OPINION OF THE COURT
JORDAN, Circuit Judge.
Myra Johnson appeals from an order of the United States District Court for the District of New Jersey affirming the decision of an Administrative Law Judge ("ALJ") denying Johnson's claim for supplemental security income. For the following reasons, we will affirm.
I. Background
Following a series of hospitalizations for various cardiac, pulmonary, and renal impairments, Myra Johnson filed a claim for supplemental security income on November 18, 2005, alleging disability beginning on October 1, 2005. Her claim was denied on April 12, 2006, and again upon reconsideration on September 27, 2006. At Johnson's request, a hearing was held before an ALJ on March 13, 2008.
Johnson is applying for Supplemental Security Income ("SSI"), as opposed to Social Security Disability Insurance ("SSDI"). While both provide benefits to disabled persons, under SSI, eligibility for benefits and the amount of benefits is based on financial need, 20 C.F.R. § 416.1100, whereas, for SSDI, eligibility and the amount of benefits are based on credits earned for prior Social Security taxable work. 20 C.F.R. § 404.101. The evaluation of the disability itself, however, is the same under either program. Compare 20 C.F.R. § 416.920 with 20 C.F.R. § 404.1520. Likewise, the standard of review is the same. Compare 42 U.S.C. § 405(g) (providing the standard of review for decisions regarding SSDI benefits) with 42 U.S.C. § 1383(c)(3) (stating that review of a decision regarding SSI benefits "shall be subjected to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title").
In conjunction with her hearing, Johnson submitted extensive; medical records. Those records showed that between October 2, 2005 and October 31, 2005, Johnson made three trips to the emergency room, complaining of difficulty breathing as well as back and chest pain. During those visits, Johnson was diagnosed with cardiomegaly, elevated blood pressure, and possible pneumonia. The records also document that she had been inconsistent in taking prescribed medication and that she had tested positive for cocaine use during two of her visits.
On November 8, 2005, Johnson was admitted to the intensive care unit, again complaining of shortness of breath. During her stay, she was diagnosed with cardiomyopathy, hypertension, renal insufficiency, and impaired left ventricular function. Her records showed that she remained noncompliant with her medication and that her symptoms had been exacerbated by substance abuse. After treatment, including drugs and IV fluids, her "labs were normal" and she was "cleared for discharge by cardiology." (AR at 113.) On November 17, 2005, she was sent home clinically stable with instructions for an extensive drug regimen.
She returned to the emergency room on December 7, 2005, complaining of chest and stomach pain after heavy drinking. A chest exam showed normal heart size and rhythm, and her health was reported as good.
On February 27, 2006, Dr. R.C. Patel, a state retained physician, examined Johnson in connection with her disability claim. Dr. Patel's report mentioned Johnson's history of asthma, but his tests showed her pulmonary function to be above 90 percent of expected functionality. He reported that she claimed to experience daily chest pain and had a history of congestive heart failure, but chest x-rays showed nothing abnormal and his examination found normal heart rhythm, with a possible murmur. Based on his examination, he diagnosed Johnson with hypertension, "atypical" chest pain, and histories of asthma and congestive heart failure.
On April 11, 2006, a state retained medical consultant performed a residual functional capacity ("RFC") assessment based on Johnson's medical history. He found that she could lift up to twenty pounds occasionally and ten pounds frequently; she could stand, walk, or sit about six hours in a day; she had no limitations on pushing or pulling; and there were no established limitations on her ability to reach in all directions or to engage in fine or gross manipulation. He determined that she needed to avoid concentrated exposure to pulmonary irritants.
Johnson again reported to the emergency room on June 13, 2007, complaining of chest pain. Examination revealed regular heart rate and rhythm with no abnormal sounds or murmurs. The treating physician described her pain as "very atypical," stating that there was a "[s]trong emotional component" to her complaints and that she "fe[lt] much better after reassurances . . . and want[ed] to go home." (AR at 294, 296.)
On January 21, 2008, Dr. Mandeep Oberei, Johnson's treating physician, ordered tests that showed her left ventricular ejection fraction was 68%, which was considered to be normal. On February 22, 2008, Dr. Oberei submitted a letter on behalf of Johnson's application. He reported that, despite medication, her day-to-day function was still difficult and he believed she was unable to work. On March 2, 2008, Dr. Oberei submitted his own RFC assessment for Johnson, reporting that she could lift only ten pounds, could stand for only three hours daily, and had only limited ability to reach, handle, or push and pull objects. He reported that her impairments did not affect her ability to sit but also reported that she could sit for only four hours daily. For each of these assessments, Dr. Oberei's medical findings were either cursory or absent.
As part of her application, Johnson also completed reports and testified about her pain, daily activities, and other relevant personal information. She reported that she suffered from back pain that sometimes lasted all day. She stated that doing anything other than sitting — even moving her arms — caused tiredness, shortness of breath, chest pains, and dizziness. Regarding her education and work history, Johnson reported that she never completed the 10th grade and that she had not worked since 1987. Finally, Johnson testified that her positive cocaine tests in 2005 must have been false positives based on her prescription medication, as she had not used cocaine for at least thirteen years.
On March 27, 2008, the ALJ issued an opinion finding that Johnson was not disabled and denying her claim. The ALJ arrived at his decision by following the five-step sequential analysis required under 20 C.F.R. § 404.1520. At step one, the ALJ determined that Johnson had not been engaged in any substantial gainful activity since she filed her application. At step two, the ALJ determined that Johnson had severe impairments involving heart disease, renal disease, and asthma. At step three, the ALJ determined that Johnson's impairments did not meet or medically equal the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the "Listings").
At step one, the ALJ considers whether the claimant is engaged in substantial gainful activity. If so, the claimant is not disabled, and the inquiry ends. At step two, the ALJ considers whether the claimant suffers from a severe medical impairment. If not, the claimant is not disabled, and the inquiry ends. At step three, the ALJ considers whether the impairment is equivalent to those listed in 20 C.F.R. Part 404, subpart P, Appendix 1. If it is, the claimant is considered presumptively disabled, and the inquiry ends. If not, the inquiry moves on to step four. At step four, after assessing the claimant's RFC, the ALJ considers whether that RFC enables the claimant to perform past relevant work. If it does, the claimant is not disabled, and the inquiry ends. Finally, at step five, the ALJ considers whether, based on the claimant's RFC, age, education, and work experience there is sufficient work available in the national economy. If so, the claimant is not disabled. Otherwise, the claimant is disabled. 20 C.F.R. § 404.1520(a)(4).
