                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 01-2059
                                  ___________

Joyce Jacob-Mua; Mee-Sook Kim;         *
Ned Klopfenstein,                      *
                                       *
                  Appellants,          *
                                       * Appeal from the United States
       v.                              * District Court for the
                                       * District of Nebraska.
Ann Veneman, Secretary of the United *
States Department of Agriculture,      *
                                       *
                  Appellee.            *
                                  ___________

                            Submitted: November 15, 2001

                                 Filed: May 8, 2002
                                  ___________

Before LOKEN, HEANEY and RILEY, Circuit Judges.
                           ___________

RILEY, Circuit Judge.

      Appellants Joyce Jacob-Mua (Jacob-Mua), Ned Klopfenstein (Klopfenstein),
and Mee-Sook Kim (Kim) appeal the district court’s grant of summary judgment in
favor of the government. The district court concluded appellants failed to present
prima facie cases of disparate treatment, hostile work environment, and retaliation.
We affirm the opinion of the district court.1

I.     BACKGROUND
       The district court adopted the government’s statement of undisputed facts,
which we summarize here. Jacob-Mua is an African-American woman who worked
from September 1993 until 1995 as a Technology Transfer Specialist at the Lincoln,
Nebraska, National Agroforestry Center (Agroforestry Center or Center), which is
part of the United States Department of Agriculture’s (USDA) Forest Service. In
1995, Jacob-Mua requested and was granted a detail to the Federal Building in
Lincoln because of alleged racial discrimination at the Agroforestry Center.
Klopfenstein was a GS-12 Research Plant Pathologist with the Agroforestry Center
from February 25, 1990, through November 1997, when he was detailed to a
Moscow, Idaho, laboratory. He continues to work in Idaho as a GS-12 plant
pathologist. Kim was a college graduate research student at the Agroforestry Center
during all times relevant to the law suit. She worked with Klopfenstein on plant
pathology research in Lincoln, and ceased her volunteer services at the Center when
Klopfenstein was sent to Idaho.

       Jacob-Mua alleges that throughout her employment at the Agroforestry Center
she was subjected to her colleagues’ racist comments, she was not given the technical
support she needed to perform the duties of her job, and she was assigned data entry
projects commensurate with the skills of an intern, not an employee with her level of
experience. Jacob-Mua did not complain to her supervisor, Gerald Bratton (Bratton),
that she had been experiencing race discrimination. Bratton claims he was not aware
of any such discrimination until Jacob-Mua filed an employment discrimination
complaint with the EEOC in May 1995.


      1
        The Honorable Richard G. Kopf, Chief Judge, United States District Court
for the District of Nebraska.

                                         -2-
       In June 1995, Klopfenstein wrote a letter to the civil rights office for the
USDA, copying the Lincoln Forest Service Office, and expressed concern about the
office’s intolerance of cultural differences. The agency informed Klopfenstein on
September 5, 1995, that his job was unfunded and that the Forest Service would
attempt to find him another position in the country. He was transferred to Moscow,
Idaho, in November 1997. He claims as a result of his expression of concern about
race relations in the office he was demoted, his laboratory was dismantled, he was
transferred to Moscow against his wishes, he was denied promotion opportunities,
and he was denied salary advances and fringe benefits. Klopfenstein did not suffer
a loss in grade as a result of his transfer to Idaho.

       In 1999, Jacob-Mua, Kim, and Klopfenstein filed an employment
discrimination case against the USDA and various supervisors pursuant to Title VII
of the Civil Rights Act, alleging discrimination based on sex, race, and national
origin, and alleging retaliation. The district court granted summary judgment for the
defendants because 1) the complaint named individual defendants rather than the
agency or heads of the agency; and 2) Klopfenstein had not exhausted his
administrative remedies. The court dismissed Kim’s retaliation complaint because
she was a volunteer and could not be considered an “aggrieved employee.”

       Jacob-Mua and Klopfenstein brought a second Title VII action in 2001,
alleging race discrimination, hostile work environment, and retaliation. The
defendants filed motions to dismiss or alternatively for summary judgment. Jacob-
Mua's and Klopfenstein's opposing evidence was an affidavit by their lawyer
purporting to identify attached documents including copies of affidavits and
correspondence. The district court did not admit or consider the evidence offered by
Jacob-Mua and Klopfenstein because the lawyer's affidavit was not made on personal
knowledge and did not otherwise authenticate the documents attached.




