                   United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 12-3250
                          ___________________________

                                    Ebony T. Jackman

                          lllllllllllllllllllll Plaintiff - Appellant

                                              v.

Fifth Judicial District Department of Correctional Services; Iowa Department of Corrections

                        lllllllllllllllllllll Defendants - Appellees
                                         ____________

                      Appeal from United States District Court
                   for the Southern District of Iowa - Des Moines
                                   ____________

                               Submitted: April 11, 2013
                                Filed: August 28, 2013
                                    ____________

Before MURPHY, BEAM, and BYE, Circuit Judges.
                          ____________

BEAM, Circuit Judge.

      Ebony Jackman appeals the district court's1 grant of summary judgment in
favor of the State of Iowa in this employment discrimination case. We affirm.

      1
       The Honorable Thomas J. Shields, Chief United States Magistrate Judge,
Southern District of Iowa, sitting by consent of the parties pursuant to 28 U.S.C. §
636(c).
I.    BACKGROUND

       Jackman is an African-American woman who is and has been employed by the
state as a residential officer at the Fort Des Moines Residential Facility since 2000.
She alleges that she has been subjected to a variety of discriminatory conduct and
harassment by co-workers and a supervisor after she complained about an incident
in November 2007 with her direct supervisor, Mary Little. Little complained that she
did not like the three "black women" on her shift because one "whines all the time,"
the second is "late all the time," and the third "wants to leave all the time." Jackman
confronted Little about these comments, and Little confirmed that she was referring
to Jackman as the person who wanted to leave all the time. Jackman filed an internal
written complaint based on this incident. Little also called Jackman at home and told
her that Jackman did not need to coordinate her schedule with her husband's (who
worked at the same place) because she was a "big girl"; suggested that Jackman
switch to a part-time schedule to better care for her familial responsibilities; and also
asked whether Jackman's husband had ever hit Jackman. In another incident, Little
walked into the bathroom where Jackman was in a closed stall getting sick and yelled,
"who's in there?" Other incidents comprising the basis of this lawsuit include a co-
worker's comment that watching the movie "Roots" qualified as studying African-
American culture, and a co-worker's ill-conceived joke suggesting that black people
were prone to domestic violence.

       In addition to the complaint filed against Little in 2007, Jackman filed a written
grievance with her union representative on March 1, 2008, and filed this lawsuit on
September 14, 2009. Specifically, she contends that the following investigations
were in retaliation for her internal complaints and the instant federal court case: for
her alleged misuse of sick leave and for a "count" violation, both in August 2010; and
for abandoning her post and for allegedly intimidating a witness with regard to the
post-abandoning incident, both in 2011. Plaintiff also asserts that she has been
excessively "coached and counseled," and points to her performance log, which is

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twenty-nine pages long, eleven pages longer than the performance logs for eight other
employees combined, as an indication of discrimination and retaliatory conduct. It
is undisputed that the state has never terminated, suspended, or demoted Jackman and
she continues to be employed by the state without a loss in pay or benefits. Jackman
alleges that, due to work-related stress from the described discrimination and
harassment, she has exhausted her leave options and has had to borrow leave from a
leave bank comprised of donated leave from other state workers.

       Jackman filed the current action, alleging sex and race discrimination,
retaliation and sex and race harassment, all in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and also brought a claim for
retaliation in violation of the Family and Medical Leave Act, 29 U.S.C. §§ 2601 et
seq. (FMLA). The state moved for summary judgment and the district court found
that as a matter of law, the state's alleged conduct did not rise to the level of illegal
discrimination or retaliation because Jackman suffered no adverse employment
action. The court also found the alleged harassment was not sufficiently severe or
pervasive to alter a term or condition of Jackman's employment. The district court
dismissed all but one of Jackman's claims on summary judgment. It stayed her FMLA
claim pending an anticipated Supreme Court ruling on the issue of whether states
were entitled to Eleventh Amendment immunity for FMLA claims. While her FMLA
claim was stayed but still pending, Jackman attempted to appeal the Title VII claims
dismissed on summary judgment. We dismissed the appeal, pointing out that we did
not have jurisdiction over the case because one of Jackman's claims was still pending.
Subsequently, the Supreme Court ruled that states were entitled to Eleventh
Amendment immunity against FMLA self-care suits. See Coleman v. Court of
Appeals of Md., 132 S. Ct. 1327 (2012). Accordingly, the parties had a status
conference with the district court to discuss how to proceed with the stayed claim.
This conference occurred on June 27, 2012, and at this conference, Jackman moved
to dismiss her FMLA claim. On July 2, 2012, the district court entered an order
dismissing her FMLA claim without prejudice. No separate judgment was entered

