May Yang v. Robert Half Int., Inc.

                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 22-2592
                        ___________________________

                                    May Yang

                                      Plaintiff - Appellant

                                        v.

   Robert Half International, Inc., also known as Robert Half Corporation, also
        known as Robert Half Legal; Theresa Hodnett; Marcia A. Miller

                                    Defendants - Appellees
                                  ____________

                     Appeal from United States District Court
                          for the District of Minnesota
                                 ____________

                           Submitted: March 14, 2023
                             Filed: August 22, 2023
                                 ____________

Before SHEPHERD, ERICKSON, and GRASZ, Circuit Judges.
                         ____________

ERICKSON, Circuit Judge.

       May Yang appeals the district court’s dismissal of her claims against Robert
Half International, Inc. (“RHI”), Marcia Miller, and Theresa Hodnett. We affirm in
part, and reverse and remand in part.
I.    BACKGROUND

      RHI provides legal staffing solutions for its clients. Yang worked for RHI as
a contract attorney performing document review. Yang was employed on various
projects on an as-needed basis. Defendants Marcia Miller and Theresa Hodnett were
Yang’s coworkers and had no supervisory duties related to Yang. Yang alleges that
Miller, Hodnett, and other coworkers engaged in a pattern of discrimination and
harassment towards her. Yang’s complaint alleges numerous incidents of
harassment and discrimination, including in part:

       1.     During a political discussion in October 2017, Miller stated, “Look at
all these Ukrainian names like ‘yourslutsky,’” which Yang interpreted as a
“gratuitous swipe to call me a slut.” Yang felt the comment was race-based and
directed at her because she was the only female of Asian descent present at the time.
       2.     Around September 2018, Yang alleges that Hodnett made derogatory
comments towards her, insinuating that she was a “ho” by saying, “Ho‐Pee” after
Yang said she was “happy.”
       3.     When a coworker wore a t‐shirt with a “Lake Tahoe” emblem, it
appears Yang inferred this was an insult directed at her personally because she
believed that the “ho” in “Tahoe” was directed at her. There is no evidence that
anyone but Yang drew this inference.
       4.     Yang alleges Hodnett would refer to Yang as a “ho” by stringing the
states of Oklahoma and Idaho together in a sentence.
       5.     On May 2, 2019, Yang and Miller went through a doorway at the same
time (the “doorway incident”). Miller opened the door and entered the threshold a
moment before Yang. In the video, Yang appears to push past Miller, Miller is
pushed forward slightly and lifts her right leg behind her, appearing to intentionally
cause Yang to stumble. Following the incident, both Miller and Yang accused the
other of tripping them. Neither Yang nor Miller fell or were injured during the
incident.



                                         -2-
      While Yang was working for RHI, she made several reports to RHI claiming
harassment, however, she never presented a claim of racial discrimination. At least
one report was made against Yang: about a week after the doorway incident, Yang
commented to her co‐worker, Leanne Dodds, “If I were to insult someone enough,
do you think my thighs would get slimmer.” According to Dodds, Yang directed it
at Hodnett, and while looking at Hodnett asked, “How are we feeling? Is someone
uncomfortable?” Dodds reported the comment and RHI conducted an investigation.
During the investigation, Yang admitted making the comment, but she said it was
not directed at Hodnett. Yang was removed from the project with Hodnett,
approximately two weeks earlier than the project would have otherwise ended. Even
though RHI removed Yang from this project, it continued to assign other work to
Yang throughout the summer of 2019.

       Yang filed a complaint with the Equal Employment Opportunity Commission
(“EEOC”) in July 2019. Yang has alleged that after she filed her EEOC complaint,
she received less work. The supervisor in charge of assigning projects to Yang,
however, was not even aware that Yang had lodged an EEOC complaint. During
the summer of 2019, RHI investigated the various complaints lodged by Yang,
Miller, and Hodnett. At the conclusion of the investigation, RHI was unable to
independently substantiate or corroborate the allegations but decided that in making
staffing assignments it would be best to assign Yang and Miller to different projects.
After this decision, Yang complained to RHI that she was not receiving project
notifications. RHI admits that Yang and Miller were removed from the mass email
notifications previously used to staff projects to ensure neither were assigned to the
same projects. Nevertheless, both Yang and Miller continued to be informed of
work opportunities up until Yang resigned in October 2019.

