SMITH v. FAIRVIEW RIDGES Hosp.

• Decision Date: 27 October 2010
• Docket Number: No. 08-1924.,08-1924.
• Citation: 625 F.3d 1076
• Parties: Shelia Denise SMITH, Appellant, v. FAIRVIEW RIDGES HOSPITAL, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

625 F.3d 1076

Shelia Denise SMITH, Appellant,

v.FAIRVIEW RIDGES HOSPITAL, Appellee.

No. 08-1924.

United States Court of Appeals,Eighth Circuit.

Submitted: May 11, 2010.

Filed: Oct. 27, 2010.

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Daniel C. Hedlund, argued, David A. Goodwin, on the brief, Minneapolis, MN, for appellant.

Daniel Robert Kelly, argued, Minneapolis, MN, for appellee.

Before BYE, MELLOY, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Shelia Smith appeals the district court's ¹ adverse grant of summary judgment on her discrimination claims against her former employer, Fairview Ridges Hospital (“Fairview”). Smith contends that Fairview constructively discharged her after subjecting her to a hostile work environment and retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. We affirm.

I.

Construing the record in the light most favorable to Smith, see Johnson v. AT & T Corp., 422 F.3d 756, 760 (8th Cir.2005), in March 2005, Smith was one of two African-American women employed as transportation aides for the Fairview emergency room (“ER”) in Burnsville, Minnesota. Smith's primary responsibility was to transport patients from the ER to various other locations in the hospital. Her duties also included taking patients' vital signs, cleaning, and several other tasks delegated to her by the ER charge nurse, health unit coordinators, doctors, and technicians.

During the summer of 2005, Patricia Pousard, Smith's immediate supervisor, approached Smith to discuss several concerns Pousard had with Smith's conduct at work, including that Smith: (1) often failed to answer her telephone, (2) took lunch breaks at inappropriate times, (3) was rude to people on the telephone, (4) made too many personal calls, and (5) took frequent cigarette breaks. On August 17, 2005, Pousard prepared a Notice of Corrective Action (“NCA”) ² to address these concerns; however, pursuant to Smith's request, Pousard deferred officially filing the NCA.

In September 2005, Smith's performance review reflected positive comments regarding her performance as a transportation aide. Nonetheless, on November 15, 2005, Pousard officially filed the aforementioned NCA. The NCA was dated August 17, 2005, and addressed the issues that had been discussed with Smith during the summer. On November 28, 2005, Smith received another NCA, reflecting additional concerns with her performance. As a result of the NCAs, Smith was subjected to several limitations, including the requirement that she obtain permission from the charge nurse, the lead health unit coordinator, and an ER technician, prior to taking any breaks.

On December 16, 2005, Smith's doctor wrote a letter to Fairview, indicating that due to a medical condition, Smith could not push or pull more than 70 pounds or lift more than 60 pounds for up to 3 months. As a result, Smith was unable to work as a transportation aide and began picking up shifts as a nursing assistant. This particular nursing assistant position did not entitle Smith to receive benefits. Consequently, Jenny Austerman, a payroll and benefits specialist at Fairview, suggested that Smith take a leave of absence from her position as a transportation aide, instead of working in the nursing assistant position, because Smith could maintain her benefits during a leave of absence. Smith did not follow this advice and continued working as a nursing assistant until her medical restrictions were lifted in early April 2006, when Smith resumed her former transportation aide position. Prior to returning to her job, Smith filed a Notice of a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC), alleging race discrimination and retaliation based on several events occurring during her time at Fairview.

In May 2006, Smith received a third NCA. This NCA reflected Smith's excessive use of unscheduled time off, which had increased beyond the ER's maximum allowance. During her time at Fairview, Smith applied for various employment positions, such as the nursing assistant position in the operating room, but she was not considered for any of these positions based on the number of NCAs that were in her file.

Smith continued working as a transportation aide in the Fairview ER until June 7, 2006, when she resigned. In July 2006, the EEOC issued a letter of determination finding that there was “reasonable cause to believe that [Fairview] subjected [Smith] to a hostile work environment and retaliated against her in violation of Title VII.” (Appellee's App. 149.) On December 1, 2006, Smith filed this action pro se, alleging three Title VII claims: (1) hostile work environment, (2) constructive discharge, and (3) retaliation. ³ The district court appointed counsel for Smith. During the initial pleading stages, and throughout discovery, Smith alleged various instances of racial discrimination including:

1. Soon after she began working at Fairview, a nurse asked Smith if she was Puerto Rican because she spoke Spanish. Smith responded, “No, I'm black, look at me I'm black.” ( Id. at 40.)