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pursuant to Federal Rule of Civil Procedure 582 following this July 2, 2012, order.
And, the stay originally entered by the district court in 2011 was still in place. Thus,
on August 23, 2012, the district court, sua sponte, entered another order for "Entry
of Amended Judgment," asking the clerk to enter judgment with respect to Counts I,
II and III (the Title VII claims). The district court also lifted the stay of the FMLA
claim and dismissed the FMLA claim without prejudice. This amended judgment was
entered by the clerk on August 24, 2012. It is from this August 24 order that
Jackman appealed on September 19, 2012.3

II.   DISCUSSION

      We review the district court's grant of summary judgment de novo, affirming
only if there is no genuine issue of material fact, and the defendant is entitled to
judgment as a matter of law. Butler v. Crittenden Cnty., Ark., 708 F.3d 1044, 1048
(8th Cir. 2013).




      2
      Rule 58 provides in relevant part that every judgment and amended judgment
must be set out in a separate document. Fed. R. Civ. P. 58(a).
      3
        The state argues that Jackman's appeal is not timely because the July 2, 2012,
order dismissing the FMLA count without prejudice ended the case and triggered the
thirty-day appeal period. Jackman argues that the case was not finally adjudicated
until the district court directed the August 24 court order be entered and that her
appeal, taken within thirty days of that order, is timely. We agree with Jackman that
her appeal is timely, and note that if she had appealed prior to the August 24 order,
her appeal would have been dismissed as premature. See Moore v. St. Louis Music
Supply Co., 526 F.2d 801, 802 (8th Cir. 1975) (holding that appeal was premature
where district court did not yet "enter[] judgment on a separate document as required
by Federal Rule of Civil Procedure 58").

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      A.     Adverse Employment Action

       Jackman brought claims of race and sex discrimination and retaliation, all in
violation of Title VII. However, each of these causes of action fail for the same
reason: she has not suffered an adverse employment action. To establish a prima
facie case of race or sex discrimination, Jackman must show that she: (1) is a member
of a protected class; (2) was meeting her employer's legitimate job expectations; (3)
suffered an adverse employment action; and (4) was treated differently than similarly
situated employees who were not members of her protected class. Norman v. Union
Pac. R.R. Co., 606 F.3d 455, 461 (8th Cir. 2010). To establish a prima facie case4 of
retaliation, an employee has the initial burden of establishing retaliation by showing
that (1) she engaged in protected conduct; (2) she suffered a materially adverse
employment action; and (3) the adverse action was causally linked to the protected
conduct. Pye v. Nu Aire, Inc., 641 F.3d 1011, 1021 (8th Cir. 2011). Further,
retaliation must be the "but for" cause of the adverse employment action. Univ. of
Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013).

      An adverse employment action is defined as a tangible change in working
conditions that produces a material employment disadvantage, including but not
limited to, termination, cuts in pay or benefits, and changes that affect an employee's
future career prospects, as well as circumstances amounting to a constructive
discharge. Wilkie v. Dep't of Health and Human Servs., 638 F.3d 944, 955 (8th Cir.
2011). However, minor changes in duties or working conditions, even unpalatable
or unwelcome ones, which cause no materially significant disadvantage, do not rise


      4
        Our ultimate conclusion would not change if we accepted Jackman's argument
that transcripts of conversations, surreptitiously recorded by Jackman, with her
supervisor at the time, Art Rabon, constitute direct evidence of retaliation. In a
"direct evidence" case, Jackman must still establish that she has suffered a materially
adverse employment action. Young-Losee v. Graphic Packaging Int'l, Inc., 631 F.3d
909, 912 (8th Cir. 2011).

                                         -5-
to the level of an adverse employment action. Id. In the retaliation context, a
materially adverse action is one that "might have dissuaded a reasonable worker from
making or supporting a charge of discrimination." Recio v. Creighton Univ., 521
F.3d 934, 940 (8th Cir. 2008) (quotation omitted).