In reaching his step three determination, the ALJ examined Johnson's medical records and concluded that her impairments, whether individually or in combination, each failed to meet a key element of the relevant Listing. For example, he concluded that Johnson's cardiac impairments did not meet the requirements for Listings 4.02 (chronic heart failure) or 4.04 (is chemic heart disease) because she did not "exhibit the diminished level of left ventricular ejection fraction and other dysfunction," "the inability to perform an exercise tolerance test," or other necessary symptoms under those Listings. (AR at 15.) Similarly, he concluded that she did not meet the requirements of 6.02 (impairment of renal function) because she did not "require chronic dialysis, or kidney trans-plantation, or exhibit persistently elevated serum creatinine levels." ( Id.) Finally, he concluded that she did not meet the requirements of 3.03 (asthma), because there was no evidence of "chronic asthmatic bronchitis" and she had not sought "physician intervention, occurring at least once every two (2) months." ( Id.) As a result, the ALJ concluded that "[t]he claimant does not have an impairment or combination of impairments that meets or medically equals any of the listed impairments in [the Listings.]" (AR at 15.)
At step four, the ALJ performed his own RFC assessment, determining that Johnson retained the functional capacity to engage in sedentary work with environmental limitations. In making his assessment, the ALJ considered a significant volume of medical and testimonial evidence, much of which was contradictory. First, the ALJ considered the medical evidence with respect to Johnson's cardiac, renal, and pulmonary impairments. With respect to her cardiac impairments, he found that recent tests showed "[h]er left ventricular systolic function or ejection function was very high (68%)" and that her congestive heart disease had "resolved in November 2005 . . . with no evidence of recurrence or the need for additional hospital admission." (AR at 18.) Likewise, he concluded that her renal insufficiency had resolved "in November 2005 . . . with no evidence of recurrence." ( Id.) He also found that her cardiac and renal symptoms had been exacerbated by non-compliance with her medications and by substance abuse, which weakened her claim of disability. Finally, with regard to her pulmonary impairment, he found that her most recent test showed normal pulmonary function and that, since October 2005, she had not sought any "treatment of . . . asthma-related respiratory distress" and had made "no asthma-related hospital emergency room visits." ( Id.) Consequently, he found that the medical evidence did not show an inability to work.
The ALJ viewed the RFC assessment as being an intermediate task between steps three and four, rather than being part of step four. (AR at 14.) This Court has not definitively stated whether the RFC assessment is an intermediate task or part of step four. Compare, e.g., Titterington v. Bamhart, 174 Fed. Appx. 6, 10 (3d Cir. 2006) ("Before proceeding to step four, the ALJ determined Titterington's RFC") with Johnson v. Comm'r of Soc. Sec., 263 Fed.Appx. 199, 201 (3d Cir. 2008) ("The fourth step is an assessment of the claimant's residual functional capacity.") Because we find it simpler to consider the RFC assessment with step four, we will treat the RFC assessment as part of step four.
The ALJ next rejected Dr. Oberei's RFC determination and his letter stating that Johnson could not work, concluding that those assessments were unpersuasive. The ALJ explained that Dr. Oberei's RFC was internally inconsistent — first stating that there were no restrictions on sitting and then stating that Johnson could sit only four hours in a day — and that Dr. Oberei had failed to cite medical findings to support his assessments. The ALJ also rejected much of Johnson's subjective complaints about her symptoms, finding them to be only "partially credible." (AR at 19.) He found that although Johnson had been diagnosed with heart problems, multiple physicians had called her chest pain "atypical." He found that the extent of her complaints regarding other symptoms ( e.g., that even moving her arms caused shortness of breath) was unsupported by the objective medical evidence and was not credible. He also found that Johnson herself lacked credibility due to her testimony that she had not used cocaine for fourteen years, despite two recent positive tests. In the end, the ALJ lent "partial credence to claimant's . . . complaints," concluding that Johnson's impairments could produce some of her symptoms but that her "statements concerning the intensity, persistence, and limiting effects of those symptoms [were] not credible." (AR at 19.)
The ALJ ultimately concluded that Johnson "retain[ed] the residual functional capacity to perform sedentary work activity with environmental restrictions." (AR at 19.) Specifically, he found that she had the capacity to lift and carry objects weighing up to ten pounds, sit for up to six hours a day, and stand for up to two hours a day, but that she could not be exposed to excessive pulmonary irritants. Completing step four, the ALJ determined that Johnson had no prior work experience within the past fifteen years, and, thus, could not perform her past relevant work.
At step five, the ALJ considered whether work existed in the national economy for someone of Johnson's RFC, age, education, and work experience. At Johnson's hearing, the ALJ had received testimony from a vocational expert to aid in that determination. The ALJ had asked the expert to consider a person with the ability to lift and carry up to ten pounds, sit for up to six hours per day, and stand or walk for up to two hours per day, but without exposure to excessive pulmonary irritants. The expert stated that there were approximately 14,000 jobs available to such a person in Johnson's metro area. The ALJ then asked the expert to consider someone with those same restrictions, but who also had to take frequent breaks to catch her breath. With that additional limitation, the expert said there were no jobs available.
Based on that testimony the ALJ determined that there were sufficient jobs in the national economy for a person of Johnson's RFC, age, education, and work experience. Consequently, the ALJ determined that Johnson was not disabled.
After the Appeals Council denied her subsequent request for review, Johnson appealed to the District Court. The District Court affirmed the ALJ's decision, and Johnson timely filed this appeal.
II. Discussion
The District Court had jurisdiction to review the Social Security Administrations decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). We have jurisdiction pursuant to 28 U.S.C. § 1291.
When reviewing a District Court's affirmance of an ALJ's denial of benefits, we exercise plenary review of the District Court's legal decisions. Allen v. Barnhart, 417 F.3d 396, 397 (3d Cir. 2005). Like the District Court, we review the ALJ's factual findings only to determine if they are supported by substantial evidence. Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). Substantial evidence is defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate." Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). To ensure meaningful review, the ALJ must discuss "the evidence he considered which supports the result" and "the evidence which was rejected," Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981), and must give his reasons for accepting only some evidence while rejecting other evidence. Hargenrader v. Califano, 575 F.2d 434, 437 (3d Cir. 1978).