      Almost immediately after her resignation, Yang commenced this action
against RHI, Miller, and Hodnett. Her complaint alleged fourteen counts. The next
day Yang amended her complaint to note that her claims were subject to a
contractual arbitration agreement, and that she filed the case with the purpose of
commencing arbitration but in the event the employer waived arbitration, she was
                                         -3-
demanding a jury trial. In January 2020, Yang amended her complaint for a third
time—this time to add three more claims. In September 2020, the district court
granted Hodnett’s and Miller’s motions for partial dismissal, dismissing five counts
against Hodnett and three counts against Miller.

       A scheduling order set February 1, 2021, as the deadline for motions to amend.
Yang filed a letter on January 29, 2021, informally asking the magistrate judge to
extend the deadline for motions to amend to March 15, 2021, and also asked the
magistrate judge to schedule a telephone conference to address discovery and
scheduling issues. The magistrate judge denied the request. Yang responded by
email requesting that the magistrate judge vacate the order. The magistrate judge
denied the request to vacate on the basis that Yang had “disregard[ed] the deadlines
in the pretrial scheduling order.” Yang objected to the magistrate judge’s orders and
filed a motion for leave to file a fourth amended complaint seeking punitive
damages. On review, the district court overruled her objections and denied her
motion seeking leave to amend, finding Yang failed to show good cause to modify
the scheduling order and had not complied with the rules when she did not provide
a copy of any proposed amendments she would make to the complaint. The court
noted that the motions Yang had presented suffered from various procedural defects
and rule violations, including the requirement to meet and confer prior to filing.
Finally, the court determined that Yang’s proposed amendments were futile.

       On March 23, 2021, the district court dismissed with prejudice the remaining
counts against Hodnett and ordered “Defendant Theresa Hodnett is DISMISSED
from the case.” On December 7, 2021, the district court accepted a stipulation
between Miller, Hodnett, and RHI to dismiss their competing cross-claims. With
the dismissal of the cross-claims, Hodnett’s involvement in the case terminated but
no formal judgment was entered.

        On May 20, 2022, the district court entered a judgment dismissing all claims
against RHI and Miller. On the day the district court entered its judgment dismissing
all claims against RHI and Miller, RHI’s counsel asked the district court to formally
                                         -4-
enter a judgment dismissing Hodnett. On June 23, 2022, the district court entered a
judgment dismissing all claims involving Hodnett. Between May 20, 2022, and June
23, 2022, a flurry of correspondence took place between the parties and the court,
ultimately resulting in Yang filing a motion under Fed. R. Civ. P. 59(e) on June 17,
2022.

       In the correspondence preceding the filing of the Rule 59(e) motion, Yang
filed a letter requesting permission to file a “Motion to Alter or Amend Judgment
Pursuant to Fed. R. Civ. P. 59(e).” The court neither granted nor denied her motion
because Yang had “given no information about this motion.” Yang then requested
reconsideration, which the district court denied as a “nullity” because Yang had
failed to follow the proper procedure for seeking reconsideration and because
Yang’s reconsideration motion was really an attempt to relitigate issues that had
already been decided. The court also noted that even in the absence of a procedural
default, it would have denied the motion because Yang had raised no new arguments
or evidence that were unaddressed in the court’s original rulings. The district court
entered cost judgments against Yang.

       Yang appeals from the dismissal as to eight counts against RHI: Count 2
“Race and/or National Origin Discrimination” under Title VII of the Civil Rights
Acts of 1964 and 1991 (“Title VII”); Count 3 “Race and/or National Origin
Discrimination” under the Minnesota Human Rights Act (the “MHRA”); Count 5
“Reprisal Discrimination” under Title VII; Count 6 “Reprisal Discrimination” under
the MHRA; Count 8 “Hostile Work Environment” under the MHRA; Count 9
violation of the Minnesota Whistleblower Act; Count 15 “Negligent/Intentional
Infliction of Emotional Distress”; and Count 16 “Constructive Discharge” under
Title VII.

      Yang also appeals from the dismissal of four counts directed at Hodnett and
Miller jointly: a claim under 

, and three Minnesota state law claims.
She also appeals the dismissal of her claim for assault/battery against Miller found
in Count 12. In addition, Yang appeals the district court’s denial of her motions to
                                         -5-
amend the scheduling order, to supplement the record, and to amend the complaint
to add punitive damages. Finally, Yang appeals the court’s entry of cost judgments
against her.