                                         -3-
       The court granted summary judgment in favor of the defendants again because
1) Jacob-Mua failed to establish prima facie cases for her disparate treatment, hostile
work environment, and retaliation claims; and 2) Klopfenstein failed to present
enough evidence to establish a prima facie case of retaliation. Furthermore, the court
concluded the USDA had presented legitimate, non-discriminatory reasons for its
conduct on all counts, which plaintiffs failed to rebut.

II.    DISCUSSION
       The district court’s grant of summary judgment is reviewed de novo. Smith v.
Ashland, Inc., 250 F.3d 1167, 1171 (8th Cir. 2001); Gentry v. Georgia Pac. Co., 250
F.3d 646, 649 (8th Cir. 2001). Summary judgment is appropriate where, viewing the
record in the light most favorable to the nonmoving party, no genuine issue of
material fact exists. See Fed. R. Civ. P. 56(c); Smith, 250 F.3d at 1171. Summary
judgment should be cautiously granted in discrimination cases because such cases
often depend on inferences rather than on direct evidence. Bradley v. Widnall, 232
F.3d 626, 630-31 (8th Cir. 2000) (citing Crawford v. Runyon, 37 F.3d 1338, 1341
(8th Cir. 1994)).

       A.     Kim’s Retaliation Claim
       We first address Kim’s claim that the district court improperly dismissed her
retaliation complaint because she was not an employee under the terms of the anti-
retaliation provisions of Title VII. As a volunteer researcher for the Forest Service
at the Agroforestry Center in Lincoln, Kim could not have been considered an
employee for the purposes of bringing a Title VII claim. She was not paid, did not
receive annual and sick leave benefits or coverage under any federal retirement
program, and she was not entitled to merit promotion, holiday pay, insurance benefits,
or competitive status. Additionally, in connection with her volunteer status, she
signed an “Agreement for Individual Voluntary Services” which explained that her
work would be noncompensable, and that she would not have the status of a federal
employee.

                                         -4-
       Kim concedes she was a volunteer, but also claims the research she obtained
for her dissertation was compensation, allowing her to be considered an employee.
Case law does not support this conclusion. See Graves v. Women’s Prof'l Rodeo
Ass'n, Inc., 907 F.2d 71, 73 (8th Cir. 1990) (holding that compensation in some form
is essential for an employer/employee relationship and prize money obtained by
winning rodeo events was not compensation); O’Connor v. Davis, 126 F.3d 112, 116
(2d Cir. 1997) (holding that compensation is an essential condition in the employer-
employee relationship). We affirm the district court’s dismissal of Kim's claim
because, as a non-employee, she did not have standing to bring a retaliation claim
under Title VII.

        B.     Klopfenstein’s Retaliation Claim
        Title VII prohibits an employer from discriminating against an employee
“because he has opposed any practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C.
§ 2000e-3(a). To establish a claim of retaliation, Klopfenstein must show that 1) he
filed a charge of harassment or engaged in another protected activity; 2) the employer
subsequently took an adverse employment action against him; and 3) the adverse
action was causally linked to his protected activity. Scusa v. Nestle U.S.A. Co., Inc.,
181 F.3d 958, 968 (8th Cir. 1999).

       Although Klopfenstein demonstrated his work at the Agroforestry Center was
significantly disrupted, he has failed to show adverse employment action through a
“material employment disadvantage, such as a change in salary, benefits, or
responsibilities.” Bradley, 232 F.3d at 632 (citations omitted). He alleges that he was
demoted; transferred to Moscow, Idaho, against his wishes; denied promotion
opportunities; denied salary advances and fringe benefits; and that his laboratory was
dismantled. The uncontroverted evidence in the record shows, however, that his

                                          -5-
position was marked for elimination in the ordinary course of business, he was
offered a substitute position, and he did not suffer a loss in grade or pay when
transferred to Idaho. The record also fails to show the USDA’s proffered reasons for
transferring Klopfenstein to Idaho were pretextual. The district court properly
granted summary judgment to the government on this matter.

