Court Finds No Adverse Employment Action or Reprisal

The Eighth Circuit U.S. Court of Appeals upheld summary judgment in Higgins v. Gonzales, 8th Cir., No. 06-2556 (3/20/07), finding no discrimination or retaliation. Plaintiff Sally Higgins, a Native American, was employed by the District of South Dakota (DSD) as an Assistant United States Attorney (AUSA). The district court granted summary judgment on both racial discrimination and reprisal as Higgins did not establish a prima facie case. The plaintiff alleged derogatory comments made by a supervisor about race stated in her presence, such as "aren't there any honest Indians anywhere?" She also alleged that she was not provided with sufficient mentoring, supervision or training, and she was not given a mid-year review.

The district court in deciding the case on summary judgment found that Higgins informally complained to an EEO person in the Rapid City office and reported the incident to the interim U.S. Attorney a year later. The interim U.S. Attorney did not advise Higgins to lodge a complaint as she believed too much time had passed, while the supervisor denied that she had ever made the statement. Although the supervisor did not provide good mentoring and allegedly treated Higgins poorly, she treated all her employees equally poorly, the court found. While Higgins was not given a mid-year review in 2001, the mid-year review was not necessary as bonuses were calculated based on yearly reviews. She was not terminated as her two-year appointment had been completed, and she was offered a renewal in a new location that she accepted.

The appeals court upheld summary judgment. It held that the plaintiff failed to prove an adverse employment action and the supervisor did not retaliate against Higgins after the discrimination claim was filed. A job transfer without reduction in pay or benefits was not found to establish an adverse employment action. Not doing a mid-year review for Higgins was not found as discriminatory because the evaluation did not detrimentally alter the terms or conditions of her employment. Although the plaintiff moved to a new office, she was not discriminated against because her salary and benefits did not change and her job responsibilities did not decrease.

This case applied the Burlington Northern & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405 (2006), standard for reprisal, so the plaintiff did not need to claim an adverse employment action related to conditions of employment. Plaintiff needed to prove that her treatment would have dissuaded a reasonable worker from making or supporting a charge of discrimination. The court of appeals held that plaintiff did not meet that lesser burden of proof.

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