      RHI and Hodnett have moved to dismiss the appeal as untimely. Yang filed
her Notice of Appeal on July 28, 2022, which is more than thirty days after the entry
of both judgments. Yang asserts that her appeals are timely because her motion for
reconsideration tolled the time to appeal.

II.   DISCUSSION

       A. Motions to Dismiss the Appeal

      RHI and Hodnett have moved to dismiss the appeal as untimely. On June 17,
2022, Yang filed a “Motion to Amend or Alter Judgment Pursuant to Fed. R. Civ. P.
59(e)” which sought to set aside the district court’s May 20, 2022, judgment
dismissing all claims against RHI and Miller. On June 23, 2022, the district court
entered a judgment dismissing the remaining claims against Hodnett. The district
court denied Yang’s motion to amend on July 7, 2022. Yang filed her notice of
appeal on July 28, 2022.

      An appellant must file a notice of appeal with the district court within thirty
days of the order or judgment from which the appeal is taken. 

(a);
see Fed. R. App. P. 3(a)(1). Under Federal Rule of Appellate Procedure
4(a)(4)(A)(iv), a motion to alter or amend a judgment under Rule 59(e) tolls the
appeal period. Fed. R. Civ. P. 54(a) defines a “Judgment” as “a decree and any order
from which an appeal lies.” Here, when the court entered judgment on May 20,
2022, it had the effect of dismissing all claims as against all defendants, as the court’s
previous order had already disposed of all claims against Hodnett. There is a familiar




                                           -6-
maxim in the law—the law does not require vain or useless acts. 1 Each of the
requirements for an effective judgment against Hodnett were satisfied on May 20,
2022. See Bankers Trust Co. v. Mallis, 

 (1978) (analyzing the
separate document requirement of Rule 58 as operating to prevent loss of appeal);
see also Smith v. Hudson, 

 (6th Cir. 1979) (rejecting the defendants’
argument that the plaintiffs’ motion could not properly be treated as a Rule 59(e)
motion because it was made prior to the entry of judgment).

      Yang filed her Rule 59(e) motion 28 days after the entry of a judgment, which
when combined with the previous orders dismissing all of the claims involving
Hodnett had the effect of resolving the entire action. Even if the motion was
technically premature, we do not view it as a nullity but rather dormant until the
formal judgment was entered. To require the refiling of an identical motion would
have been a useless act under the circumstances here. Under these facts, Yang’s
Rule 59(e) motion tolled her time to appeal. The motions to dismiss the appeal are
denied.

          B. Procedural Issues

      Yang appeals the district court’s denial of her motions to amend the
scheduling order, to supplement the record, and to amend her complaint to add
punitive damages.

            i. Yang’s Motion to Amend the Scheduling Order

      Yang argues the district court abused its discretion in affirming the magistrate
judge’s order that denied her request to amend the scheduling order. We review the
denial of a motion to modify the scheduling order for an abuse of discretion. See
Zick v. Paccar, Inc., 

 (8th Cir. 2022).


      1
        Quod vanum et inutile est, lex non requirit. “The law does not require what
is vain and useless.” Black’s Law Dictionary, app. A at 1684 (7th ed. 1999).
                                         -7-
       A district court possesses broad discretion when it establishes and enforces
deadlines in its scheduling orders. Petrone v. Werner Enters., Inc., 

 (8th Cir. 2019). Once a scheduling order has been adopted by the district court,
it may be modified “only for good cause and with the judge’s consent.” Fed. R. Civ.
P. 16(b)(4). This Court has stated that “the primary measure of good cause is the
movant’s diligence in attempting to meet the order’s requirements.” Hartis v. Chi.
Title Ins. Co., 

 (8th Cir. 2012).

