                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-3991
                         ___________________________

                                 Gary N. AuBuchon

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

         Timothy F. Geithner, in his capacity as Secretary of the Treasury

                        lllllllllllllllllllll Defendant - Appellee
                                       ____________

                      Appeal from United States District Court
                   for the Eastern District of Missouri - St. Louis
                                   ____________

                           Submitted: September 25, 2013
                              Filed: February 26, 2014
                                   ____________

Before WOLLMAN, BEAM, and SMITH, Circuit Judges.
                          ____________

SMITH, Circuit Judge.

      Gary AuBuchon sued Timothy Geithner, in his capacity as the Secretary of the
Treasury, for retaliation under Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e, et seq., based on incidents between him and the Internal Revenue
Service (IRS), his former employer. The district court1 granted Geithner's motion for
summary judgment. AuBuchon argues that the district court erred because a
reasonable jury could determine that the IRS's failure to promote AuBuchon to senior
international agent violated Title VII. AuBuchon avers that the IRS retaliated against
him by, without justification, accusing AuBuchon of sexual harassment, accelerating
his work deadlines, increasing his workload, and failing to provide adequate
performance reviews. AuBuchon also contends that the IRS constructively discharged
him through these actions. We affirm.

                                      I. Background
       Gary AuBuchon, a Caucasian male, worked for the IRS from 1979 until
retirement in December 2009. During the events giving rise to this suit, he was an
international examiner. International examiners are assigned to a team that examines
the tax returns of large taxpayers, and they address various international concerns that
develop throughout the course of an audit or other examination. AuBuchon worked
for the "Town and Country Group" in Missouri.

       The IRS ties promotions from international examiner to senior international
examiner to work that agents complete on individual cases. Cases that merit the
review of a senior international agent are first assigned the position before an
individual is designated to fill it. Thus, an employee seeking a promotion to senior
international examiner must be assigned to a case that has also been assigned a
senior-international-agent position. Thereafter, individuals may apply for that
position for that particular case. Senior international agents are very experienced
agents whose "primary responsibility is to work on the most complex cases that have
been designated as a senior international examiner case."



      1
       The Honorable Audrey G. Fleissig, United States District Judge for the
Eastern District of Missouri.

                                          -2-
      In 2006, AuBuchon, in the "M" case, performed work comparable to that of a
senior international agent because of that case's size and complexity and his
supervisory role in its handling. However, the "M" case had not been assigned a
senior international agent position.

      In March 2007, AuBuchon attempted to apply for a senior-international-
examiner promotion based on the "E" case.2 AuBuchon did not receive the promotion;
instead, the IRS awarded the promotion to an African-American female.
Consequently, AuBuchon filed a complaint with the Equal Employment Opportunity
Commission (EEOC) on December 13, 2007, alleging racial and gender
discrimination. Over the course of the following two years, AuBuchon asserted that
the IRS unlawfully retaliated against him for making this EEOC complaint, ultimately
leading to his involuntary retirement. He sued Geithner, in his capacity as the
Secretary of the Treasury, for retaliation under Title VII.

       The district court granted Geithner's motion for summary judgment. The
district court determined that, under this court's precedents, the IRS need not create
a position for which AuBuchon could be promoted. See Moore v. Forrest City Sch.
Dist., 524 F.3d 879, 885 (8th Cir. 2008). Furthermore, AuBuchon's remaining
allegations of retaliation were insufficient to constitute a material adverse
employment action or a constructive discharge.

                                    II. Discussion
       AuBuchon argues on appeal that the district court erred in granting Geithner's
motion for summary judgment because a reasonable jury could find that (1) the IRS's
failure to promote AuBuchon to senior international agent for his work on the "M"
case was unlawful retaliation that constituted a material adverse employment action;


      2
       The parties did not disclose the full names of the audited companies for
confidentiality reasons.

                                         -3-
(2) the IRS's other retaliatory actions were material adverse employment actions; and
(3) this retaliation resulted in AuBuchon's constructive discharge from the IRS.