On appeal, Johnson argues that the ALJ's analysis was deficient with respect to steps three, four, and five. She argues that the step three analysis was deficient because the ALJ failed to account for the combined effect of her impairments. Next, she argues that the step four RFC assessment was deficient because the ALJ improperly disregarded her subjective complaints, improperly dismissed Dr. Oberei's opinions, and failed to articulate a sufficient evidentiary basis for the RFC assessment. Finally, she argues that the step five analysis was deficient because the ALJ failed to give a reason for considering the vocational expert's response to only one of the two hypothetical questions. We address each argument in turn.
A. The ALJ's Step Three Assessment of the Combined Effect of Johnson's Impairments
Johnson argues that the ALJ's step three analysis failed to adequately evaluate the combined effect of her individual impairments. In Burnett v. Commissioner of Social Security, we held that step three requires the ALJ to perform "an analysis of whether and why [the claimant's individual impairments], or those impairments combined, are or are not equivalent in severity to one of the listed impairments." 220 F.3d 112, 119 (3d Cir. 2000). In Jones v. Barnhart, we clarified that " Burnett does not require the ALJ to use particular language or adhere to a particular format," but only to "ensure that there is sufficient development of the record and explanation of findings to permit meaningful review." 364 F.3d 501, 505 (3d Cir. 2004). Guidance also comes from 20 C.F.R. § 404.1526(b)(3), which provides that where a claimant has multiple impairments, the ALJ should "compare [the claimant's] findings with those for closely analogous listed impairments. If the findings related to [the claimant's] impairments are at least of equal medical significance to those of a listed impairment, [the ALJ] will find that [the claimant's] combination of impairments is medically equivalent to that listing."
Here, the ALJ satisfied our standard from Burnett and Jones and adhered to the regulations in 20 C.F.R. § 404.1526(b)(3). The ALJ performed a thorough examination of Johnson's medical records and concluded that each impairment failed to meet a key element of the relevant Listing. These conclusions were supported by detailed findings articulated in the opinion. For example, the ALJ's conclusion that Johnson's heart did not "exhibit the diminished level of left ventricular ejection fraction and other dysfunction" as required by 4.02, was supported by the finding that "[h]er left ventricular systolic function or ejection function was very high (68%)." (AR at 15, 18.) The conclusion that Johnson's asthma did not require "physician intervention, occurring at least once every two (2) months," as required by 3.03, was supported by the finding that Johnson had not sought any "treatment of acute or chronic bouts of asthma-related respiratory distress" and had made "no asthma-related hospital emergency room visits . . . in the past 2% years." (AR at 16, 18.) Similarly, the conclusion that Johnson did not "require chronic dialysis, or kidney transplantation, or exhibit persistently elevated serum creatinine levels," as required by 6.02, was supported by the finding that "the medical record indicates that [Johnson's renal in-sufficiency] resolved in November 2005 . . . with no evidence of recurrence." (AR at 15, 18.)
Based on that analysis, the ALJ concluded that Johnson did not have an "impairment or combination of impairments that [met] or medically equal[ed] any of the listed impairments." (AR at 15.) Thus, it is apparent that the ALJ thoroughly examined the medical evidence, compared it to the Listings, and made the dual determinations that (a) none of Johnson's impairments were individually equivalent to a Listing, and (b) there was no "closely analogous listed impairment[]" for which a "combination of impairments [was] medically equivalent." 20 C.F.R. § 404.1526(b)(3). Those detailed findings demonstrate "sufficient development of the record and explanation of findings to permit meaningful review." Jones, 364 F.3d at 505. B. The ALJ's Step Four RFC Assessment
Our conclusion is reinforced by Johnson's failure to identify any "closely analogous" Listing to which her combined impairments might be medically equivalent. Johnson attempts to do so for the first time in this appeal, arguing that the ALJ should have considered her impairments under Listing 4.03, for hypertension. (Appellant's Brief at 8.) Johnson argues both that (a) the ALJ "omit[ted] this Listing for no apparent reason", and (b) 4.03 required the ALJ to "discuss[] [Johnson's] heart disease in conjunction with her kidney disease." Even if Johnson has not waived these arguments by failing to raise them before the District Court, Johnson is mistaken on both counts. First, the reason for the ALJ's omission is clear: 4.03 had been removed from the Listings in 2006 — two years before the ALJ considered Johnson's claims. See Revised Medical Criteria for Evaluating Cardiovascular Impairments, 71 Fed.Reg. 2318 (Jan. 13, 2006) ("We are deleting the following current cardiovascular listings . . . 4.03, Hypertensive cardiovascular disease."). Second, to the extent the ALJ should have considered 4.03 because it was in effect when Johnson applied for disability, 4.03 did not impose any obligation to combine conditions or require the ALJ to "discuss[] [Johnson's] heart disease in conjunction with her kidney disease," as Johnson asserts. (Appellant's Brief at 8.) Rather, 4.03 was written in the disjunctive — stating that the ALJ should evaluate hypertension "under 4.02 or 4.04 or under the criteria for the affected body system." 20 C.F.R. Part 404, Subpart P, Appendix 1, Paragraph 4.03 (2005) (amended April 13, 2006) (emphasis added).
Johnson articulates three deficiencies with the ALJ's RFC assessment: (1) he improperly disregarded her subjective complaints, (2) he improperly dismissed Dr. Oberei's opinions, and (3) he failed to articulate a sufficient evidentiary basis for the RFC assessment.
1. The ALJ's Consideration of Johnson's Subjective Complaints
While a claimant's subjective complaints must be given serious consideration, Smith v. Califano, 637 F.2d 968, 972 (3d Cir. 1981), they must also be supported by medical evidence. Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992). An ALJ may reject a claimant's subjective complaints when the ALJ "specifie[s] his reasons for rejecting the[] claims and support[s] his conclusion with medical evidence in the record." Matullo v. Bowen, 926 F.2d 240, 245 (3d Cir. 1990).
Here, the ALJ considered Johnson's subjective complaints of both pain and other symptoms. He specifically recognized her complaints of regular chest pain and shortness of breath but found them to be inconsistent with the medical evidence, as two separate doctors found her pain to be "atypical" and Dr. Patel's tests showed her pulmonary function to be normal. The ALJ also found that Johnson lacked credibility due to her insistence that she had not used cocaine despite two recent positive tests. Consequently, the ALJ chose to accept the medical evidence and reject Johnson's testimony. That satisfies the requirements we set forth in Matullo for rejecting a claimant's subjective complaints, and we see no error in the rejection.