       The district court’s scheduling order required that any motion to amend the
pleadings be filed not later than February 1, 2021. On January 29, 2021, Yang sent
a letter to the magistrate judge requesting “the February 1, 2021 deadline be reset to
March 15, 2021,” and to schedule a “discovery status telephone conference” to
discuss her request. The magistrate judge held an informal discovery conference on
February 8, 2021, and immediately afterward filed a text-only order denying Yang’s
request to extend the motion deadline. Yang filed an objection, and the district court
affirmed the magistrate judge’s order, finding Yang had not shown she was diligent
in following the scheduling order’s requirements and could have raised the issue
sooner than she did. Yang’s lack of diligence is a finding of fact that we will only
reverse on a finding of clear error. We find no error, clear or otherwise. The district
court did not abuse its discretion in denying Yang’s motion to amend.

         ii. Yang’s Motion to Supplement the Record

       Yang also appeals from a denial of her motion to supplement the record. She
claims the record was incomplete because Yang had not received Hodnett’s initial
discovery responses until after Yang had filed her response to Hodnett’s motion for
a judgment on the pleadings. The district court denied the motion, noting that in
considering a motion for judgment on the pleadings, the court is limited to reviewing
the pleadings. See von Kaenel v. Armstrong Teasdale, LLP, 

(8th Cir. 2019). In addition, the court noted that additional information was
unnecessary because the court was bound to accept Yang’s factual allegations as
true. Under these circumstances, we find no abuse of discretion by the district court
                                         -8-
in denying the motion to supplement the record. See Indep. Sch. Dist. No. 283 v.
E.M.D.H., 

 (8th Cir. 2020) (standard of review).

        iii. Yang’s Motion to Add Punitive Damages

       In March 2021, Yang moved the district court to allow her to add a claim for
punitive damages. The court denied her motion, finding it was procedurally
improper. The decision to allow a party to amend the complaint is within the sound
discretion of the district court and will be overturned only if there is an abuse of
discretion. Popoalii v. Corr. Med. Servs., 

 (8th Cir. 2008).

       As noted by the district court, Yang’s motion was procedurally defective
because she did not comply with Local Rule 7.1, which requires that, before “filing
a motion . . . the moving party must, if possible, meet and confer with the opposing
party in a good-faith effort to resolve the issues raised by the motion” and file a
statement attesting that she did so. While Yang filed a statement, it did not comply
with Local Rule 7.1. Instead, it merely cited a couple of letters Yang’s former
counsel sent to opposing counsel. As the district court explained:

      RHI’s counsel received a letter simply asking if RHI would “stipulate
      to allow amendment to the Complaint to add a claim for punitive
      damages. Please respond.” . . . RHI’s counsel also received a few
      phone calls seeking to “meet and confer” on “discovery matters,” to
      which RHI’s counsel offered times to confer, but Yang’s counsel never
      accepted or acknowledged the offer.

The district court found Yang’s statement did not comply with the local rules. The
district court has considerable discretion in applying its local rules and we find no
abuse of discretion here. See R.A.D. Servs. LLC v. State Farm Fire & Cas. Co., 

 (8th Cir. 2023).




                                         -9-
       C. Dismissal of Claims Under Rule 12(b)(6)

      Yang appeals the district court’s dismissal under Federal Rule of Civil
Procedure 12(b)(6) of the following claims against Hodnett and Miller: 

 claims; defamation claim; and claims of negligent and intentional infliction
of emotional distress. We review de novo a district court’s decision granting a
motion to dismiss for failure to state a claim, accepting as true all factual allegations
and viewing them in the light most favorable to the non-moving party. Thompson
v. Harrie, 

 (8th Cir. 2023).

          i. 

 Personal Liability Claims

       “While § 1981 prohibits racial discrimination in all phases and incidents of a
contractual relationship, the statute does not provide a general cause of action for
race discrimination.” Gregory v. Dillard’s, Inc., 

 (8th Cir. 2009)
(cleaned up). “Any claim brought under § 1981 . . . must initially identify an
impaired contractual relationship under which the plaintiff has rights.” Id. at 468-
69 (cleaned up). To assert a prima facie § 1981 claim, Yang must allege: (1) she
was a member of a protected class; (2) discriminatory intent by the defendants; (3)
Yang engaged in a protected activity; and (4) the defendants interfered with that
activity—the making and enforcement of an employment contract. Id. at 469. Yang
asserts the district court incorrectly ruled that co-workers must exert supervisory
control over an employee to be held personally liable under a § 1981 race
discrimination claim. This is a question of first impression in our Court that we need
not address because Yang has otherwise failed to establish a prima facie case of race
discrimination.

