Recio v. Creighton University

• Decision Date: 08 April 2008
• Docket Number: No. 07-2460.,07-2460.
• Citation: 521 F.3d 934
• Parties: Roxana RECIO, Appellant, v. CREIGHTON UNIVERSITY, a Nebraska Nonprofit Corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

521 F.3d 934

Roxana RECIO, Appellant, v. CREIGHTON UNIVERSITY, a Nebraska Nonprofit Corporation, Appellee.

No. 07-2460.

United States Court of Appeals, Eighth Circuit.

Submitted: December 10, 2007.

Filed: April 8, 2008.

Kevin J. McCoy, argued, Omaha, NE, for Appellant.

Thomas F. Hoarty, Jr., argued, Omaha, NE, for Appellee.

Before LOKEN, Chief Judge, WOLLMAN, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Appellant Roxana Recio filed this action, alleging that her employer, Creighton University, retaliated against her for filing a discrimination charge. Creighton moved for summary judgment, asserting that Recio had failed to demonstrate the materially adverse action and causation elements of a prima facie case of retaliation and that, even if she had, there was no evidence that Creighton's legitimate explanations for the alleged acts of retaliation were a pretext for retaliation. The district court¹ granted summary judgment to Creighton, and Recio appeals. We affirm.

I.

Creighton University is a private university in Omaha, Nebraska. In 1994, Creighton hired Dr. Roxana Recio as an Associate Professor of Spanish in the Department of Modern Languages and Literatures (the "Department") in the College of Arts and Sciences (the "College"). Recio is of Spanish origin and a naturalized citizen. Creighton also hired Recio's husband, Dr. Enrique Rodrigo, as a Spanish professor. In 1998, Recio was granted tenure as an Associate Professor. As of the time this court heard oral argument in this case, both Recio and her husband retained their positions at Creighton.

In January 2001, members of the Department, including Recio, interviewed Michelle Evers, a candidate for a Spanish professorship. Recio and Evers then engaged in email correspondence that continued from January 2001 to April 2001. Creighton hired Evers; she began teaching in August 2001. Two-and-a-half years later, on February 10, 2004, the Spanish faculty held a section meeting that was attended by both Recio and Evers. On February 12, 2004, Recio made a written complaint about Evers's behavior at the meeting as well as problems that Recio was experiencing in the Department. On February 18, 2004, Evers sent a letter to the dean of the College, stating that she had received "inappropriate and offensive" communications from Recio. The communications referenced by Evers consisted of some of the emails Recio had sent Evers from January to April 2001.

On March 17, 2004, Evers formally complained to Creighton that Recio had sexually harassed her, alleging that: (1) in 2001, shortly after Evers interviewed for employment as a faculty member at Creighton, Recio sent her a series of "obsessive, stalker-like" email communications and made "inappropriate advances ... of a strong sexual nature"; (2) when Evers ended email contact with Recio, Recio "repeatedly and relentlessly tried to re-initiate contact"; and (3) Evers believed that the portion of Recio's February 2004 complaint concerning Evers was in retaliation for Evers's refusal to communicate with Recio. Pursuant to Creighton's policies and procedures, a four-person Sexual Harassment Committee (the "Committee") heard evidence and, on April 22, 2004, issued a report to Creighton's president, Rev. John Schlegel, S.J. ("Fr.Schlegel"). The Committee recommended that Recio's employment be terminated. Although Fr. Schlegel concluded that the Committee's report had "substantial merit," he did not terminate Recio. Rather, on May 12, 2004, Fr. Schlegel placed Recio on probation until May 31, 2005, conditioning her continued employment on Recio: (1) having no communication or contact with Evers; (2) making no statements to others about Evers; (3) completing a program of psychological counseling, approved by the Dean and at her own cost, "for a period of one year ending May 31, 2005"; (4) attending an educational program, also approved by the dean, "dealing with issues of communication, appropriate interaction with others, teamwork, etc."; and (5) submitting to close monitoring and documentation of her conduct in the classroom, attendance at classes, scheduling and maintaining of office hours for students, and her interactions with faculty throughout the year of probation.

