                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                      ___________

                                      No. 98-2670
                                      ___________

Mary D. Austin,                      *
                                     *
           Appellant,                *
                                     * Appeal from the United States
     v.                              * District Court for the
                                     * Eastern District of Arkansas
Minnesota Mining and Manufacturing   *
Company; Jerry Jones,                *
                                     *
           Appellees.                *
                                ___________

                            Submitted:    July 30, 1999

                                 Filed: September 29, 1999
                                     ___________

Before McMILLIAN, RICHARD S. ARNOLD, and HANSEN, Circuit Judges.
                           ___________

McMILLIAN, Circuit Judge.

       Mary D. Austin appeals from the final order entered in the District Court for the
Eastern District of Arkansas granting summary judgment in favor of defendants in
Austin’s employment discrimination action. Austin claimed that defendants failed to
promote her and harassed her on the basis of her race, sex, and age, and then demoted
her in retaliation for filing this action--all in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e-2000e-17. For the reasons stated below, we affirm
in part, reverse in part, and remand.
       Austin, an African-American woman over forty, worked for Minnesota Mining
and Manufacturing Company (3M). She applied for a promotion to the position of
quality helper after seeing a notice advertising the position; the notice indicated that
tests would be given to all applicants. Failing any one of the three tests would
disqualify an applicant from further consideration, and, of those applicants who passed
the tests, the applicant with the most seniority would be awarded the job. Austin failed
each test and was not promoted. In all, eight employees--four females and four males,
of whom four were under forty and three were white--failed to qualify for the position
based on their test scores. Of those who passed, a twenty-one-year- old white male
and a twenty-seven-year-old white male received the same score, and the one with less
seniority received the position.

        Austin maintained that defendants discriminated against her by altering her test
scores so as to disqualify her for the promotion. Austin further maintained that she was
harassed because she was disciplined for violating safety procedures; her supervisors
failed to provide her a portable toilet in the workplace, as promised, when she worked
two-fifths of a mile, round trip, from the nearest restroom; a co-worker told her that her
department was not for women; each quality-helper-applicant’s test scores were
indicated on a report, which was distributed at 3M’s plant; and a derogatory flyer about
Austin and a co-worker was posted. Finally, Austin asserted that she suffered
retaliation because she was reassigned to a position with more physically strenuous
work and less pay after she filed the instant action.

        We review a district court’s grant of summary judgment de novo, and will affirm
if the evidence, viewed in the light most favorable to the nonmoving party, shows that
there is no genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law. See Lynn v. Deaconess Med. Ctr.-West Campus, 160
F.3d 484, 486 (8th Cir. 1998). To withstand a motion for summary judgment, the
nonmoving party need only submit “sufficient evidence supporting a material factual
dispute that would require resolution by a trier of fact.” Hase v. Missouri Div. of

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Employment Sec., 972 F.2d 893, 895 (8th Cir. 1992), cert. denied, 508 U.S. 906
(1993).

       We conclude summary judgment was proper as to Austin’s hostile-work-
environment claim. To succeed on such a claim, Austin had to establish that: (1) she
is a member of a protected group; (2) unwelcome harassment occurred; (3) a causal
nexus existed between the harassment and her protected-group status; (4) the
harassment affected a term, condition, or privilege of employment; and (5) her
employer knew or should have known of the harassment and failed to take prompt and
effective remedial action. See Carter v. Chrysler Corp., 173 F.3d 693, 700 (8th Cir.
1999). Although Austin was understandably upset and embarrassed by the posting of
the derogatory flyer, she failed to show that the posting affected a term, condition, or
privilege of her employment or to rebut defendants’ proof that they promptly removed
the flyer and investigated. The remaining incidents of which Austin complains,
including the distribution of her test scores, were not severe enough to support a
hostile-work-environment claim. See Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 965-
67 (8th Cir. 1999) (although employee experienced unpleasant conduct and rude
comments, employee was not subjected to severe or pervasive harassment that altered
conditions of her employment). We also conclude summary judgment on Austin’s
retaliation claim was proper because Austin did not show that her reassignment was
causally linked to the filing of this action. See id. at 968 (elements of retaliation claim).



       However, we conclude summary judgment on Austin’s failure-to-promote claim
was improper. The elements for a failure-to-promote claim include showing that: (1)
the employee was a member of a protected group; (2) she was qualified and applied for
a promotion to a position for which the employer was seeking applicants; (3) she was
not promoted; and (4) similarly situated employees, not part of the protected group,
were promoted instead. See Lyoch v. Anheuser-Busch Cos., 139 F.3d 612, 614 (8th
Cir. 1998). As Austin has shown the first, third, and fourth elements, the only element

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in dispute is the second: whether Austin was qualified for the promotion based on her
test scores. We believe that Austin has presented sufficient evidence to raise a genuine
issue of material fact whether her test scores were altered.

       Austin testified in her deposition that she assumed she had scored around 90%
on the tests, because she had missed only four questions on the pretest from which she
believed 25% of the test questions had been drawn, and because from her many years
of schooling, she knew what she had answered correctly on tests. She testified further
that she knew her test answers had been changed because the “Xs” marking the
answers were different. See Canada v. Union Elec. Co., 135 F.3d 1211, 1214-16 (8th
Cir. 1997) (employee’s testimony that he believed he had passed oral test and that his
answers had been marked incorrectly, coupled with inconsistent testimony from test
proctors regarding how many questions employee had answered correctly, raised
genuine issue of fact as to whether employee passed test). Defendants submitted
copies of the answer sheets, as well as affidavits from the test proctor and the test
grader, both of whom attested they did not alter Austin’s answers or otherwise tamper
with her answer sheets. We conclude such proof, when compared to Austin’s
testimony disavowing that the answers marked were in her handwriting, created a
genuine dispute on an issue of material fact that should have been resolved by a trier
of fact. See Peter v. Wedl, 155 F.3d 992, 996 (8th Cir. 1998) (genuine issue of
material fact exists if there is dispute of fact, disputed fact is material to outcome of
case, and dispute is genuine, i.e., reasonable jury could return verdict for either party).

       Accordingly, we reverse the grant of summary judgment to defendants on the
failure-to-promote claim, and remand for further proceedings consistent with this
opinion. We affirm the grant of summary judgment to defendants on the hostile-work-
environment and retaliation claims.




                                            -4-
HANSEN, Circuit Judge, concurring in part and dissenting in part.

       I agree that the hostile-work-environment and retaliation claims were properly
dismissed. However, I dissent from the majority’s view that a material factual dispute
exists on the failure-to-promote claim, and I would affirm the dismissal of that claim
as well.

      A true copy.

             Attest:

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




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