       Yang must present evidence, not merely speculation, of discriminatory intent
on Hodnett’s and Miller’s part to create a prima facie case under § 1981. See Daniels
v. Dillard’s, Inc., 

, 887 (8th Cir. 2004). We accept as true Yang’s
allegations. Yang has alleged that Hodnett used words with the sound “ho” to imply
that Yang is a “whore”; that Hodnett made false complaints to RHI supervisory

                                          -10-
personnel in an attempt to get Yang fired; that Hodnett encouraged a co-worker to
report to RHI that Yang made fat-shaming comments; and that Miller used the term
“yourslutsky” as some sort of a racial slur. Other than Yang’s inferences which are
speculative and unsupported, there are no allegations or facts in the record tying
these slurs to Yang’s race. Yang’s § 1981 claim fails as a matter of law.

       Even if we could find some racial motivation, there is no evidence of any
interference or attempted interference with Yang’s contract with RHI. Yang faces a
hurdle as the evidence tends to support a conclusion that she voluntarily left RHI.
In addition, the “ho” comments made by Hodnett were made more than eight months
in advance of the alleged retaliatory report of Hodnett. The allegations about
Miller’s “yourslutsky” comments are also remote in time. Yang continued to work
for RHI for nearly two years after these alleged incidents. When the time between
the alleged discriminatory and retaliatory actions by Hodnett are coupled with
Yang’s voluntary termination of the employment relationship, Yang has not
established that Hodnett or Miller interfered with her employment contract.

      Likewise, there is no evidence that RHI interfered with Yang’s employment
contract. RHI neither suspended nor terminated the employment relationship.
Rather, Yang left voluntarily. Yang has not established that RHI’s decision to
discontinue staffing Miller and Yang on the same projects was based on her race.
Both she and Miller were subject to this restriction, and both continued to receive
assignments on different projects. The record is silent as to a connection between
any actions on the part of RHI and Yang’s race or any protected activity. Because
Yang cannot establish a prima facie case of discrimination, we affirm the district
court’s dismissal of her § 1981 claims.

         ii. Defamation Claims

      Yang also argues that the district court erred when it dismissed her defamation
claims against Miller and Hodnett. To demonstrate defamation under Minnesota
law, Yang must allege: (1) there was a published statement of fact; (2) of and
                                        -11-
concerning Yang; (3) which was false; and (4) the factual statement damaged Yang’s
reputation and lowered her estimation in the community. See Lewis v. Equitable
Life Assurance Soc’y. of the U.S., 

 (Minn. 1986). Defamation
per se includes falsely accusing someone of committing a crime or imputing serious
sexual misconduct to them. Richie v. Paramount Pictures Corp., 

, 25
n.3 (Minn. 1996).

      Yang alleges she was defamed by Miller’s accusation that Yang tripped her.
Because this statement does not accuse her of a crime or serious sexual misconduct,
Yang has failed to establish defamation per se. As to ordinary defamation, Yang
has not pled any fact that would tend to establish any of the allegedly defamatory
statements damaged Yang’s reputation or lowered her estimation in the community.
The district court did not err in dismissing Yang’s defamation claim.

       Yang also claims that Hodnett made references to Yang as a “ho” by
mispronouncing certain words and by engaging in certain word-play involving “ho.”
Once again, the term “ho” is not defamatory per se, and Yang has failed to establish
an injury to her reputation. Yang’s defamation claim against Hodnett also fails as a
matter of law.

        iii. Negligent and Intentional Infliction of Emotional Distress Claims

       While Yang contends the district court erred in dismissing her negligent and
intentional infliction of emotional distress claims against Miller and Hodnett, her
briefing makes no argument related to her intentional infliction of emotional distress
claim and has been abandoned.

       To state a claim for negligent infliction of emotional distress, Yang must plead
facts indicating she (1) was within a zone of danger of physical impact; (2)
reasonably feared for her own safety; and (3) “suffered severe emotional distress
with attendant physical manifestations.” Thomsen v. Ross, 

 (D. Minn. 2005). Yang argues the district court misapplied the “zone of danger”

                                         -12-
test because Minnesota recognizes an exception to the test that allows recovery for
“mental anguish or suffering upon a direct invasion of his or her rights, such as
defamation, malicious prosecution, or other willful, wanton or malicious conduct.”
Bohdan v. Alltool Mfg., Co., 

 (Minn. Ct. App. 1987).

