The full case caption appears at the
end of this opinion. Sandella S. Spears appeals from the district court’s
[FOOTNOTE 1] entry of summary judgmentin favor of her former employer, the Missouri Department of Corrections (theDepartment), on her claims of retaliation and constructive discharge in violation of TitleVII of the Civil Rights Act of 1964, 42 U.S.C. �� 2000e et seq. We affirm. I. Spears began working for the Department in 1987 as a corrections officer at theCentral Missouri Correctional Center (CMCC), located in Jefferson City, Missouri.In June of 1992, Spears filed a charge with the Equal Employment OpportunityCommission (EEOC), alleging that the Department had retaliated against her becauseof an internal complaint of race discrimination she had lodged against Captain W. D.Schmutz. Spears contended that in response to this complaint the Department: (1)conducted an unfair investigation of her allegations against Schmutz and improperlyfound that Spears had willfully filed a false grievance, and (2) refused to grant Spearsa requested transfer to the Kansas City Community Release Center (KCCRC). TheEEOC issued Spears a right to sue letter, but she did not bring suit within 90 days. Spears was transferred to the Jefferson City Correctional Center (JCCC) inAugust of 1992 and shortly thereafter she resigned from the Department. In Januaryof 1993, Spears filed a second charge with the EEOC, reiterating her contention thatshe had been retaliated against for filing a complaint against Schmutz and alsocontending that she had been constructively discharged as a result of the Department’sretaliatory conduct. To support her claims, Spears reasserted the two incidents set forthin her 1992 EEOC charge and also asserted that the Department: (1) unfairly changedher 1992 performance evaluation from a rating of “highly successful” to “successful,”and (2) transferred her to JCCC. The EEOC issued a second right to sue letter, andSpears timely commenced this action. Regarding Spears’s retaliation claim, the district court found that she had failedto establish any adverse employment action and thus had not presented a prima faciecase of retaliation. The court reasoned that Spears was barred from asserting as actsof retaliation the conduct alleged in her 1992 EEOC charge because she had not timelyfiled suit on these acts and that the other retaliatory acts alleged by Spears–thelowering of her performance evaluation and her transfer to JCCC–did not constitute.-3-adverse employment action. As for the constructive discharge claim, the court foundthat, even considering the acts asserted in her 1992 EEOC charge, Spears hadpresented insufficient evidence of an intolerable work environment to support such aclaim. This appeal followed. II. We review a grant of summary judgment de novo. See Henerey v. City of St.Charles, 200 F.3d 1128, 1131 (8th Cir. 1999). Summary judgment is proper where theevidence, when viewed in the light most favorable to the nonmoving party, indicatesthat no genuine issue of material fact exists and that the moving party is entitled tojudgment as a matter of law. See id.; Fed. R. Civ. P. 56(c). A. Retaliation Spears contends that the district court erred in finding that she had failed topresent a prima facie case of retaliation. To establish a prima facie case of retaliation,a plaintiff must show, among other things, that she suffered an adverse employmentaction at the hands of her employer. See Montandon v. Farmland Indus., Inc., 116 F.3d355, 359 (8th Cir. 1997). An adverse employment action is a tangible change inworking conditions that produces a material employment disadvantage. See Cossettev. Minn. Power & Light, 188 F.3d 964, 972 (8th Cir. 1999). Termination, reductionin pay or benefits, and changes in employment that significantly affect an employee’sfuture career prospects meet this standard, see Kerns v. Capital Graphics, Inc., 178F.3d 1011, 1016 (8th Cir. 1999), but minor changes in working conditions that merelyinconvenience an employee or alter an employee’s work responsibilities do not, seeLedergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997). We agree with the district court that Spears has failed to establish any adverseemployment action. As an initial matter, we agree that Spears is barred from asserting. as adverse employment action the retaliatory acts that she alleged in her 1992 EEOCcharge. An employee who receives a right to sue letter from the EEOC has 90 days inwhich to file suit. See 42 U.S.C. � 2000e-5(f)(1). It is undisputed that Spears did notfile suit within 90 days of receiving a right to sue letter on her 1992 charge. Spears istherefore barred from asserting a claim of retaliation based upon the acts asserted inthis charge. See Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222 (8thCir. 1994) (plaintiff who timely filed suit on second EEOC charge was barred fromasserting claims based on events which formed basis of prior EEOC charge that wasnot timely sued upon).