2. The ALJ's Consideration of Dr. Oberei's Opinions
Johnson argues that the ALJ also acted improperly in giving no probative weight to Dr. Oberei's opinions. We have held that the opinions of treating physicians should be given great weight, Rocco v. Heckler, 826 F.2d 1348, 1350 (3d Cir. 1987), but that an ALJ "may reject a treating physician's opinion outright . . . on the basis of contradictory medical evidence." Plummer, 186 F.3d at 429. Similarly, under 20 C.F.R. § 416.927(d)(2), the opinion of a treating physician is to be given controlling weight only when it is well-supported by medical evidence and is consistent with other evidence in the record. Otherwise, the opinion should be given weight proportional to the medical evidence presented by the treating physician to support the opinion. 20 C.F.R. § 416.927(d)(3). Because the ALJ found that Dr. Oberei presented no medical findings to support his opinions and because his opinions were inconsistent with the recent medical evidence showing Johnson's normal heart and lung functionality, it was not error for the ALJ to determine that Dr. Oberei's opinions were of no probative value.
3. The Evidentiary Basis for the ALJ's RFC Assessment
Next, Johnson argues that the ALJ failed to articulate a sufficient evidentiary basis for his RFC assessment. We disagree. The ALJ's assessment addressed each of Johnson's impairments, concluding that none of them would preclude all work activity. The ALJ supported his conclusion that her asthma would not preclude work by pointing to tests showing normal pulmonary function and to her lack of treatment for two and a half years. The ALJ supported his conclusion that her cardiac conditions would not preclude work by noting that her most recent diagnostic tests showed normal left ventricular systolic function. He supported his conclusion that neither cardiac nor renal conditions would preclude work by citing the lack of any recurrence of those conditions or need for additional hospital admissions for more than two and a half years. The ALJ also found that Johnson's symptoms had been exacerbated by her failure to take recommended medication, and he cited to 20 C.F.R. § 404.1530, which precludes a finding of disability where a claimant fails to follow prescribed treatment. Finally, and as already discussed, the ALJ had a basis on this record to disregard Dr. Oberei's opinions and Johnson's own subjective complaints. Accordingly, the ALJ offered a sufficient evidentiary foundation for his assessment that Johnson retained the capacity to perform sedentary work with environmental restrictions.
C. The ALJ's Use of the Vocational Expert in Step Five
Finally, Johnson argues that the ALJ failed to explain why he considered the vocational expert's answer to only one of the two hypothetical questions presented. It is true that the ALJ did not make his reason explicit, but only because it was obvious: the ALJ's RFC assessment did not include a need for Johnson to take frequent breaks. As a result, the second hypothetical, which included that restriction, was of no relevance.
III. Conclusion
For the foregoing reasons, we will affirm the District Court's order upholding the ALJ's decision.
hus, Smith is required to make a showing of a working environment "that a reasonable person would find hostile or abusive, and one that [she] in fact did perceive to be so."
Faragher v. City of Boca Raton, 524 U.S. 775, 787,
118 S.Ct. 2275,
141 L.Ed.2d 662 (1998) (
citing Harris, 510 U.S. at 21-22,
114 S.Ct. 367). Among other things, to establish a prima facie case of a hostile work environment, Smith must demonstrate that "the harassment affected a term, condition, or privilege of [her] employment."
Elnashar, 484 F.3d at 1058.
The district court stated it considered the totality of the circumstances. Smith contends, however, that the district court improperly reviewed each incident of racial hostility as an isolated event, instead of analyzing the cumulative effects of the instances of alleged discrimination. In reviewing on appeal the grant of summary judgment to Fairview on Smith's hostile work environment claim, we apply a de novo standard of review, and thus, we are not bound by the district court's method of analysis. See Elnashar, 484 F.3d at 1055 (standard of review). Further, while Smith is correct that "[w]orkplace conduct is not measured in isolation; [and] Whether an environment is sufficiently hostile or abusive' must be judged `by looking at all the circumstances,'" Bowen v. Mo. Dep't of Social Servs., 311 F.3d 878, 884 (8th Cir. 2002) ( quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (per curiam), it is also true that only incidents that "have a racial character or purpose" can support Smith's claim. Singletary v. Mo. Dep't of Corrs., 423 F.3d 886, 893 (8th Cir. 2005) (quotation omitted). The stringent hostile work environment standard is designed to "filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language . . . and occasional teasing." Faragher, 524 U.S. at 788, 118 S.Ct. 2275 (quotation omitted); see Joens v. John Morrell Co., 354 F.3d 938, 941 (8th Cir. 2004) (noting that Title VII does not "create a federal remedy for all offensive language and conduct in the workplace") (quotation omitted)).
1.
Several of the allegations made by Smith — the comments regarding Smith's lunch, acne, and ability to speak Spanish; the coworker's comment about Smith's conversation with the Somali volunteer; and the image on The Onion — at most only tenuously relate to race. In fact, Smith "offers little more than speculation and conjecture" that these incidents "had anything to do with race." Anderson v. Durham D M, LLC, 606 F.3d 513, 519 (8th Cir. 2010) (quotation omitted). Because no "reasonable person would find [these events] hostile or abusive," Faragher, 524 U.S. at 787, 118 S.Ct. 2275, we hold that those allegations do not corroborate Smith's claim that she suffered from a hostile work environment even as they are considered in the totality of the circumstances of Smith's work environment.
To support its conclusion that the district court erred in granting summary judgment, the dissent primarily relies on Bowen, a case it characterizes as analogous to this one. The dissent states that in Bowen, we "reviewed other allegations which were not overtly racial" and included those allegations when deciding that "there was enough evidence for a jury to consider whether the accumulation of the conduct was severe enough to alter a term of the plaintiff's employment." This analogy of our holding in Bowen to this case, however, is misleading, and further review of the facts of the Bowen case will demonstrate why.
In that case, the plaintiff, Wanda Bowen, was hired as a case manager for the Missouri Department of Social Services. Bowen, 311 F.3d at 880. Her immediate supervisor was Francine Lee. From the beginning of Bowen's employment, Bowen and Lee had an acrimonious relationship. As Bowen was leaving work after one especially hostile work day, she said "Good night, Francine," and Lee responded, "You kiss my ass, you white bitch!" Id. at 881. Following that incident, Bowen was assigned to another supervisor, but continued to work in close proximity to Lee. Thereafter, Bowen endured "hostile stares" from Lee "[o]n a near daily basis." Id. When Lee learned that Bowen had brought a cake to work to share with others, Lee threw the cake on the floor, stepped on it, and said to a nearby coworker, "You can damn well tell her that I did it." Id. When Bowen's new supervisor complained to Lee about Bowen, Lee referred to Bowen as a "menopausal white bitch" then Lee immediately threatened Bowen with physical harm and ran towards Bowen, chasing her back to her cubicle. Id. at 881-82.