      Bohdan, as an opinion of the Minnesota intermediate appellate court, is
tenuous authority. The Minnesota Supreme Court has never extended the zone of
danger as far as the Bohdan court so we must determine the Minnesota Supreme
Court’s “probable decision on the issue by reference to its analogous case law,
relevant decisions of the state’s lower courts, and other potentially elucidating state
law materials.” Eichenwald v. Small, 

 (8th Cir. 2003).

        We think it highly improbable that the Minnesota Supreme Court would
recognize this exception. In Stadler v. Cross, 

 (Minn. 1980),
the court refused to extend negligent infliction of emotional distress liability to cases
in which the plaintiff is not in the zone of danger. See also Langeland v. Farmers
State Bank of Trimont, 

 (Minn. 1982) (“We therefore must hold
that lacking a showing of injury beyond that allegedly arising from their emotional
distress, the [plaintiffs] may not recover damages.”). The district courts in
Minnesota have consistently applied the zone of danger approach over a period of
decades. See, e.g., Meyer v. Tenvoorde Motor Co., 

 (D.
Minn. 1989) (finding Bohdan directly at odds with the Minnesota Supreme Court’s
refusal to relax the “zone of danger” requirement); Armstrong v. Target Corp., No.
Civ.10-1340 RHK/SRN, 

, at *5 (D. Minn. Nov. 15, 2010) (“The
Minnesota Supreme Court recognizes no exception to the ‘zone of danger’
requirement for [negligent infliction of emotional distress].”). We predict the
Minnesota Supreme Court would not abandon the zone of danger requirement but
even if it did, Yang is unable to state a claim for defamation, malicious prosecution,
or other willful, wanton, or malicious conduct sufficient to state a claim for negligent
infliction of emotional distress.



                                          -13-
       D. Summary Judgment

       Yang appeals the district court’s adverse grant of summary judgment. “We
review a grant of summary judgment de novo, viewing the record in the light most
favorable to the nonmoving party and drawing all reasonable inferences in that
party’s favor.” Richardson v. Omaha Sch. Dist., 

 (8th Cir. 2020)
(cleaned up). “Summary judgment is appropriate when there are no genuine issues
of material fact, and the moving party is entitled to judgment as a matter of law.”
Leonard v. St. Charles Cnty. Police Dep’t, 

 (8th Cir. 2023) (cleaned
up); see also Fed. R. Civ. P. 56(a)).

          i. Discrimination and Retaliation Claims Against RHI

      Yang alleges claims against RHI of race discrimination under § 1981, Title
VII, and the MHRA, and of reprisal under Title VII and the MHRA. We apply the
same analysis to Title VII and MHRA claims when they are based on identical facts
and theories. See Torgerson v. City of Rochester, 

 (8th Cir.
2011). We analyze both Title VII and § 1981 claims under the burden-shifting
framework in McDonnell Douglas Corp. v. Green, 

 (1973). Lake v.
Yellow Transp., Inc., 

, 873 n.2 (8th Cir. 2010).

       To establish a prima facie case of discrimination under the McDonnell
Douglas framework, Yang must show: (1) she is a member of a protected class; (2)
she met her employer’s legitimate expectations; (3) she suffered an adverse
employment action; and (4) the circumstances give rise to an inference of
discrimination. Faulkner v. Douglas Cnty., 

 (8th Cir. 2018). A
plaintiff can create an inference of discrimination by showing that she was treated
differently than similarly situated persons who are not members of the protected
class. 

 Once a plaintiff establishes a prima facie case, the burden shifts to the
employer to articulate a legitimate, nondiscriminatory reason for its action. 

 If
the employer shows a legitimate nondiscriminatory reason for the adverse action,
the burden shifts back to the plaintiff to establish pretext. 

                                        -14-
       Yang’s claim fails for several reasons. First, she suffered no adverse
employment action, as the record only supports a voluntary separation. Second, RHI
was never aware that Yang believed she was being discriminated against based on
her race because Yang never bothered to inform RHI of her concerns. Finally, Yang
was not treated differently from other coworkers who were not Asian. The
complained of employment action, being separated from Miller on projects resulting
in fewer opportunities, was even-handed without any consideration of race. Both
Miller and Yang amply demonstrated that they were unable to work together, and
separation was a legitimate employment decision. Although Yang was removed
from a single project, it was because of her own misconduct—improperly discussing
Hodnett’s weight. With regard to Yang’s allegations about retaliation, which stem
from her filing an EEOC complaint, the person she claims retaliated against her had
no knowledge that Yang had filed an EEOC complaint. RHI is entitled to summary
judgment on these claims.

         ii. Hostile Work Environment and Constructive Discharge Claims

      Yang appeals the district court’s dismissal of Counts 8 and 16, which alleged
RHI created a hostile work environment, in violation of the MHRA, and
constructively discharged her, in violation of Title VII.