[FOOTNOTE 2] Furthermore, the fact that Spears’s January 1993 EEOC chargeand the ensuing right to sue letter reiterated these acts does not remove this bar. SeeSoso Liang Lo v. Pan Am. World Airways, Inc., 787 F.2d 827, 828 (2nd Cir. 1986)(per curiam) (where plaintiff failed to timely bring suit after receiving right to sue letteron first EEOC charge, subsequent charge and right to sue letter did not revive claimsasserted in first charge). We also agree with the district court that the remaining acts of retaliation allegedby Spears do not constitute adverse employment action. First, Spears’s transfer toJCCC was not an adverse action. It is well established that “[a] transfer involving onlyminor changes in working conditions and no reduction in pay or benefits will notconstitute an adverse employment action.” Ledergerber, 122 F.3d at 1144. InMontandon, for example, we held that a transfer that required the plaintiff to move fromone city to another was not actionable because the transfer did not entail a change inhis salary, benefits, or any other aspect of his employment. See 116 F.3d at 359; see.also Hoffman v. Rubin, 193 F.3d 959, 964 (8th Cir. 1999) (transfer from St. Paul toChicago not adverse employment action because rank, pay, and other benefits wereunaltered). Here, Spears has presented no evidence that her transfer to JCCC had anyimpact on her job title, salary, benefits, or any other material aspect of her employment. Furthermore, Spears’s transfer, unlike those in Montandon and Hoffman, did not evenrequire her to change residence because both CMCC and JCCC are located in JeffersonCity. Spears’s transfer thus was merely an “inconvenience” for purposes of Title VIIand therefore is not actionable. Second, Spears’s “successful” performance evaluation was not an adverseemployment action. A poor performance rating does not in itself constitute an adverseemployment action because it has no tangible effect upon the recipient’s employment.See Cossette, 188 F.3d at 972; Montandon, 116 F.3d at 359. An unfavorableevaluation is actionable only where the employer subsequently uses the evaluation asa basis to detrimentally alter the terms or conditions of the recipient’s employment. SeeEnowmbitang v. Seagate Techn., Inc., 148 F.3d 970, 973-74 (8th Cir. 1998);Montandon, 116 F.3d at 359. In the present case, Spears avers that the Departmentlowered her 1992 performance rating from “highly successful” to “successful”following her complaint against Schmutz, but she has presented no evidence that theDepartment subsequently used the evaluation to her detriment. She contends only thather evaluation “demeaned her in the eyes of her coworkers,” which we have expresslyheld to be insufficient to transform an unfavorable evaluation into an adverseemployment action. See Cossette, 188 F.3d at 972 (evaluation causing loss of statusor prestige not actionable). Spears’s performance evaluation therefore does notconstitute an adverse employment action.
