an employer from discriminating against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). To establish a claim of retaliation, Klopfenstein must show that 1) he filed a charge of harassment or engaged in another protected activity; 2) the employer subsequently took an adverse employment action against him; and 3) the adverse action was causally linked to his protected activity. Scusa v. Nestle U.S.A. Co., Inc., 181 F.3d 958, 968 (8th Cir.1999).

Although Klopfenstein demonstrated his work at the Agroforestry Center was significantly disrupted, he has failed to show adverse employment action through a "material employment disadvantage, such as a change in salary, benefits, or responsibilities." Bradley, 232 F.3d at 632 (citations omitted). He alleges that he was demoted; transferred to Moscow, Idaho, against his wishes; denied promotion opportunities; denied salary advances and fringe benefits; and that his laboratory was dismantled. The uncontroverted evidence in the record shows, however, that his position was marked for elimination in the ordinary course of business, he was offered a substitute position, and he did not suffer a loss in grade or pay when transferred to Idaho. The record also fails to show the USDA's proffered reasons for transferring Klopfenstein to Idaho were pretextual. The district court properly granted summary judgment to the government on this matter.

C. Jacob-Mua's Claims
1. Disparate Treatment Claim

Title VII prohibits an employer from treating an employee differently because of race with respect to the terms, conditions, or privileges of employment. 42 U.S.C. § 2000e-2(a)(1). To present a prima facie claim of disparate treatment, Jacob-Mua must show 1) she was a member of a protected group; 2) she was meeting the legitimate expectations of her employer; 3) she suffered an adverse employment action; and 4) circumstances give rise to an inference of discrimination as similarly situated employees, who are not members of the protected group, were treated differently. Taylor v. Southwestern Bell Tel. Co., 251 F.3d 735, 740 (8th Cir.2001); Whitley v. Peer Review Sys., Inc., 221 F.3d 1053, 1055 (8th Cir.2000). The record does not support her claim that she suffered an adverse employment action.

"[A]n adverse employment action is exhibited by a material employment disadvantage, such as change in salary,...

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