The dissent argues that these "other allegations" — Lee's hostile stares at Bowen, Lee's destruction of Bowen's cake, Lee's threat of physical harm, and Lee's running at Bowen — lacked an "overtly racial" character but were considered in the determination of "whether the accumulation of the conduct was severe enough to alter a term or the plaintiff's employment."
It is not the role of the courts to consider incidents in isolation, rather we are to consider "all of the circumstances" of the workplace environment. Nor, however, are we to develop a nexus among isolated incidents where no such nexus exists. See Bradley v. Widnall, 232 F.3d 626, 632 (8th Cir. 2000) (affirming district court's grant of summary judgment on hostile work environment claim where plaintiff "was unable to provide any evidence of a nexus between the alleged harassment and her protected status"). This is what distinguishes Bowen from this case. In Bowen, the "other allegations" had a nexus to overt racism as all of the "other allegations" were actions by the same coworker who had called the plaintiff a "white bitch." Further, two of the "other allegations" — the physical threat and the running towards the plaintiff — happened within seconds of the coworker referring to the plaintiff as a "menopausal white bitch."
The dissent also cites Diaz v. Swift-Eckrich, Inc., 318 F.3d 796 (8th Cir. 2003), and Hathaway v. Runyon, 132 F.3d 1214 (8th Cir. 1997), as cases where the court considered incidents that did not demonstrate an overt racial animus in determining if a plaintiff was subjected to a hostile work environment. These cases, like Bowen, are readily distinguishable. In Diaz, we held the various instances of "rude noises, laughter, and statements that [plaintiff] was stupid" to be "part of a course of conduct which [was] tied to evidence of discriminatory animus" because the offensive actions, which included two physical assaults, came from coworkers who had made "early comments . . . demean[ing] Hispanics and specifically referr[ing] to both Hispanics and [the plaintiff] as `stupid.'" 318 F.3d at 800 (quotation omitted). In Hathaway, the plaintiff experienced "snickers and noises" — which were described as a "purring or growling noise made in the throat" — "for a period of eight months." 132 F.3d at 1217, 1222. These offensive sounds came from a co-worker and the coworker's friend after the coworker had made physical sexual advances toward the plaintiff such as "hit[ting] [the plaintiff] on the buttocks with a clipboard" and "approach[ing] [the plaintiff] from behind and squeez[ing] her buttocks while she was waiting for an elevator." Id. at 1217.
In this case, several incidents that Smith argues support her claims of a racially hostile work environment — the comments regarding Smith's lunch, acne, ability to speak Spanish; the coworker's comment about Smith's conversation with the Somali volunteer; and the image on The Onion — have no obvious or overt racial animus. Further, unlike in Bowen, Diaz, and Hathaway, the incidents have no connection to or nexus with an obvious or overt racial incident as they lack any congruency of person or incident. These various allegations are "isolated incidents" that the Supreme Court has held "will not amount to discriminatory changes in the terms and conditions of employment." Faragher, 524 U.S. at 788, 118 S.Ct. 2275 (quotation omitted). For that reason, although considered as part of the "the totality of the circumstances," these incidents do not give rise to a change in Smith's terms or conditions of her employment.
2.
The picture of Buckwheat, the comment about fried chicken, and the reference to the ghetto, although not all shown or recited directly to Smith, carry some inferences that they were racially motivated, especially considering the context of the events. See, e.g., Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir. 2007) (stating that references to "ghetto children" were "perhaps racially inappropriate"); Simmons v. Océ-USA, Inc., 174 F.3d 913, 915 (8th Cir. 1999) ("The term `Buckwheat' is a racial slur when it is directed towards a black employee in the context of an employment relationship."). Furthermore, the evidence clearly indicates that Smith experienced unwelcome racial harassment when exposed to several comments that were explicitly racial in nature. Specifically, the material on the website getoffended.com, the comment regarding "black aides," and the references about runaway slaves unambiguously permit an inference of racial animus. See, e.g., Canady v. Wal-Mart Stores, Inc., 440 F.3d 1031, 1035 (8th Cir. 2006) (noting that "in certain contexts, the term `slave driver" could be considered evidence of racial animus"); Galdamez v. Potter, 415 F.3d 1015, 1024 n. 6 (9th Cir. 2005) (noting that "there are no `talismanic expressions' of racial animus necessary to sustain a harassment claim," and noting that "racially charged `code words' may provide evidence of discriminatory intent by `send[ing] a clear message and carry[ing] the distinct tone of racial motivations and implications.'" ( quoting McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1117 (9th Cir. 2004))); Gipson v. KAS Snacktime Co., 171 F.3d 574, 579 (8th Cir. 1999) (inference of racial animus permissible after a "racially-tinged comment" that referred to someone in terms of "your kind"). Notwithstanding the inappropriate nature of these events, when viewing the totality of circumstances, including (1) "the frequency and severity of the discriminatory conduct," (2) "whether such conduct was physically threatening or humiliating, as opposed to a mere offensive utterance," and (3) "whether the conduct unreasonably interfered with the employee's work performance," Vajdl v. Mesabi Acad, of KidsPeace, Inc., 484 F.3d 546, 551 (8th Cir. 2007), we agree with Fairview's assertion that the evidence does not "satisfy the high threshold of actionable harm" necessary to constitute a hostile work environment, Elmahdi v. Marriott Hotel Servs., Inc., 339 F.3d 645, 653 (8th Cir. 2003) (quotation omitted).