       To establish a prima face case of a hostile work environment, Yang is required
to show: (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; and (4) the harassment affected a term, condition, or privilege of employment.
Hesse v. Avis Rent A Car Sys., Inc., 

 (8th Cir. 2005). “The
conduct must have been severe or pervasive enough to create an objectively hostile
or abusive work environment.” 

 Title VII does not prohibit general workplace
harassment. 

.

     In determining whether a hostile work environment existed, all circumstances
of Yang’s employment must be considered, “including the frequency of the
                                        -15-
offending conduct, its severity, whether it was physically threatening or humiliating,
and whether it unreasonably interfered with work performance.” 

 Upon careful
review of the record, Yang’s hostile work environment claims fail because even
accepting her factual allegations as true, there is no evidence that Yang was
subjected to severe, physically threatening, or humiliating harassment. Accepting
her claims about the doorway incident as true, there is no evidence that Miller tripped
Yang frequently or that her conduct was based on Yang’s race. Yang has not pointed
to evidence establishing a causal connection between her co-workers’ conduct and
her race. We affirm the dismissal of Yang’s hostile work environment claims.

       To establish a prima facie case of discriminatory discharge, Yang must show:
(1) she was a member of a protected class; (2) she was capable of performing the
job; and (3) she was discharged from the job. See Tidwell v. Meyer’s Bakeries, Inc.,

 (8th Cir. 1996). Yang has met the first two elements of this test.
Because Yang was not terminated, she must show she was constructively
discharged. See 

      To constitute constructive discharge, Yang must demonstrate that RHI
deliberately created intolerable working conditions with the intention of forcing her
to quit and she did quit. See 

 “A constructive discharge arises only when a
reasonable person would find the conditions of employment intolerable.” 

 Yang
argues RHI constructively discharged her based on her reassignment from a project
with Hodnett and RHI’s decision to staff Yang and Miller separately. Yang,
however, was still being staffed on other projects. “Dissatisfaction with work
assignments, a feeling of being unfairly criticized, or difficult or unpleasant working
conditions are not so intolerable as to compel a reasonable person to resign.” 

 at
496 (quoting Carter v. Ball, 

 (4th Cir. 1994)).

      After carefully reviewing the record and viewing the evidence in a light most
favorable to Yang, there is no indication that RHI acted with the intention of forcing
Yang to resign or that Yang’s resignation was a reasonably foreseeable consequence
of RHI’s actions. Nor do the allegations support a conclusion that RHI maintained
                                         -16-
working conditions that were intolerable. Without this evidence, a finding of
constructive discharge is unsustainable.

        iii. Whistleblower Claims

      The Minnesota Whistleblower Act prohibits employers from retaliating
against an employee who “in good faith, reports a violation, suspected violation, or
planned violation of any federal or state law.” 

 (1). Minnesota
applies the McDonnell Douglas framework to these claims. Cokley v. City of
Otsego, 

 (Minn. Ct. App. 2001).

       To establish a prima facie case, Yang must demonstrate: (1) she engaged in
statutorily‐protected conduct; (2) RHI took adverse employment action; and (3) a
causal connection between the two. 

 Because Yang suffered no adverse
employment action, her whistleblower claims fail as a matter of law.

        iv. Negligent Infliction of Emotional Distress/Intentional Infliction of
            Emotional Distress Claims Against RHI

        Yang alleges both negligent infliction of emotional distress and intentional
infliction of emotional distress against RHI. Because Yang did not allege anything
about the zone of danger or even address it in her summary judgment motion, the
district court did not err in granting summary judgment in favor of RHI on Yang’s
negligent infliction of emotional distress claim. See Thomsen, 

 (listing zone of danger as an element for a negligent infliction of emotional
distress claim).