      C.      Jacob-Mua’s Claims
              1.    Disparate Treatment Claim
       Title VII prohibits an employer from treating an employee differently because
of race with respect to the terms, conditions, or privileges of employment. 42 U.S.C.
§ 2000e-2(a)(1). To present a prima facie claim of disparate treatment, Jacob-Mua
must show 1) she was a member of a protected group; 2) she was meeting the
legitimate expectations of her employer; 3) she suffered an adverse employment
action; and 4) circumstances give rise to an inference of discrimination, as similarly
situated employees, who are not members of the protected group, were treated
differently. Taylor v. Southwestern Bell Tel. Co., 251 F.3d 735, 740 (8th Cir. 2001);
Whitley v. Peer Review Sys., Inc., 221 F.3d 1053, 1055 (8th Cir. 2000). The record
does not support her claim that she suffered an adverse employment action.

       “[A]n adverse employment action is exhibited by a material employment
disadvantage, such as change in salary, benefits, or responsibilities.” LaCroix v.
Sears, Roebuck & Co., 240 F.3d 688, 691 (8th Cir. 2001) (citations omitted); see
Bradley, 232 F.3d at 632. Jacob-Mua claims that because of her race she was given
work assignments not commensurate with her skills, abilities, and job functions,
given inferior equipment by her supervisors, denied attendance at a writing workshop,
and denied a timely promotion. None of these allegations rise to the level of an
adverse employment action. Her grade and pay increased during her course of
employment with the Forest Service, she was allowed to work at the Federal Building
upon her request, she was given permission to hire an intern to assist her with data
entry, and she was granted three months unpaid leave of absence while she looked for

                                         -6-
employment in Georgia. Because Jacob-Mua did not establish she was the object of
adverse employment action, her disparate treatment claim must fail.

              2.     Retaliation Claim
       As to Jacob-Mua’s retaliation claim, we again agree with the district court that
she has failed to show that adverse employment action was taken against her as the
result of her statutorily protected activities under Title VII. The record is void of
evidence indicating she suffered a change in salary, benefits, or responsibilities as a
result of her 1995 EEOC complaint. Without proof of requisite adverse employment
action, the retaliation claim must fail. See Bradley, 232 F.3d at 633.

             3.     Hostile Work Environment Claim
       Hostile work environment harassment occurs when "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 citations omitted). To establish a prima facie case of hostile work
environment harassment by non-supervisory co-workers,2 Jacob-Mua must establish
all of the following: 1) membership in a protected group, 2) the occurrence of
unwelcome harassment, 3) a causal nexus between the harassment and her
membership in the protected group, 4) the harassment affected a term, condition, or


      2
        Although Jacob-Mua attempted to recast her claim as a supervisory hostile
work environment claim at oral argument, the issue was explicitly framed as one of
co-worker hostile work environment both in the pretrial order and the appellant's
briefs. In the pretrial order, Jacob-Mua identified a claim for "disparate treatment
because of her race, by supervisors," but her hostile work environment claim was
directed solely against her co-workers. On appeal, Jacob-Mua's brief and reply brief
discuss the hostile work environment claim only briefly, and no contention is
expressed that her supervisors either created a hostile work environment or allowed
one to exist. We decline Jacob-Mua's belated invitation to reinterpret her claim as
one of supervisory hostile work environment harassment.
                                         -7-
privilege of employment, and 5) the employer knew or should have known of the
harassment and failed to take prompt remedial action. Carter v. Chrysler Corp., 173
F.3d 693, 700 (8th Cir. 1999). We need not examine the first four prongs, because
Jacob-Mua's claim clearly fails on the fifth prong. She did not present evidence her
employer knew or should have known of the harassment.

       Jacob-Mua argues on appeal the facts supporting her claim of harassment are:
1) co-workers caused her to feel isolated in her work environment, 2) a co-worker
yelled at her and threw keys at her, and 3) a co-worker asked her invasive questions
about her race. As Jacob-Mua does not argue on appeal anything else in the record
adds weight to her hostile work environment claim, we limit our analysis to the facts
she asked this court to consider.