       Summary judgment is appropriate when "the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(a). A material fact dispute is genuine when the
evidence would allow a reasonable jury to return a verdict in favor of the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We review a district
court's grant of summary judgment de novo, "considering the facts in the light most
favorable to [the nonmoving party] and giving [that party] the benefit of reasonable
inferences in the record." Holmes v. Trinity Health, 729 F.3d 817, 821 (8th Cir.
2013).

      Title VII prohibits the federal government from discriminating against its
employees and those seeking employment based on race, color, religion, sex, or
national origin. 18 U.S.C. § 2000e-16. The Act prohibits employer retaliation against
employees who engage in a protected activity like filing an EEOC complaint. 42
U.S.C. 2000e-3. To prove a prima facie case of unlawful retaliation, employees must
demonstrate that (1) they engaged in a statutorily protected activity, (2) the employer
took adverse employment action against them, and (3) a causal connection exists
between the employee's protected activity and the employer's adverse employment
action. Gilbert v. Des Moines Area Cmty. Coll., 495 F.3d 906, 917 (8th Cir. 2007).

       The Supreme Court clarified the term "adverse employment action" in
Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). Prior to
Burlington, this court took a relatively restrictive approach to the phrase, holding that
an adverse employment action occurred only where there were "tangible change[s]
in duties or working conditions that constituted a material employment disadvantage."
Manning v. Metro. Life Ins. Co., Inc., 127 F.3d 686, 692 (8th Cir. 1997). In its



                                          -4-
Burlington Northern decision, the Court characterized our standard as the "ultimate
employment decision" standard, limiting retaliatory conduct to acts like "hiring,
granting leave, discharging, promoting, and compensating." 548 U.S. at 60
(quotations, alterations, and citations omitted). The Burlington Northern Court
articulated a new objective standard for determining what constitutes an "adverse
employment action." Id. at 68. The Court held that an employee demonstrating an
adverse employment action must "show that a reasonable employee would have found
the challenged action materially adverse, which in this context means it well might
have dissuaded a reasonable worker from making or supporting a charge of
discrimination." Id. at 67 (quotations and citations omitted); see also Lisdahl v. Mayo
Found., 633 F.3d 712, 720 (8th Cir. 2011).

                                A. Failure to Promote
       AuBuchon argues that the IRS retaliated against him by failing to promote him
to senior international agent. Geithner responds that no position was ever available
because the "M" case had not been approved for a senior international agent. Thus,
"no one, including AuBuchon, could have applied for this nonexistent position." To
determine whether the "E" case is sufficiently complex to receive a senior
international agent, the IRS developed a point system. Case managers assigned the
"E" case points based on its difficulty. These points provided an assessment tool to
those with discretion to determine whether they should assign a senior international
agent to the "E" case; however, attainment of a certain amount of points did not
automatically qualify the "E" case for a senior international agent.

       AuBuchon worked on the "M" case from 2006 until his retirement in 2009. The
point ratings assigned to the "M" case increased each cycle. AuBuchon claims to have
expended over 25 percent of his work time on the "M" case. AuBuchon was one of
the two most experienced international agents on that case, and the other was later
promoted to a senior international agent elsewhere (thus preventing her from being



                                         -5-
re-promoted in competition with AuBuchon). Ronald Webster, AuBuchon's
immediate supervisor, recommended that the "M" case receive a senior-international-
agent position. The "M" case, however, never received such a position. AuBuchon
asserts that the IRS retaliated against him by failing to assign the "M" case a senior-
international-agent position for which he could apply.

       AuBuchon also contends that he would not have actually competed for the
position because he was already the most experienced, lead international agent on the
"M" case. Alternatively, he contends that he was entitled to a temporary raise in
salary to that of a senior international agent while he worked on the "M" case
pursuant to the collective bargaining agreement with the IRS.3

       Unquestionably, failure to promote can constitute an adverse employment
action that would support a plaintiff's retaliation claim. Watson v. O'Neill, 365 F.3d
609, 613 (8th Cir. 2004). In fact, a failure-to-promote claim has satisfied this court's
stricter, pre-Burlington Northern standard. See id. We have never held, however, that
an employer must create a position to which the complaining party may be promoted.
Specifically, we have stated:

