Submitted: October 19, 2016
from United States District Court for the District of
Minnesota - St. Paul
GRUENDER, BEAM, and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
Liles brought this action against C.S. McCrossan, Inc. and
C.S. McCrossan Construction, Inc. (collectively
"CSM") asserting a number of civil rights claims.
The district court granted CSM's motion for summary
judgment and Liles appealed. We affirm.
engaged in the construction business and specializes in
providing highway and heavy general contracting to various
levels of government transportation departments. CSM hired
Liles in 2004 following her graduation from college. The
first several years of her employment were generally
positive, and she was promoted from her original role of
project engineer to assistant project manager. During this
time, she had a good relationship with Tom McCrossan, the
owner of CSM. McCrossan took a personal interest in
Liles's career development by taking her to lunch
meetings and attempting to introduce her to influential
people in the construction industry. Her experience changed
toward the end of 2009, however, when she turned down the
romantic advances of fellow employee Tom Peterson, Jr.
("Junior"). According to Liles, after this event,
Junior made a number of lewd comments to her in person and
via email. She reported this conduct to CSM, and the company
reprimanded Junior. After that reprimand, Junior's
conduct ceased and Liles testified that she had no further
communication with Junior after December of 2009.
father, Tom Peterson, Sr. ("Senior"), is the
Underground Division Manager at CSM, and he was known around
CSM as someone who would hold grudges and make people's
"lives at work difficult for a long time." Senior
was apparently so enraged by the fact that Liles reported his
son that Senior thereafter began calling her names such as
"rotten" and "tuna fish." Although he
never said these things directly to her, Liles claims she
heard Senior call her these names to other people between two
and five times in a two-year period between 2010 and 2011.
The final comment she alleges is that he told another
employee to "put the screws to her" in late 2010 or
early 2011. Liles did not report these comments to anyone at
2010, Liles was assigned to work with a woman named Deb Petry
on the Devil's Triangle project in Brooklyn Park,
Minnesota, on which CSM was contracted to construct bridges
across a number of major throughways and a railroad line.
Although Petry was certified as a crane operator, she was
employed by CSM as a crane oiler. At some point, Petry told
Liles that Petry was not getting the training on the lattice
boom crane that she was supposed to receive. After Liles
reported the issue to both the foreman on the project and a
CSM division manager, Petry was still not given training time
on the crane. Liles then told McCrossan, and, shortly
thereafter, Petry was given training on the crane.
fall of 2010, Liles accepted an offer to be an assistant
project manager in charge of Project Controls on the Central
Corridor Light Rail Transit ("CCLRT") project. This
project was a joint venture between CSM and Ames Construction
with the ultimate goal of constructing a transit line between
the cities of Minneapolis and St. Paul. Justin Gabrielson, an
Ames employee, was assigned as the project manager. On the
first day of the project, Gabrielson remarked that "he
had never worked with a female" assistant project
manager, and he asked Liles if "she was going to cry on
him." Over the next few months, Gabrielson made numerous
comments about Liles being attractive and asked her
on one occasion if she needed a hug. He would also stand in
doorways with his arms stretched above his head in such a
manner that his stomach was exposed and ask Liles if it
aroused her. Liles testified that Gabrielson's
inappropriate behavior ceased in February of 2011, and that
she reported some incidents of Gabrielson's behavior to
McCrossan the next month.
the time that Liles began work on the CCLRT project, Manny
Walk became her direct supervisor at CSM. As with Senior,
Walk had a reputation for being a difficult supervisor. Walk
became involved in the CCLRT project at some point early in
2011, and he quickly noticed that Liles was having
difficulties fulfilling many of her job duties. In March,
Gabrielson sent an email to Walk noting that Liles broke down
in tears and that he felt she was "overwhelmed by the
complexity of the job." McCrossan made similar remarks
by email to Walk around that same time. As a result, CSM
transferred Liles into a position performing field work-a
transfer Walk described on April 28, 2011, as
"allow[ing] Mandy the opportunity to gain field
experience . . . [because] [w]e have recognized that
Mandy's skill level is not yet at the position to assume
all duties necessary for [the Project Controls role]."
In an internal memorandum dated May 2, 2011, Walk described
in detail a conversation he had with Liles the day after she
was reassigned to the field. In response to a question from
Liles during that meeting regarding why she had been removed
from her original position, Walk "told her that it was
mainly due to work product performance on the project and the
inability to trust that she had the relevant skills needed .
. . to meet the demands of . . . being Assistant PM."
Walk provided Liles with specific examples of deficient
performance-including work being completed improperly or late
and her failure to follow proper protocols on assignments-and
Liles responded that this was the first she had heard about
these issues. Walk further noted that he told Liles
"that her success lies in her hands and this may be the
last opportunity to move ahead in her role with [CSM]."
performance deficiencies followed her into her new position
in the field. On her "satisfactory" performance
review dated June 25, 2011, Walk wrote that no one calls
Liles when they have problems, an issue he later described as
being indicative of employees not trusting her ability to do
her job. By email on November 8, 2011, Walk sent Liles a
document titled "Performance Improvement Corrective
Action" in which he stated that she was still failing to
perform at an acceptable level with respect to many of the
issues they had discussed in April and May. The document
presented a Corrective Action Plan ("CAP") that
required Liles to complete a number of assignments designed
to test her ability to perform. Liles signed the document,
but she also attached an addendum in which she attempted to
refute or explain every performance issue raised by the CAP.
The parties dispute whether she properly completed the plan.
CSM terminated Liles on January 24, 2012.
filed a charge of discrimination with the Equal Employment
Opportunity Commission, which dismissed the charge and issued
a right-to-sue letter on February 13, 2014. Thereafter, Liles
filed suit in the United States District Court for the
District of Minnesota alleging she experienced "Sex
Harassment, Discrimination, [and] Retaliation" in
violation of Title VII and "Sexual Harassment,
Discrimination, [and] Reprisal" in violation of the
Minnesota Human Rights Act (MHRA). After discovery, CSM moved
for summary judgment on all six claims, and the district
court granted this motion. The court first dismissed
Liles's gender discrimination claims by assuming that she
could establish her prima facie case, but finding that she
had failed to show that CSM's proffered reason for her
termination-her failure to sufficiently perform her work
duties-was pretext. Next, the court dismissed the harassment
claims, concluding that Liles had failed to establish either
that the complained-of incidents altered a term or condition
of her employment or that the harassment was committed on the
basis of her gender. Finally, the court dismissed the
retaliation and reprisal claims because the two instances of
protected conduct that occurred were too remote in time from
the adverse action to support the causation element.
Liles appeals the district court's grant of summary
judgment to CSM, our review is de novo. Guimaraes v.
SuperValu, Inc., 674 F.3d 962, 971 (8th Cir. 2012).
After viewing the facts in the light most favorable to Liles
as the non-moving party, we will affirm if "there is no
genuine dispute as to any material fact and [CSM] is entitled
to judgment as a matter of law." Fed.R.Civ.P. 56(a). In
her notice of appeal, Liles challenges the district
court's grant of summary judgment on all six of her
original claims. However, in her brief, Liles does not make
distinct arguments with respect to her claims for sexual
harassment and gender discrimination under the
MHRA. At any rate, Minnesota generally follows
the federal courts' analysis on these two ...