First, the incidents were relatively infrequent, occurring over the span of Smith's 12 months of active employment in the ER. See Bainbridge v. Loffredo Gardens, Inc., 378 F.3d 756, 759-60 (8th Cir. 2004) (finding that racial remarks that were "sporadic, no more than one per month," over a period of two years, some of which were "merely overheard by [the employee]" were not "so severe or pervasive [to] alter[] the terms or conditions of his employment"); Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (8th Cir. 1981) ("More than a few isolated incidents of harassment must have occurred. Racial comments that are merely part of casual conversation, are accidental, or are sporadic do not trigger Title VII's sanctions."). But see Delph v. Dr. Pepper Bottling Co. of Paragould, Inc., 130 F.3d 349, 352, 354 (8th Cir. 1997) (upholding hostile work environment claim where the plaintiff had been subjected to "a steady barrage of racial name-calling at the [defendant's] facility"); Ways v. City of Lincoln, 871 F.2d 750, 754-55 (8th Cir. 1989) (upholding a finding of a hostile work environment where the plaintiff had identified approximately 50 examples of racial harassment).
Next, although we look to the frequency of harassment, it is but one factor of our analysis and even infrequent conduct can be actionable if severe enough. See Bowen, 311 F.3d at 884-85. The severity of the conduct here does not rise to the requisite level needed to establish a hostile work environment. Most of the events involved conduct that was not particularly severe, involved coworkers as opposed to Smith's direct supervisors, and could only be considered non-actionable, "mere offensive utterance[s]." Singletary, 423 F.3d at 893; see Nitsche v. CEO of Osage Valley Elec. Coop., 446 F.3d 841, 846 (8th Cir. 2006) ("To be actionable, the conduct complained of must be extreme in nature and not merely rude or unpleasant."); Carter v. Chrysler Corp., 173 F.3d 693, 702 (8th Cir. 1999) (noting that we also consider the "physical proximity to the harasser, and the presence or absence of other people"). In fact, the record is void of "any of the physically threatening or intimidating behavior that we have found important in some actionable cases." Anderson, 606 F.3d at 520 ( citing Reedy v. Quebecor Printing Eagle, Inc., 333 F.3d 906, 909-10 (8th Cir. 2003) (finding hostile work environment when a death threat was involved)); Bowen, 311 F.3d at 885 ("Lee's serious misconduct and Bowen's subjective fear of bodily harm adequately demonstrate, for summary judgment purposes, that Lee's conduct was both objectively and subjectively hostile or abusive.").
In sum, the totality of the evidence, taken in the light most favorable to Smith, does not support Smith's contention that her workplace was "permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter" her conditions of employment, and thus, Smith has not successfully established a hostile environment claim. See Harris, 510 U.S. at 21, 114 S.Ct. 367. We conclude that, although many of the coworkers' "racially tinged" comments and actions were "ill-chosen," and "however ill-advised [their] attempts at racial humor, [the] conduct did not give rise to an actionable claim of racial hostility." Canady, 440 F.3d at 1035.
B. Constructive Discharge
Although she resigned, Smith may bring a Title VII claim against Fairview as long as she properly establishes constructive discharge. See O'Brien v. Dep't of Agri., 532 F.3d 805, 810 (8th Cir. 2008). To do so, Smith must show that she "subjectively perceive[d] the environment to be abusive" and that "a reasonable person would have found the conditions of employment intolerable and that [Fairview] either intended to force [her] to resign or could have reasonably foreseen that [she] would do so as a result of its actions." Fenney v. Dakota, Minn. E. R.R., 327 F.3d 707, 717 (8th Cir. 2003) (quotations omitted). This is a "substantial" burden as the "bar is quite high" in these cases. O'Brien, 532 F.3d at 810-11 (quotations omitted). Because we have already concluded that Smith has not successfully shown that her hostile work environment claim should have survived summary judgment, her constructive discharge claim also fails. See Penn. State Police v. Suders, 542 U.S. 129, 146-47, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004) ("A hostile environment constructive discharge claim entails something more [than an actionable hostile work environment]."); O'Brien, 532 F.3d at 811 ("[Plaintiff] premises her constructive discharge claim on the same allegations we found insufficient to establish a hostile work environment. As such, her claim fails.").
C. Retaliation
Smith alleges that Fairview retaliated against her for complaining of her coworkers' discriminatory behavior by disciplining her with the three NCAs. "Title VII prohibits retaliation against an employee who files charges of discrimination." Thompson v. Bi-State Dev. Agency, 463 F.3d 821, 826 (8th Cir. 2006); accord 42 U.S.C. § 2000e-3(a). Because Smith did not present any direct evidence of retaliation, we apply the burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), which requires that Smith first present a prima facie case of retaliation. See Hughes v. Stottlemyre, 506 F.3d 675, 678-79 (8th Cir. 2007), cert. denied, 552 U.S. 12%, 128 S.Ct. 1741, 170 L.Ed.2d 540 (2008). Establishing a prima facie case of retaliation to defeat summary judgment requires a showing that: "(1) [the plaintiff] engaged in statutorily protected activity; (2) an adverse employment action was taken against [the plaintiff]; and (3) a causal connection exists between the two events." Green v. Franklin Nat'l Bank of Minneapolis, 459 F.3d 903, 914 (8th Cir. 2006) (quotation omitted). As the district court assumed that Smith satisfied the first two elements of her prima facie case, and because Fairview makes no argument otherwise, we limit our discussion to the third prima facie element.
To establish the requisite causal connection, Smith relies almost exclusively on the temporal proximity between her complaints of discrimination and her receipt of the NCAs. Although "[a]n inference of a causal connection between a charge of discrimination and termination can be drawn from the timing of the two events," generally "more than a temporal connection is required to present a genuine factual issue on retaliation." Peterson v. Scott Cnty., 406 F.3d 515, 524 (8th Cir. 2005).
"The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be very close." Breeden, 532 U.S. at 273, 121 S.Ct. 1508 (quotation omitted). We have held that a two-week period of time was close enough to establish causation. See Smith v. Allen Health Sys., Inc., 302 F.3d 827, 833 (8th Cir. 2002) ("[The plaintiff's] family leave began on January 1 and [the superior] discharged [the plaintiff] on January 14. These two events are extremely close in time and we conclude that under our precedent this is sufficient, but barely so, to establish causation, completing [the plaintiff's] prima facie case."); Sprenger v. Fed. Home Loan Bank of Des Moines, 253 F.3d 1106, 1113-14 (8th Cir. 2001) (noting that a "matter of weeks" between a protected activity and an adverse employment action was sufficient to complete a prima facie case of discrimination). But see Kipp v. Mo. Highway Transp. Comm'n, 280 F.3d 893, 897 (8th Cir. 2002) (noting that a two-month interval between the employee's termination and her retaliation complaint, by itself, was not enough to establish a causal connection as a matter of law). Here, the temporal proximity between Smith's complaints of discrimination, EEOC filing, and her receipt of the NCAs is tenuous at best, as the shortest interval between any of them is approximately one month. Absent any additional evidence of causation, we conclude that Smith has failed to establish this element of her prima facie case of retaliation.