      Moore argues that the School District took adverse action against her by
      not promoting her in August 2005. The district court found that there
      was no position available at that time. Because there was no promotional
      opportunity available to Moore in August 2005, no reasonable employee
      would have found the School District's failure to promote her at that



      3
        Article 16, Section 1(B)(1) of the collective bargaining agreement provides,
"An employee who is detailed to a position of higher grade for one (1) full pay period
or more will be temporarily promoted, if eligible, and receive the rate of pay for the
position to which temporarily promoted." Furthermore, Article 16, Section 1(B)(2)
states, "If an employee is not detailed to a position of higher grade, but who performs
higher graded duties for 25% or more of his or her direct time during the preceding
four (4) months," the IRS would temporarily promote the employee if the employee
met other criteria.
                                            -6-
      time to be materially adverse. Consequently, Moore cannot demonstrate
      that she suffered an adverse employment action.

Moore, 524 F.3d at 885.

       The same reasoning applies to the present case. No senior-international-agent
position was available to which AuBuchon could be promoted based on his work in
the "M" case. Because of this lack of promotional opportunity, no reasonable
employee would have found the IRS's failure to promote AuBuchon to be materially
adverse. Furthermore, had a position been created, other international examiners
would have had the opportunity to apply for the position. Although AuBuchon would
have been qualified for the promotion based on his previous work on the "M" case,
it would be mere speculation to conclude that he would have been more qualified than
other potential candidates.

      Finally, although AuBuchon claims alternatively that he is entitled to a
temporary promotion pursuant to his employment contract, he never filed a union
grievance to obtain it. Because AuBuchon never attempted to file a union grievance
or provide an adequate excuse for failing to file a grievance, we will not entertain his
argument. Livadas v. Bradshaw, 512 U.S. 107, 123 (1994) (citing Republic Steel
Corp. v. Maddox, 379 U.S. 650, 652 (1965) ("[F]ederal labor policy requires that
individual employees wishing to assert contract grievances must attempt use of the
contract grievance procedure agreed upon by employer and union as the mode of
redress.")).

       Thus, AuBuchon has failed to demonstrate that the IRS's failure to promote him
to a senior international agent for his work on the "M" case constituted a materially
adverse employment action.

                             B. Other Retaliatory Acts
      AuBuchon alleges that the IRS retaliated against him through a variety of other
actions. These actions include reckless allegations of sexual harassment, acceleration
                                          -7-
of work deadlines, an increase in workload, and insufficient performance reviews.
The government counters that these actions, whether considered individually or
collectively, do not constitute a material adverse employment action.

       As previously noted, Burlington Northern provided a new objective standard
for what constitutes an "adverse employment action." 548 U.S. at 68. The Court
determined that adverse employment action is action that "might have dissuaded a
reasonable worker from making or supporting a charge of discrimination." Id.
(quotations and citations omitted). The Court expounded on this standard. First, an
adverse employment action must be material, not trivial. Id. at 68. Reporting
discriminatory behavior "cannot immunize that employee from those petty slights or
minor annoyances that often take place at work and that all employees experience."
Id. In other words, Title VII does not promulgate a "civility code for the American
workplace." Id. (quotation and citation omitted). Second, the Court specifically
adopted a flexible standard because retaliation often depends upon the particular
circumstances. Id. In other words, "[c]ontext matters." Id.

