Opinion
4:02CV3260.
February 9, 2005
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
On December 12, 2002, the plaintiff, Melvin L. Moore, filed an amended complaint against the defendant, the City of Lincoln, Nebraska ("the City"), alleging discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1983; the United States Constitution; and the Nebraska Fair Employment Practices Act (NFEPA), Neb. Rev. Stat. § 48-1101 et seq. (See generally Am. Compl., filing 13.) Now before me is the defendant's motion for summary judgment. (See filing 60.) For the following reasons, I find that the defendant's motion must be granted.
The amended complaint states, "The Defendant's willful discriminatory actions against the Plaintiff are in violation of Title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991, as amended." (Am. Compl., filing 13, ¶ 34.) Although the plaintiff's allegation suggests that the defendant violated two separate statutes, I shall assume that he means to allege a violation of Title VII of the Civil Rights Act of 1964, as amended by, inter alia, the Civil Rights Act of 1991.
I. BACKGROUND
The plaintiff's brief in opposition to the defendant's motion for summary judgment, (filing 91), does not contain a "separate statement of each material fact as to which it is contended there exists a genuine issue to be tried" accompanied by citations to specific supporting documents, as required by the applicable local rule. See NELR 56.1 (superceded by NECivR 56.1 on August 6, 2004). The defendant argues, correctly, that it is neither its nor my responsibility to sift through the plaintiff's brief to identify disputed material facts. (See filing 110 at 1-2.) Nevertheless, I have considered the materials upon which the plaintiff may properly rely in opposition to the defendant's motion for summary judgment — but only to the extent that those materials are cited with particularity in the plaintiff's brief. (See Mem. and Order on Mot. to Strike Portions of Pl.'s Filings No. 91 and 92, and Related Mots., filing 107.)
The defendant is a political subdivision of the State of Nebraska and an "employer" within the meaning of Title VII. On January 9, 1987, the plaintiff, who is an African-American male, submitted an application for employment with the defendant. On this application, the plaintiff responded, "No," to the question, "Have you ever been convicted of any violation other than a minor traffic violation?"and signed an acknowledgment stating, "I understand that any false information I record in the application will be sufficient reason for rejection of application or termination of my employment." (Index of Evid. in Supp. of Def.'s Mot. for Summ. J. (Def.'s Index), filing 62, Attachment E-1.) In fact, however, the plaintiff had been convicted of four "violation[s] other than . . . minor traffic violation[s]" prior to January 9, 1987. (See id., Attachment F.) The defendant hired the plaintiff to fill a position in the Lincoln Water System, which is a division of the Public Works and Utilities Department of the City, and there is no evidence that the defendant knew about the plaintiff's prior convictions at this time.
On August 19, 1992, the plaintiff was promoted from the position of Water Plant Operator to that of a Utility Plant Mechanic. (Index of Evid. in Opp'n to Def.'s Mot. for Summ. J. (Pl's Index), filing 92, Attachment 1-Q.) In the years that followed, the plaintiff completed various training courses and workshops covering forklift safety, "confined space entry," and "asbestos awareness." (See id., Attachments 1-M, 1-O to 1-P.)
On April 10, 1996, Officer Tim Woolman of the Lincoln Police Department submitted to Clarence Owen, one of the plaintiff's supervisors, a complaint about the plaintiff's conduct. (See Def.'s Index, filing 62, Attachment G, Miriovsky Aff. ¶ 5(c);id., Attachment G-4.) The officer's account of his encounter with the plaintiff is undisputed. Briefly, the officer complained that while he was engaged in a traffic stop of a third vehicle, the plaintiff exited a city truck, approached, and yelled threats at the officer. (See id., Attachment G-4.) The plaintiff withdrew after the officer told him that he would be arrested if he did not return to his truck. (See id.) As a result of the officer's complaint, the plaintiff was given a one-day suspension for violating "§ 2.76.445(e) of the Lincoln Municipal Code and Article 8 of the NAGE bargaining agreement." (Def.'s Index, filing 62, Attachment D-4.) In addition, "because of this and previous incidents involving [his] temper," the plaintiff was "directed to undergo a professional evaluation through the Employee Assistance Program and complete whatever course is recommended." (Id.)
Lincoln, Neb., Municipal Code § 2.76.455 states, "Any action which reflects discredit upon the city service or is a direct hindrance to the effective performance of the municipal government functions shall be considered good cause for disciplinary action. . . ." (Def.'s Index, filing 62, Attachment J.) Subsection(e) identifies one such action as "Offensive conduct or language toward the public or toward city officers or employees." (Id.)
On January 29, 1997, the plaintiff's "effort and willingness to identify and find better ways to improve the building and grounds maintenance" were noted with appreciation. (See Pl.'s Index, filing 92, Attachment 1-N.) However, on July 14, 1997, the defendant received another complaint about the plaintiff's behavior. (See Def.'s Index, filing 62, Attachment G-3; id., Attachment G, Miriovsky Aff. ¶ 5.) According to Lincoln Police Officer Patrick McGuire's undisputed report, the plaintiff yelled and screamed at the officer for no discernable reason, and the officer felt that the plaintiff was going to assault him. (See id., Attachment G-3.) The officer withdrew from the encounter and submitted a complaint to the Lincoln Water System, (see id., Attachment G, Miriovsky Aff. ¶ 5), but there is no evidence that the plaintiff was disciplined as a result of this complaint.