       Under Minnesota law, a person asserting a claim for intentional infliction of
emotional distress must establish: (1) the conduct is extreme and outrageous; (2) the
conduct is intentional or reckless; (3) the conduct causes emotional distress; and (4)
the distress is severe. Fredin v. Middlecamp, 

, 785 (D. Minn.
2020). Actionable conduct must be “so atrocious that it passes the boundaries of
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decency and is utterly intolerable to the civilized community.” 

 The relevant
conduct at issue here is RHI’s continuous employment of Miller following the
doorway incident. No reasonable jury could find this conduct rises to the requisite
level necessary to establish a claim for intentional infliction of emotional distress.
See 

 (“[L]iability for intentional infliction of emotional distress does not extend
to insults, indignities, threats, annoyances, petty oppressions, or trivialities.”). We
affirm the grant of summary judgment in favor of RHI on Yang’s intentional
infliction of emotional distress claim.

         v. Yang’s Battery Claim Against Miller

      Yang asserts that Miller committed a battery against her during the doorway
incident. In Minnesota, battery is an intentional and offensive contact with another
person. Johnson v. Morris, 

 (Minn. 1990). The district court
granted summary judgment in favor of Miller on this claim, finding that Yang had
presented no evidence supporting battery because there was no evidence to suggest
Miller intended to engage in contact with Yang during the incident.

       We have reviewed the video footage of alleged trip and find there is sufficient
evidence in the video to create a factual dispute as to whether Miller intended to lift
her leg, make contact with Yang, and cause Yang to trip. Because of the factual
dispute, summary judgment on this claim is improper. We reverse the district court’s
grant of summary judgment as to Yang’s battery claim and remand for proceedings
consistent with this opinion.

         vi. Aiding and Abetting Discrimination

      Yang’s claims pertaining to aiding and abetting are premised on the notion
that Hodnett aided and abetted Miller in discriminating against Yang and that both
Hodnett and Miller induced others to subject Yang to harassment and discrimination.




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       The MHRA only imposes liability for aiding and abetting a violation of the
MHRA if a person “knows that another person’s conduct constitutes a violation of
the MHRA and ‘gives substantial assistance or encouragement to the other so to
conduct himself.’” Matthews v. Eichorn Motors, Inc., 

 (Minn.
Ct. App. 2011). Because Yang cannot make out a prima facie case of discrimination
against any of the defendants, her aiding and abetting claims fail as a matter of law.
See 

 (“[A] viable discrimination claim is a prerequisite to a claim of aiding and
abetting discrimination.”).

       E. Cost Judgments

       Yang appeals the district court’s entry of cost judgments against her,
contending that because her appeal is pending, it is impossible to determine who the
prevailing party is. We review an award of costs for abuse of discretion. See
Beaulieu v. Stockwell, 

 (8th Cir. 2022). Unless a federal statute,
the federal rules, or a court order provides otherwise, “costs—other than attorney’s
fees—should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1). The
district court did not abuse its discretion in awarding costs to RHI even though Yang
previously filed a notice of appeal because “a court still has the power to award costs
when an appeal on the merits is pending.” See Blakley v. Schlumberger Tech. Corp.,

 (8th Cir. 2011) (determining district court’s award of costs was
warranted despite plaintiff’s unsupported assertions that costs could not be awarded
after plaintiff filed notice of appeal). We affirm the district court’s entry of a cost
judgment against Yang in favor of RHI.

      Because we reverse the district court’s grant of summary judgment as to
Yang’s battery claim, we also reverse the entry of a cost judgment in favor of Miller,
who is no longer the prevailing party as to that claim. See Pottgen v. Mo. State High
Sch. Activities Ass’n, 

 (8th Cir. 1997) (a party “cannot qualify
as a prevailing party if the only basis for his claim of success on the merits is a
judgment that has been reversed on appeal”).


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III.   CONCLUSION

       For the foregoing reasons, we affirm the district court decisions, except for
the dismissal of Yang’s claim of battery and the entry of a cost judgment in favor of
Miller. We deny as moot Yang’s two motions to correct her brief and to supplement
the record. We reverse and remand Yang’s battery claim to allow the district court
to determine whether to exercise supplemental jurisdiction over the claim in
accordance with 

(c)(3). We also reverse and remand for
proceedings consistent with this opinion the entry of a cost judgment in favor of
Miller.
                       ______________________________




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