       Jackman did not establish a prima facie case of sex and race discrimination or
retaliation because she cannot show, as a matter of law, that she suffered an adverse
employment action. She suffered no termination, cut in pay or benefits, or changed
job duties or responsibilities. Wilkie, 638 F.3d at 955. Jackman argues that the
depletion of her sick leave constitutes an adverse employment action. However,
rather than an adverse action, the favorable employment benefits (including the
opportunity to use donated sick leave from the leave bank) afforded by the State of
Iowa to Jackman allowed her to take a substantial amount of leave instead of
requiring her to quit her job. Jackman also asserts that the depleted leave situation
amounts to the same thing as a constructive discharge, except that Jackman has not,
and cannot afford to, quit her job. We disagree and note that Jackman does not allege
she has been forced by the state to take leave, either paid or unpaid, and therefore
cannot establish constructive discharge based upon leave use. See White v.
Honeywell, Inc., 141 F.3d 1270, 1279 (8th Cir. 1998) (holding that forced unpaid
medical leave is analogous to quitting for purposes of the constructive discharge
analysis). Jackman also asserts that the length of her performance log and the number
of coaching and counseling sessions she has endured are materially adverse
employment actions. However, Jackman's argument fails because no adverse action
has been taken as a result of the longer personnel file. See Tademe v. Saint Cloud
State Univ., 328 F.3d 982, 992 (8th Cir. 2003) (employer's act of "papering" file with
false allegations of unprofessional conduct was not adverse because no actions were
taken as a result of the large employment file).

      Finally, Jackman errantly relies upon Kim v. Nash Finch Co., 123 F.3d 1046
(8th Cir. 1997) and Phillips v. Collings, 256 F.3d 843 (8th Cir. 2001), in support of

                                         -6-
her adverse employment action arguments. The Kim plaintiff, unlike Jackman, was
given reduced job duties. 123 F.3d at 1060. And the Phillips plaintiff was subjected
to harsh and extraordinarily lengthy performance evaluations wherein termination
was recommended. 256 F.3d at 848-49. Jackman's situation does not approach the
"particularly extreme set of facts" and "systemic bad treatment" presented in Kim and
Phillips. Higgins v. Gonzalez, 481 F.3d 578, 588 (8th Cir. 2007), abrogated on other
grounds by Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011) (en banc).
Accordingly, the district court properly granted summary judgment in favor of the
state on Jackman's race and sex discrimination and retaliation claims.

      B.     Harassment

       Jackman's remaining claim for relief is for hostile work environment
harassment, based upon her race and her gender. Hostile work environment
harassment occurs "[w]hen the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an abusive working environment."
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotations and citation
omitted). To succeed on a harassment or hostile work environment claim under Title
VII, Jackman must establish: "(1) [s]he is a member of a protected class; (2)
unwelcome harassment occurred; (3) there is a causal nexus between the harassment
and [her] protected-group status; (4) the harassment affected a term, condition, or
privilege of [her] employment; and (5) [the state] knew or should have known of the
harassment and failed to take prompt and effective remedial action." Robinson v.
Valmont Ind., 238 F.3d 1045, 1047 (8th Cir. 2001). The standard for demonstrating
a hostile work environment under Title VII is "demanding," and "does not prohibit
all verbal or physical harassment and it is not a general civility code for the American
workplace." Wilkie, 638 F.3d at 953 (quotations omitted). Considering the totality
of the circumstances, in order to find that the harassment affected a term, condition



                                          -7-
or privilege of employment, Jackman must be able to establish that the conduct was
extreme, such that intimidation and ridicule permeated the workplace. Id.

       The district court found that the conduct described above did not affect a term,
condition or privilege of employment because this conduct was not severe or
pervasive enough to constitute actionable discrimination. We agree that the conduct
described was not severe or pervasive when compared to our many cases on this
issue. The incidents took place during a span of over three years and were relatively
infrequent. See Singletary v. Mo. Dep't of Corr., 423 F.3d 886, 893 (8th Cir. 2005)
(requiring more for actionable harassment than a few instances of allegedly racist
comments over a course of years). Likewise, the incidents are not of such severity
that a reasonable person would consider her work environment to be hostile or
abusive. See Smith v. Fairview Ridges Hosp., 625 F.3d 1076, 1086-87 (8th Cir.
2010) (holding that comments about racial stereotypes were of insufficient severity
to constitute actionable harassment), abrogated on other grounds by Torgerson, 643
F.3d 1031. On their face, Little's and the co-worker's comments are best
characterized as offensive, but not so severe or pervasive as to permeate the
workplace. Id. at 1086. Accordingly, summary judgment was appropriately granted
on the harassment claim.

III.   CONCLUSION

       We affirm the district court.
                       ______________________________




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