LOKEN, Circuit Judge.
Lakishia Hill sued her employer, the City of Pine Bluff, Arkansas; Mayor Carl Redus; and her supervisor, Robert Tucker, asserting discrimination and retaliation claims under 42 U.S.C. § 1983; the Arkansas Equal Pay Act, Ark.Code Ann. § 11-4-601; and the Arkansas Civil Rights Act ("ACRA"), Ark.Code Ann. § 16-123-101 et seq. Hill appeals the district court's
Hill was hired as a secretary in the City's Inspection and Zoning Department in January 2005. At that time, the Department employed two zoning officials, Danny Birdsong and Greg Garner, who had worked as zoning officials since 1979 and 1989, respectively. Birdsong and Garner reported to Bill Glover, head of the Department, who relied on Birdsong to run its zoning operations. Glover retired in 2007 and was replaced by defendant Robert Tucker.
Hill's amended complaint alleged that defendants' failure to pay her the same salary as the man she replaced, despite a City policy of paying an incoming employee the rate at which the position was budgeted, constituted unlawful gender-based wage discrimination. She asserted this federal claim under 42 U.S.C. § 1983 but not the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d)(1), which is part of the Fair Labor Standards Act.
The district court dismissed Hill's § 1983 claims on two distinct grounds. First, the court concluded that Hill failed to establish a prima facie case of wage discrimination with sufficient evidence that her zoning official position "require[d] equal skill, effort, and responsibility, and [was] performed under similar working conditions," as the positions of Birdsong and or Garner, who had far greater seniority and supervisory responsibilities, including training Hill as a new zoning official. Tenkku, 348 F.3d at 740. We agree. In a wage discrimination case, although the jobs being compared need not be identical, they must be substantially equal as actually performed. See Simpson v. Merchants & Planters Bank, 441 F.3d 572, 578 (8th Cir.2006). Job classifications and titles are not dispositive. Tenkku, 348 F.3d at 741. It is undisputed that Birdsong and Garner had far greater seniority and relevant experience than Hill; trained Hill as a new zoning official; and had significant supervisory responsibilities. On this summary judgment record, no reasonable jury could find that, when Hill was promoted to zoning official, her new position was substantially equal to the position of either the senior supervisory official she replaced, Birdsong, or the successor supervising official, Garner. See Buettner v. Arch Coal Sales Co., 216 F.3d 707, 719 (8th Cir.2000), cert. denied, 531 U.S. 1077, 121 S.Ct. 773, 148 L.Ed.2d 672 (2001); Krenik v. County of Le Sueur, 47 F.3d 953, 961 (8th Cir.1995).
Hill's allegation that the City violated a policy of paying a new employee "what the position was budgeted for" is based primarily on a December 2004 memorandum in which an Assistant City Attorney stated that "persons may be hired for existing positions at the salary level budgeted for that position in the new budget without Administrative Committee review" (emphasis added). That is hardly evidence of a firm policy to pay new employees the amount budgeted. Moreover, deviation from such a policy would not establish that Mayor Redus's reliance on a more recent salary survey conducted at the direction of the City Council was pretextual. Though Hill argues "the record is replete with instances of males getting paid the amount budgeted for, or more, while females do not get that benefit," she failed to identify a similarly situated man who had little or no relevant work experience but was nonetheless paid a starting salary equal to the salary of his more experienced predecessor.
Hill further argues the district court erred in dismissing her wage discrimination claims because she presented sufficient direct evidence of gender discrimination, namely, (1) testimony by the former and current Human Resources Directors that Mayor Redus has discriminated against women and that his hiring practices raised "red flags"; (2) statements by two members of the City Council that Mayor Redus was not paying women correctly; and (3) a question that Mayor Redus asked Hill before she was hired as a zoning official. With the exception of the interview question, Hill's attorney presented the same "direct evidence" in an earlier case; the district court in granting summary judgment for the City concluded this was not direct evidence of gender discrimination, and we summarily affirmed. Johnson v. City of Pine Bluff, No. 5:10-CV-00037, 2011 WL 3047655, at *3 (E.D.Ark. July 25, 2011), aff'd, 450 Fed.Appx. 557, 557-58 (8th Cir.2012). The direct evidence contention is equally unpersuasive in this case. Hill admitted in her deposition that the question Mayor Redus asked before approving Hill's promotion — whether she could "fulfill the field tasks [of a zoning official] as a woman" — was not improper. It also had nothing to do with setting her initial salary.
Hill next argues the district court erred in dismissing her claim that defendants were guilty of gender discrimination when she applied for the position of Emergency Management Coordinator in the Fire Department in early 2009, a five-person hiring committee unanimously recommended her for the position, and Mayor Redus rejected the recommendation and hired Lieutenant Earnest Jones, an African-American male firefighter who had not applied for the position. The district court assumed that Hill established a prima facie case of failure-to-hire gender discrimination but granted summary judgment based on undisputed evidence supporting defendants' legitimate nondiscriminatory reason for hiring Jones — "he had more experience and was better qualified." We agree.