[FOOTNOTE 3] Thus, although Spears may have been disappointed by the changes that tookplace in her employment in 1992, such changes do not constitute adverse employmentaction under Title VII. See Montandon, 116 F.3d at 359 (“[N]ot everything that makesan employee unhappy is an actionable adverse action.”) (quoting Smart v. Ball StateUniv., 89 F.3d 437, 441 (7th Cir. 1996)). Accordingly, we hold that the district courtproperly found that Spears failed to establish a prima facie case of retaliation and thatthe Department is entitled to summary judgment on this claim. B. Constructive Discharge Spears also challenges the district court’s entry of summary judgment on herconstructive discharge claim. “A constructive discharge occurs when an employerdeliberately renders an employee’s working conditions intolerable with the intent offorcing the employee to leave the employment.” Knowles v. Citicorp Mortgage, Inc.,142 F.3d 1082, 1086 (8th Cir. 1998). Whether working conditions are sufficientlyobjectionable to support a claim for constructive discharge is determined by anobjective standard, not the employee’s subjective feelings. See Coffman v. TrackerMarine, L.P., 141 F.3d 1241, 1247 (8th Cir. 1998); West v. Marion Merrell Dow, Inc.,54 F.3d 493, 497 (8th Cir. 1995) (“An employee may not be unreasonably sensitive to[her] working environment.”) (quoting Johnson v. Bunny Bread Co., 646 F.2d 1250,1256 (8th Cir. 1981)). Applying this objective standard, we agree with the district court that Spears hasfailed to present sufficient evidence of an intolerable working environment to avoidsummary judgment. Spears’s performance evaluation and transfer did not render herworking environment intolerable. See Tork v. St. Luke’s Hosp., 181 F.3d 918, 919(8th Cir. 1999) (unfavorable evaluations did not make conditions intolerable); Gartmanv. Gencorp, Inc., 120 F.3d 127, 130 (8th Cir. 1997) (transfer to different facility whereemployee’s title, pay, and benefits remained constant did not create intolerableenvironment). Furthermore, the acts Spears alleged in her 1992 EEOC charge, even.if not barred, do not establish an intolerable working environment. The Department’sdenial of Spears’s request for a transfer to KCCRC did not cause such an environment,see Allen v. Bridgestone/Firestone, Inc., 81 F.3d 793, 796-97 (8th Cir. 1996) (denialof requested transfer did not create intolerable environment), nor did its criticism andreprimand of Spears for submitting a complaint against Schmutz that, even whenviewed in Spears’s favor, was disingenuous, if not false, see Hanenburg v. PrincipalMut. Life Ins. Co., 118 F.3d 570, 575 (8th Cir. 1997) (special scrutiny and criticism ofemployee’s conduct did not make conditions intolerable). Thus, although Spears’s working environment may not have been ideal, wecannot conclude that the Department’s alleged actions, even when viewed together,rendered it so objectionable that a reasonable person would have deemed resignationthe only plausible alternative. See Breeding v. Arthur J. Gallagher & Co., 164 F.3d1151, 1160 (8th Cir. 1999) (“[A] feeling of being unfairly criticized or [having toendure] difficult or unpleasant working conditions are not so intolerable as to compela reasonable person to resign.”) (quoting Carter v. Ball, 33 F.3d 450, 459 (4th Cir.1994)). Accordingly, the district court properly entered summary judgment in favor ofthe Department on Spears’s claim of constructive discharge. :::FOOTNOTES:::
FN1 The Honorable Dean Whipple, United States District Judge for the WesternDistrict of Missouri.
FN2 In Williams, we also noted that claims that are “like or reasonably related” toclaims asserted in an EEOC charge that is timely sued upon may be asserted in ajudicial action based on that charge. See 21 F.3d at 222. However, we declined toapply this rule to claims that had been asserted in a prior EEOC charge that had notbeen timely acted upon, as is the case here. See id. at 222-23 (applying “reasonablyrelated” analysis only to claims that had not been alleged in either a prior EEOC chargeor the charge that was the basis of the present suit).
FN3 While a constructive discharge may constitute an adverse employment action,we need not discuss Spears’s constructive discharge claim in this context because, asdiscussed below, we find her constructive discharge claim to be without merit.
Spears v. Missouri Dept. of Corrections and Human Resources United States Court of Appeals for the Eighth Circuit No. 99-2239 Sandella S. Spears, Appellant, v. Missouri Department of Corrections and Human Resources, Appellee. Appeal From: United States District Court for the Western District of Missouri Submitted: February 18, 2000 Filed: April 28, 2000 Before: WOLLMAN, Chief Judge, BOWMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