Even if the temporal proximity was enough to establish a prima facie case of retaliation, Fairview offered legitimate, nondiscriminatory reasons for giving Smith the NCAs. Once a plaintiff establishes a prima facie case of retaliation, "the burden shifts to the defendant to articulate a legitimate, non-retaliatory reason for the adverse action." Macias Soto v. Core-Mark Int'l, Inc., 521 F.3d 837, 841 (8th Cir. 2008). If the defendant presents such a reason, the plaintiff must prove that it is a pretext for retaliation. Id.
All of Smith's NCAs reflect legitimate, employment-related concerns and do not reflect false accusations or evidence that Fairview inappropriately papered Smith's file with minor infractions. See Kim v. Nash Finch Co., 123 F.3d 1046, 1061 (8th Cir. 1997) (holding that a "jury could have reasonably found that [the employer] placed the written reprimand[s] in [the employee's] personnel file in order to discredit [the employee] when [there was an investigation of] his employment discrimination charge"). Thus, the burden shifts to Smith to present evidence of pretext, and she has failed to do so. Smith attempts to establish pretext by asserting that she was disciplined more severely than her coworkers. Smith claims that she was treated unfairly when she was given the NCAs for her performance, while her coworkers faced no disciplinary actions for their discriminatory behavior towards her. While "[i]nstances of disparate treatment can support a claim of pretext, . . . [Smith] has the burden of proving that she and [her coworkers] were similarly situated in all relevant respects." King v. Hardesty, 517 F.3d 1049, 1063 (8th Cir. 2008) (quotation omitted); see also Putman v. Unity Health Sys., 348 F.3d 732, 733-34 (8th Cir. 2003) (noting that to establish pretext, a plaintiff must "substantiate [her] allegations with sufficient probative evidence [that] would permit a finding in [her] favor based on more than mere speculation, conjecture, or fantasy"). Smith has produced no evidence that her coworkers were "involved in or accused of the same offense and [were] disciplined in different ways," thus she has not shown that she and her coworkers "were similarly situated in all relevant aspects." King, 517 F.3d at 1063 (quotation omitted). Therefore, Smith's retaliation claim fails. In conclusion, the district court properly granted summary judgment to Smith on her retaliation claim.
III.
Accordingly, we affirm the district court's judgment.
BYE, Circuit Judge, concurring in part and dissenting in part.
I concur in the opinion of the Court except with respect to Part II.A, which concludes Shelia Smith did not present sufficient evidence to create a genuine issue of material fact on her hostile work environment claim. Because I believe her complaint and the record each do indeed support such a claim, I respectfully dissent.
As the majority notes, "[s]ummary judgment should be granted in employment discrimination cases only if the evidence could not support any reasonable inference of discrimination" and should only be affirmed if the employer is entitled to judgment as a matter of law. Elnashar v. Speedway SuperAmerica, LLC, 484 F.3d 1046, 1055 (8th Cir. 2007).
The fourth element of a hostile work environment claim under Title VII requires the plaintiff to provide sufficient evidence showing "the harassment affected a term, condition, or privilege of his employment." Id. at 1058. In order to satisfy this prong, Smith must provide sufficient evidence that she reasonably perceived the racial harassment was "severe or pervasive." Harris v. Forklift Sys., Inc., 510 U.S. 17, 22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). However, she does not need to show there was a physical manifestation of the harm, so long as there is evidence the working environment was affected in some way. Id. at 21, 114 S.Ct. 367. In deciding whether this element is satisfied, courts must look at "all the circumstances" to determine "whether an environment is sufficiently hostile or abusive." See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001). The majority concludes Smith did not present sufficient evidence "the harassment affected a term, condition, or privilege of [her] employment." Elnashar, 484 F.3d at 1058. I disagree.
I believe the district court improperly reviewed incidents of racial hostility by separating Smith's allegations into three categories instead of viewing the "totality of the circumstances." Anderson v. Durham D M, L.L.C., 606 P.3d 513, 519 (8th Cir. 2010). At summary judgment, the district court categorized the incidents alleged by Smith into three groups. In doing so, the court looked at each allegation of harassment in isolation instead of looking at "the accumulation of abusive conduct" to make its summary judgment determination. See Hathaway v. Runyon, 132 F.3d 1214, 1222 (8th Cir. 1997). It is necessary that courts look at "all the circumstances," including those which are not explicitly racial in nature, when analyzing allegations of workplace harassment. Breeden, 532 U.S. at 270, 121 S.Ct. 1508. See also Hathaway, 132 P.3d at 1222 ("Not every aspect of a work environment characterized by hostility and intimidation need be explicitly sexual in nature to be probative."). In this case, the majority focuses its analysis only on the most flagrant instances of racial animus to the exclusion of numerous other incidents. In prior cases, however, when there was evidence of overt harassment, we looked at all allegations, not just the incidents demonstrating overt racial animus, to determine whether the incidents were frequent or severe enough to affect a term, condition, or privilege of employment. See Diaz v. Swift-Eckrich, Inc., 318 F.3d 796, 799 (8th Cir. 2003) (finding a triable issue of fact on whether harassment altered a term of employment where evidence was presented of overtly racial remarks along with actions such as making "rude noises, laughter, and statements that [plaintiff] was `stupid'"); Eich v. Bd. of Regents for Cent. Mo. State Univ., 350 F.3d 752, 759 (8th Cir. 2003) ("The humiliating and intimidating effect of the snickers and noises on [plaintiff] could have been interpreted by the jury to be caused by the nexus between that behavior and [the harasser's] earlier sexual overtures."); Bowen v. Mo. Dep't of Soc. Servs., 311 F.3d 878, 884 (8th Cir. 2002) (finding a few explicitly racial actions coupled with frequent hostile stares sufficient to create a triable issue of fact on whether the conduct altered a term of employment); Hathaway, 132 F.3d at 1222 (finding that other acts in the workplace can be used as a nexus with overt acts of harassment to establish a prima facie case). Since it is essential to a hostile work environment claim to show that conduct is either "severe or pervasive," the district court failed to acknowledge other allegations can form the nexus to establish a prima facie case. See Hathaway, 132 F.3d at 1222. As such, I believe the district court improperly reviewed the allegations as isolated events instead of considering "the accumulation of the abusive conduct." Id.