2. In April or May 2005, Smith brought fried chicken to a Fairview potluck. Smith overheard a nurse inquire as to who had brought the chicken and then receive the response, “Who else?” ( Id. at 32.) Smith then responded, “What? Only black people eat chicken?” ( Id.) Smith reported the incident to Pousard; however, no corrective action was taken.

3. In May 2005, a picture of “Buckwheat,” a character from the Little Rascals motion picture series who is an African-American child with braided hair, was posted on a door in the ER, along with other employees' childhood photographs. The caption above the picture read, “Guess who this is?” ( Id. at 31.) Smith inferred that the Buckwheat picture was placed on the door to represent her because she had recently braided her hair and was the only African-American employee whose childhood picture was not already on the bulletin board. Smith reported the incident to Pousard; however, no corrective action was taken.

4. In the summer of 2005, a nurse, who was not Smith's supervisor, grabbed a patient chart from Smith's hands and said, “[T]hese black aides don't know what they are doing.” ( Id. at 33.) Smith reported the incident to Pousard; however, no corrective action was taken.

5. In September or October 2005, Smith brought a meal for lunch and upon entering the break room with the food, a coworker complained about a fish odor. The coworker was informed that Smith's meal contained fish, to which the coworker responded, “I smelled food that smelled better than that crap in my garbage.” Smith then informed the coworker that it was an African dish. ( Id. at 34-35.)

6. In October 2005, Smith observed two coworkers using a work computer to view an article ⁴ on the website, The Onion. ⁵ The article discussed Hurricane Katrina and contained an image of a helicopter hovering over houses that were flooded by the hurricane. On the front porch of one of the houses, three people, appearing to be African-American, were pictured. The caption under the picture stated, “FEMA representatives call out to survivors, ‘Show us your tits for emergency rations!’ ” ( Id. at 138.) Smith reported the incident to Pousard; however, no corrective action was taken.

7. In December 2005, Smith observed two coworkers using a work computer to view the website, www. getoffended. com. Smith claimed that one of her coworker's body language and facial expressions had invited her to look at what they were viewing. When she went to the screen, Smith observed two phrases written on t-shirts which stated: (1) “Guns don't kill people, only angry minorities kill people,” and (2) “How do you stop five niggers from raping a white girl? You throw them a basketball.” ( Id. at 36.) That evening, Smith went home and viewed the website again, printing out several pages of its contents. Smith reported the incident to Sally Haack, Fairview's Human Resources Representative, who reminded the coworkers that personal internet use at work was inappropriate.

8. Once she returned to work in April 2006, Smith overheard a nurse say, “If she's unhappy here, why does she come back?” Another nurse responded, “Just like a dog, you beat them and abuse them, they still come back. Just like any good runaway slave would.” ( Id. at 38.) Smith reported the incident to Pousard; however, no corrective action was taken.

9. When Smith and an ER technician were discussing skin care, Smith suggested to the technician that she could use a certain facial cleanser to help with acne, and the technician replied, “People can't see yours because you're black.” ( Id.)

10. At one point, a coworker referred to Smith as “gal.” The coworker told Smith that she called everyone “gal.” Smith informed the coworker that the word reflected racial animosity. ( Id. at 40-41.)

11. After overhearing Smith and a hospital volunteer from Somalia discussing ethnic foods and employment positions at Fairview, Smith's coworker told the volunteer that what she and Smith were discussing was inappropriate. Smith reported the incident to Pousard; however, no corrective action was taken.

12. Teyona Brown, an African-American coworker, testified that she overheard two white employees referring to Smith and stating, “She needs to go back to the ghetto where she came from.” (Appellant's Supp. App. 59.)

The district court granted Fairview's motion for summary judgment as to all of Smith's claims. With regard to the hostile work environment claim, the court “examin[ed] the totality of the circumstances” and held that, assuming all of Smith's claims were true, the alleged harassment was not sufficiently severe or perversive as to affect a term, condition, or privilege of Smith's employment. As to Smith's retaliation claim, the court held that Smith was unable to demonstrate more than temporal proximity between her NCAs...