       Since Burlington, we have discussed the Court's objective standard for material
adverse employment action. To avoid the triviality pitfall, the retaliation must
produce some "injury or harm." Littleton v. Pilot Travel Ctrs., LLC, 568 F.3d 641,
644 (8th Cir. 2009) (quotation and citation omitted). As a result, we have determined
that commencing performance evaluations, sending critical letters that threatened
discipline, falsely reporting poor performance, and failing to mentor and supervise
employees did not establish a prima facie case of retaliation absent materially adverse
consequences to the employee. Id. (collecting cases). In other post-Burlington
Northern cases, we have determined as a matter of law that certain employer actions
were not materially adverse because they did not result in sufficient "injury or harm"
to the employee in question. See Lisdahl, 633 F.3d at 721–22 (threats pertaining to
job security, denial of vacation time, and public ridicule); Sutherland v. Mo. Dept. of
Corr., 580 F.3d 748, 752 (8th Cir. 2009) (reclassification of performance from
"highly successful" to "successful" not accompanied by reduction in pay, salary,
benefits, or prestige); Recio v. Creighton Univ., 521 F.3d 934, 939–40 (8th Cir. 2008)
                                           -8-
(extended duration of employer-mandated counseling, failure to notify of job
vacancy, changes in work schedule, denial of opportunity to teach certain classes,
maintenance of cold temperature in office, and faculty shunning); Gilbert, 495 F.3d
at 917–18 (demotion of provost for plagiarizing, letter directing provost to improve
performance, prevention of selecting guest speaker, and assignment to open cubicle);
Clegg v. Ark. Dept. of Corr., 496 F.3d 922, 929 (8th Cir. 2007) (failure to provide
training and orientation, denying access to work tools, failure to reinstate to prior
position, addition of negative reports and reprimands to personnel file, exclusion from
meetings, and denial of training). Importantly, we have also determined that a
supervisor's warnings that "did not threaten termination or any other employment-
related harm" do not constitute material adverse employment action. Hill v. City of
Pine Bluff, Ark., 696 F.3d 709, 715 (8th Cir. 2012).

       AuBuchon avers that the IRS engaged in several other unlawful retaliatory acts.
First, AuBuchon argues that Webster's reckless allegations of sexual harassment
constituted material adverse employment action. In January 2008, Webster verbally
warned AuBuchon that he had been "paying too much attention to somebody."
Webster refused to divulge further details. A third party approached Webster with
concerns about AuBuchon's behavior; however, Webster never spoke with the alleged
victim about the problem. As a result of the allegations, AuBuchon had "to walk on
eggshells for fear of offending somebody" for a few months. In fact, the alleged
victim approached Webster a few months after his warning to complain that
AuBuchon had turned a cold shoulder toward her, indicating that AuBuchon did not
sexually harass her a few months earlier. Webster would later tell AuBuchon's union
steward that the allegations were "substantiated" although Webster never spoke with
the victim.

       While Webster's actions were reckless and inconsiderate, they never resulted
in any "injury or harm" to AuBuchon. Webster brought the allegations to AuBuchon's
attention and requested that he cease. Webster never threatened AuBuchon or
disciplined him. Webster never noted the allegations in AuBuchon's personnel file.

                                         -9-
As a result, Webster's warnings did not result in sufficient "injury or harm" because
he never "threaten[ed] termination or any other employment-related harm." Id.

       Second, AuBuchon asserts that the IRS unlawfully retaliated against him by
accelerating his work deadlines and assigning him extra work. He also contends that
Webster's subsequent performance reviews of AuBuchon, where AuBuchon attained
the highest ratings of his career, were insufficient because Webster did not adequately
laud AuBuchon's job performance in the narrative portion of the evaluation. These
complaints, whether considered individually or collectively, fail to rise to the level
of unlawful retaliation because they constitute "petty slights or minor annoyances that
often take place at work and that all employees experience." Burlington N., 548 U.S.
at 68. Thus, AuBuchon has failed to demonstrate unlawful retaliation because no
reasonable juror could determine that the IRS undertook material adverse
employment actions.

                              C. Constructive Discharge
       AuBuchon argues that the IRS's retaliatory actions forced him to retire early
due to stress-related health concerns. To prove a claim for constructive discharge,
employees must demonstrate "that the employer deliberately created intolerable
working conditions with the intention of forcing [them] to quit." Sanders v. Lee Cnty.
Sch. Dist. No. 1, 669 F.3d 888, 893 (8th Cir. 2012) (quotation and citation omitted).
However, we have previously observed that plaintiffs have a higher evidentiary
burden to prove a constructive discharge than an adverse employment action. Wilkie
v. Dept. of Health & Human Servs., 638 F.3d 944, 954 (8th Cir. 2011) (citing Tran
v. Trs. of State Colls. in Colo., 355 F.3d 1263, 1270–71 (10th Cir. 2004)). Because
AuBuchon has failed to demonstrate material adverse employment actions based on
these same incidents, he necessarily has failed to demonstrate constructive discharge.

                                III. Conclusion
      Consequently, we affirm the judgment of the district court.
                       ______________________________


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