Hill argues the City's explanation was pretextual because the hiring committee's recommendation established that she was clearly qualified for the emergency-management position. This argument misses the mark. "To support a finding of pretext, [Hill] must show that the City hired a less qualified applicant." Torgerson v. City of Rochester, 643 F.3d 1031, 1049 (8th Cir.2011) (en banc) (quotations omitted and emphasis in original). Jones was an experienced firefighter who had recently earned a degree in emergency management from Arkansas Tech University. That the City hired a more qualified individual — which Hill does not dispute — does not permit an inference of unlawful discrimination. See Kincaid v. City of Omaha, 378 F.3d 799, 805-06 (8th Cir.2004). Hill argues that gender discrimination may be inferred from the fact that Jones did not apply for the position. But there was no evidence the City had a policy of hiring only persons who apply for a position. That Mayor Redus affirmatively sought out someone already in the Fire Department who was more qualified for the position than the hiring committee's candidate is neither surprising nor evidence of pretext.
Nearly five months after Hill filed this lawsuit in September 2009, defendant Tucker reprimanded her for commenting on "the possibility of new businesses coming to town" at a public City Planning Commission meeting that drew coverage in the local newspaper. Hill denied doing anything wrong, as the City had no policy prohibiting employees from such public comment. Hill testified that Tucker became angry and said "he was tired of me and my silly little lawsuit, and he was writing me up." In his deposition, Tucker admitted that he and Hill had yelled at each other, and that he had told Hill he did not know how to deal with a "girl" like her and found her lawsuit to be personally offensive. Following this conversation, Tucker issued Hill a written warning for being rude and insubordinate, stating that Hill "became defensive and antagonistic" and that she "displayed a loud voice and agitated behavior that is unacceptable in the workplace."
On appeal, Hill argues the testimony establishing that Tucker issued her a written warning because she filed a lawsuit was sufficient evidence of unlawful retaliation. To establish a retaliation claim under § 1983, Hill must show (1) she engaged in constitutionally protected activity; (2) a government official's adverse employment action caused injury that would "chill a person of ordinary firmness" from continuing that activity; and (3) the adverse action was motivated at least in part by the exercise of her constitutional rights. Naucke v. City of Park Hills, 284 F.3d 923, 927-28 (8th Cir.2002) (quotations omitted).
In this circuit, the second factor was significantly altered in employee retaliation cases by the Supreme Court's decision in Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Formerly, we required an employee plaintiff to prove that the alleged retaliation resulted in an "adverse employment action." See, e.g., Cross v. Cleaver, 142 F.3d 1059, 1071 (8th Cir. 1998). As the district court recognized, under White the test is whether the alleged retaliatory action was "materially adverse," that is, whether it "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." 548 U.S. at 68, 126 S.Ct. 2405 (quotations omitted). Applying this test, "[we] have consistently held that, to be materially adverse, retaliation cannot be trivial; it must produce some injury or harm." Littleton v. Pilot Travel Ctrs., LLC, 568 F.3d 641, 644 (8th Cir.2009) (quotations omitted). Accordingly, we have concluded that "commencing performance evaluations, or sending a critical letter that threatened appropriate disciplinary action, or falsely reporting poor performance, or lack of mentoring and supervision were actions that did not establish a prima facie case of retaliation, absent showings of materially adverse consequences to the employee." Id. (collecting cases).
Here, Hill failed to show that the written warning caused her "injury or harm." Tucker's written warning did not threaten termination or any other employment-related harm, unlike the "correction notice" given the employee plaintiff in Littleton, 568 F.3d at 644. She suffered no loss of pay, reduction in hours or responsibilities, or exclusion from training and advancement opportunities, and she presented no evidence that a certain number of disciplinary warnings regularly result in the City imposing employment-related harm, evidence that would be relevant to determining whether Tucker's warning would have dissuaded a reasonable worker from continuing in her protected activity. We agree with the district court there was clearly no such chilling effect in this case. Hill filed a formal grievance the day after receiving the written warning and amended her complaint to add claims of unlawful retaliation. That Hill had been disciplined for similar misconduct some months before she filed this lawsuit in September 2009 further weakens any inference that she considered Tucker's January 2010 warning "materially adverse."
Finally, Hill argues that the district court erred in dismissing her retaliation claims under the ACRA because in an earlier decision, Faircloth v. Bowers, No. 1:05-CV-00089, 2007 WL 593042, at *8 (E.D.Ark. Feb. 20, 2007), the court concluded that one subpart of the Arkansas statute, § 16-123-108(b), "contains broader
The judgment of the district court is affirmed.