        In order for Jacob-Mua's employer to be held liable for the racially harassing
conduct of an employee, Jacob-Mua must show her employer knew or should have
known of the conduct and failed to take prompt remedial action. Id. Jacob-Mua
reported to her supervisor the incident in which a co-worker argued with Jacob-Mua,
yelled at her, and threw keys at her. While the key-throwing incident may have been
racially motivated, in Jacob-Mua's report of the incident to her supervisor, she did not
declare, indicate, or even imply that the altercation had anything to do with race. The
same co-worker who threw the keys also repeatedly asked Jacob-Mua invasive and
arguably racial questions "about being black" such as "how often she "wash[ed] her
hair," and "how much does it cost to braid [her] hair." This co-worker told Jacob-
Mua "slavery wasn't all that bad" and repeatedly interrogated Jacob-Mua with
offensive questions like "[W]hen are [you] leaving?" and "[W]hen are [you] going
back to Africa?" However, Jacob-Mua never informed her supervisor or other
management of these questions. She also did not present evidence her supervisors
were aware of this harassment.




                                          -8-
       Evidence exists that, with respect to Jacob-Mua's hiring, Bratton stated "I have
to accept a black woman as an employee that I don't even want." In a later coffee
room conversation, on a work day when Jacob-Mua was wearing traditional African
clothing, Bratton or another employee said, after Jacob-Mua left the room, "that was
some dress," and each laughed. However, no evidence connects these comments to
any hostile work environment created by Bratton or otherwise allowed to exist by the
USDA.

      During the relevant time period, Jacob-Mua never submitted any written or oral
report to her employer indicating she was the victim of any racial harassment.
Furthermore, the record does not indicate her supervisor or employer should have
known of any racial harassment. Absent evidence in the record indicating her
employer or supervisor knew or should have known of racially harassing conduct,
Jacob-Mua does not have a viable co-worker hostile work environment claim.

III. CONCLUSION
     For the reasons cited above, we affirm the district court’s grant of summary
judgment.



HEANEY, Circuit Judge, dissenting.

       I respectfully dissent. Although I agree with the majority’s well-reasoned
opinion in Parts II A, B, C.1 and C.2, the evidence shows a dispute in material fact
regarding Jacob-Mua’s Title VII claim for hostile work environment harassment by
non-supervisory co-workers. Such disputes must be resolved by a fact-finder. The
record shows Jacob-Mua was singled out and treated in an unlawful manner among
her colleagues because of her race. She presents credible evidence that the conduct
was severe, pervasive, and related to her protected status, and that such conduct
significantly altered the conditions of her employment. Furthermore, the evidence in

                                         -9-
the record would allow a reasonable juror to conclude that her supervisors knew or
should have known that Jacob-Mua was subjected to unlawful harassment that
required prompt remedial action.

       Because the majority determined that Jacob-Mua failed to allege a
procedurally-sound supervisory hostile work environment claim, it focused solely on
her co-workers’ conduct. The court then concluded that Jacob-Mua did not present
evidence that her supervisors were aware of the mistreatment she allegedly suffered
at the hands of her co-workers. In coming to this conclusion it failed to view the facts
in the light most favorable to Jacob-Mua.

        The record shows that supervisors Rietveld and Bratton may have condoned
co-worker Irwin’s unlawful harassment of Jacob-Mua. When Jacob-Mua wore
traditional African clothing, Irwin and Rietveld ridiculed her style of dress. When
civil rights director Clarence Adair spoke to the members of the Agroforestry Center
about racial discrimination in response to “the tensions that were building,” Irwin and
Rietveld publicly said the meeting was a waste of time and questioned why they were
there. In addition, when Irwin threatened Jacob-Mua’s physical safety, she reported
his abusive behavior to Bratton, who informed her he was going to “let [the incident]
slide” without further investigation. It is ludicrous to believe that Jacob-Mua’s
complaints of racial discrimination would have been handled properly by the very
men who participated in the alleged unlawful behavior.

       Furthermore, the record shows that the working environment at the
Agroforestry Center was casual and informal. People worked with their office doors
open, the majority of the employees socialized in the coffee room during their breaks,
and conversations in the hallways and offices seem to have been commonplace.
Irwin’s and Isaacson’s racially harassing behavior could not have gone undetected
easily. Their conduct, combined with evidence that supervisors Bratton and Rietveld
repeatedly failed to come to Jacob-Mua’s defense when she was mistreated by her co-

                                         -10-
workers, would allow a jury to infer that her supervisors knew or should have known
of the alleged racial harassment, requiring immediate remedial action to correct the
hostile work environment at the Agroforestry Center. I would therefore reverse the
district court’s grant of summary judgment on this matter and allow Jacob-Mua’s
hostile work environment claim to proceed to trial.

      A true copy.

            Attest:

                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                       -11-