Recio and her husband spent the summer of 2004 in Spain, as they had done every summer for the 10 years they had been at Creighton. On July 14, 2004, Recio dual-filed with the Nebraska Equal Opportunity Commission ("NEOC") and the Equal Employment Opportunity Commission ("EEOC"), alleging that Creighton's imposition of probation was based on her Spanish national origin. Creighton received notice of the complaint on July 26, 2004. On August 9, 2004, Creighton wrote Recio to notify her that, because she could not commence the counseling program specified by the terms of her probation while she was in Spain, the one-year program would begin upon her commencement of the program after her return.

On April 15, 2005, when College faculty were to receive their employment contract for the following year, the dean notified Recio that her contract would be delayed because he needed to confer with general counsel as to the appropriate form of her contract as a result of her probationary status. On April 22, 2005, the dean sent Recio a new employment contract that required her agreement to the terms of the August 9, 2004 letter regarding the duration of the counseling program. The dean also noted that, because Recio was again planning to spend the summer of 2005 in Spain, her one-year counseling requirement would not be completed until she resumed counseling upon her return from Spain. Recio, through counsel, objected to the contract's language, and an agreement was reached in which Recio's employment contract stated only that she was "on probation through May 31, 2005." A separate letter agreement addressed the counseling requirement.

On May 10, 2005, Recio dual-filed a second complaint with the NEOC and the EEOC, alleging that Creighton had retaliated against her for filing the July 2004 discrimination charge. Recio completed her probation on May 31, 2005, with no violations. On June 15, 2005, the NEOC, having completed its investigation of the July 2004 discrimination charge, issued a Determination of No Reasonable Cause, stating that "[t]here [was] no evidence to show that the level of discipline was based on [Recio's] national origin."² On May 3 2006, the NEOC terminated the processing of the retaliation charge and, at Recio's request, issued a right-to-sue letter.

Recio filed this action on May 10, 2006, alleging that Creighton retaliated against her for the filing of the July 2004 discrimination complaint in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). 42 U.S.C. §§ 2000e to 2000e-17. Recio seeks injunctive relief prohibiting Creighton from discriminating against her for engaging in conduct protected by Title VII, damages in excess of $100,000, and other relief. Recio's complaint alleges 21 acts of retaliation but she does not challenge the process Creighton used that resulted in her discipline for alleged misconduct or raise any issue of discrimination based on her national origin. The district court divided the alleged retaliatory actions into acts that preceded Recio's retaliation charge and those that followed the charge. However, we note that, in determining whether Creighton retaliated against Recio for filing the July 2004 discrimination complaint, the basis of this Title VII action, it is the date of the July 2004 complaint, not the May 2005 retaliation complaint, that is key.

The" district court granted Creighton's motion for summary judgment, finding that Recio failed to show two of the three elements of a prima facie case of retaliation: (1) the materially adverse element — that a reasonable employee would have found the allegedly retaliatory actions to be materially adverse and (2) the causation element — that Creighton's allegedly retaliatory actions were causally linked to her protected conduct. The district court further found that, even if Recio had demonstrated a prima facie case, Creighton had offered legitimate reasons for each of the 21 allegedly retaliatory actions, and Recio had not provided any evidence that Creighton's reasons were pretexts for retaliation. Recio brings this appeal.

II.

On appeal, Recio contends that the district court erred in granting summary judgment to Creighton because she demonstrated a prima facie case of retaliation and made a showing of pretext, rebutting Creighton's stated legitimate reasons for the allegedly retaliatory actions. Recio further claims that the district court erred by failing to identify the significant number of disputed issues of material fact present in this case; resolving factual disputes in Creighton's favor by inappropriately drawing factual inferences and determinations of credibility in a light most favorable to Creighton; and applying a standard of review improperly slanted in favor of Creighton. We review the district court's grant of summary judgment de novo, taking the evidence in the light most favorable to Recio, as the nonmoving party. Harris v. Brownlee, 477 F.3d 1043, 1046 (8th Cir.2007).

III.

Title VII prohibits retaliation against employees who initiate or participate in a proceeding or investigation that claims their employer violated Title VII. 42 U.S.C. § 2000e-3(a). Under the McDonnell Douglas burden-shifting framework, Recio must first demonstrate a prima facie case of retaliation. Hughes v. Stottlemyre, 506 F.3d 675, 678-79 (8th Cir.2007) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). "A prima facie case of retaliation requires showing that: (1) the employee engaged in protected conduct; (2) reasonable employees would have found the challenged retaliatory action materially adverse; and (3) the materially adverse action was causally linked to the protected...