The categories were (1) incidents tenuously related to race and not evincing racial animus; (2) incidents giving rise to an inference that they were racially motivated; and (3) incidents demonstrating overt racial animus.
The majority cites Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) for the proposition that the stringent hostile work environment standard is designed to "filter out complaints attacking the ordinary tribulations of the workplace." However, this language refers to the claim as a whole instead of specific incidents reviewed piecemeal. The Supreme Court clearly articulated the sufficiency of a claim is judged "by looking at all the circumstances" and not only reviewing the allegations found to be explicit harassment. Id.
The majority states that only instances which "have a racial character or purpose" can be used to support a hostile work environment claim. Singletary v. Mo. Dep't of Corrs., 423 F.3d 886, 893 (8th Cir. 2005). However, as recognized in Diaz, Eich, Bowen, Hathaway, and other cases, whether a particular incident is racial in character is a question properly submitted to the jury, so long as the evidence as a whole permits such an inference.
In viewing the totality of the circumstances, I would conclude Smith created a trial-worthy issue on whether the harassment Smith alleges altered a term, condition, or privilege of employment. My review of the record leads me to conclude Smith produced sufficient evidence to create a fact issue as to whether "the cumulative effect" of the workplace harassment was "severe or pervasive" to support her claim. See Bowen, 311 F.3d at 885.
The facts in this case are similar to those in Bowen, where an employee suffered overt racial harassment on a few occasions. Id. The incidents included: (1) a co-worker calling plaintiff a "white bitch" and a "menopausal white bitch;" and (2) other employees telling the plaintiff that the co-worker did not like white people. Id. We also reviewed other allegations which were not overtly racial. Id. Such incidents included: (1) the co-worker throwing a cake which the plaintiff made on the floor; (2) hostile stares by the co-worker toward the plaintiff; (3) the coworker making threats of physical beating; and (4) the co-worker running at the plaintiff. Id. All of these incidents occurred within the plaintiffs two years of employment. Id. We found that although the "conduct towards [plaintiff] was not frequent, neither was it infrequent" and there was enough evidence for a jury to consider whether the accumulation of the conduct was severe enough to alter a term of the plaintiffs employment. Id.
Comparing Smith's case to Bowen, some of the harassment endured by Smith was overtly racial. For example, (1) the picture of Buckwheat posted with other employees' childhood photographs with a caption saying "Guess who this is?"; (2) employees stating Smith "needs to go back to the ghetto;" (3) overtly racist t-shirts displayed for Smith by other employees on getoffended.com; (4) a nurse stating "these black aides don't know what they are doing;" and (5) a nurse stating "[j]ust like a dog, you beat them and abuse them, they still come back. Just like any good runaway slave." Like Bowen, Smith also alleged incidents which were not explicitly racial. Incidents included: (1) a co-worker stating Smith's conversation with a Somali volunteer about ethnic food was "inappropriate;" (2) co-workers showing Smith the image of three people who appeared to be African-American on The Onion with the caption "Show us your tits for emergency rations;" (3) Smith bringing ethnic food to work and a co-worker stating that "crap in [the co-workers] garbage" smelled better; (4) a co-worker commenting that "[p]eople can't see [Smith's acne] because [she's] black;" and (5) a co-worker's comment on Smith's ability to speak Spanish. The determination of whether the sum of the incidents alleged by Smith create a hostile work environment should be left to the fact-finder because "[o]nce there is evidence of improper conduct and subjective offense, the determination of whether the conduct rose to the level of abuse is largely in the hands of the jury." Howard v. Burns Bros., Inc., 149 F.3d 835, 840 (8th Cir. 1998). Viewing the allegations together, I would conclude the evidence presented by Smith creates a "reasonable inference" that the cumulation of racial animus altered a term of Smith's employment.
In attempting to distance this case from the holding in Bowen and other similar cases, see Diaz, 318 F.3d 796; Hathaway, 132 F.3d 1214, the majority attempts to read into the hostile work environment claim a requirement that all incidents of mistreatment possess "congruency of person or incident." Ante at 1085. Whatever the precise meaning of this requirement, imposing this additional burden on plaintiff's in hostile work environment cases is not supported by law. Although it is true that plaintiff's must establish a causal nexus between the harassment and their membership in the protected group and, separately, appreciable effect of harassment incidents on a term, condition, or privilege of their employment, no cases require them to establish that all harassment emanated from the same individual or occurred immediately following the most palpable instances of harassment.
Even to the extent the majority interprets the law to require "congruency of person or incident" to explain why some seemingly innocuous conduct has racial undertones to a particular plaintiff, application of this requirement to dismiss this case violates this court's obligation to view all the evidence in the light most favorable to the nonmoving party, see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and use summary judgment in employment discrimination cases sparingly, Wallace, 442 F.3d at 1117. Smith experienced several instances of harassment with varying degree of racial animus. But even with regard to the least culpable of these instances, which were classified by the district court as "tenuously related" to race, a rational trier of fact could conclude they were related to Smith's membership in the protected group. The point is that the court cannot completely disregard these instances merely because they are not the strongest card in the plaintiff's hand. For fear of consider weaker incidents "in isolation," the majority completely disregards them. Rather than draw its own conclusions on how offensive or racially insensitive these instances are to a reasonable person, the majority must leave this task to the jury.
The majority also cites Anderson for the proposition the harassment alleged by Smith was not severe because it is void of "physically threatening or intimidating behavior." 606 F.3d at 520. However, particularly egregious examples of harassment should not mark the boundary of actionable harm. See Harris, 510 U.S. at 22, 114 S.Ct. 367 (holding the most egregious examples do not determine when an environment is sufficiently hostile or abusive). Additionally, the severity of a work environment should not simply be measured by a single event which is extreme in nature, but also by the cumulation, of abusive conduct toward an employee. See Hathaway, 132 F.3d at 1222. There is clear evidence that Smith was harassed on several occasions because of her race. Since this is certainly offensive conduct, the assessment of whether the harassment created a hostile work environment should be left in the hands of the jury. See Howard, 149 F.3d at 840.
In sum, I believe the evidence provided by Smith is sufficient to create a jury question on whether the harassment at her workplace altered a term of her employment. Therefore, I would reverse the district court's grant of summary judgment to Fairview on Smith's hostile work environment claim, and remand this case for trial.