The plaintiff's employer received yet another complaint about the plaintiff's conduct after Deputy Sheriff Gordon K. Harrod of the Lancaster County Sheriff's Office encountered the plaintiff at the Lincoln Water System complex on November 23, 1998. (See Def.'s Index, filing 62, Attachment G-2.) According to the deputy's undisputed account of the incident, the plaintiff recognized the deputy from a "previous contact," identified the deputy as the "motherfucker who had lied in court," and stated repeatedly that if the deputy would remove his badge and exit his vehicle, he would beat the deputy "right there in the parking lot" or "break [his] back." (Id.) Although the deputy submitted a written complaint to the plaintiff's supervisor, there is no evidence that the complaint led to any disciplinary action against the plaintiff.
The plaintiff's 1999 Employee Performance Evaluation, which was signed by the plaintiff on March 1, 1999, includes several favorable comments from the plaintiff's supervisors. (See Pl.'s Index, filing 92, Attachment 1-R.) Among these comments are the following: "Melvin is a good willing worker, very helpful when asked to assist with projects. . . . Melvin works hard to promote cooperation with other employees and shows great improvement." (Id.) "Melvin continues to do an excellent job! His stations are in very good condition. His positive attitude and cooperation continue to improve which makes for a pleasant work environment." (Id.) "Melvin has done an excellent job of maintaining his assigned buildings and grounds areas. Melvin has made a significant change in his approach to his job. He has a positive attitude and does his best to work things out with his co-workers." (Id.)
On April 22, 1999, the plaintiff was suspended for three days for violating "§ 2.76.445(e), (f), and (j) of the Lincoln Municipal Code." (Def.'s Index, filing 62, Attachment D-5.) This suspension resulted from the plaintiff's "conduct on April 2, 1999, at which time [he] refused to perform work tasks assigned to [him] and engaged in a heated verbal exchange with [his] supervisors, which created an intimidating atmosphere for employees in the immediate area of the verbal exchange." (Id.) In addition to the suspension, a "Conflict Resolution Process" was put into place to "develop a model for interaction and communication for the future." (Id.) The plaintiff was warned, "[A]ny future conduct of this nature will result in progressive discipline and possibly termination of your employment with the City of Lincoln." (Id.)
Lincoln, Neb., Municipal Code § 2.76.455(f) states that disciplinary action may lie against one who "[h]as been guilty of insubordination or any conduct unbecoming to an officer or employee of the city, either on or off duty." (Def.'s Index, filing 62, Attachment J.) Subsection (j) states that disciplinary action may lie against one for the "[c]ommission of acts or omissions unbecoming to an incumbent of the particular office or position held. . . ." (Id.) (See also supra note 3.)
The plaintiff's performance was evaluated again in February 2000, and, as before, the Employee Performance Evaluation form includes several favorable comments from the plaintiff's supervisors. (See Pl.'s Index, filing 92, Attachment 1-S.) Among these comments are the following: "Melvin is a good, willing worker, very helpful when asked to assist with projects. . . . Melvin works hard to promote cooperation with other employees." (Id.) "In the last six months, I have seem Melvin promote cooperation, teamwork, and harmony with fellow employees. . . . Even though we have had our moments, I truly do appreciate your efforts, Melvin!" (Id.) "Melvin does a very good job of maintaining our buildings and grounds in Lincoln. He has made significant progress in working with other employees and supervisors. I appreciate all your efforts and good work!!" (Id.)
On or about October 12, 2000, the plaintiff became upset, raised papers in front of a coworker's face during a "loud, heated, verbal expression," and loudly proclaimed that the coworker was a liar. (Def.'s Index, filing 62, Attachment D-6.) Based on this incident and another brief encounter between the plaintiff and the same co-worker, the plaintiff's supervisors concluded that the plaintiff's intent was to continue to intimidate the co-worker. (See id.) As a result, on November 6, 2000, the plaintiff was given a three-day suspension for violating Section 2.46.455(e) and (j) of the Lincoln Municipal Code. (See id.)
The plaintiff's testimony concerning this incident is found in his evidence index, filing 92, at Attachment 1-A. His testimony is consistent with the summary I have provided.
The plaintiff continued to receive good performance evaluations, though his supervisors began to cite the need for the plaintiff to improve his interactions with others. (See Pl.'s Index, filing 92, Attachment 1-T.) The plaintiff's 2001 Employee Performance Evaluation, which was signed by the plaintiff on April 26, 2001, contains the following comments: "Melvin is a good willing worker, very helpful when asked to assist with projects. . . . A target for growth is the ability to get along with all employees." (Id. (comment dated February 6, 2001).) "Melvin is a good worker. He is very helpful when asked to work on a specific project. . . . Continued efforts to improve relationships with fellow employees will enhance Melvin's performance." (Id.) "Melvin does a good job of maintaining the building and grounds for our Lincoln Production facilities. We look forward to your continued committment [sic] to improve your working relationships with city supervisors and other city employees and general public." (Id. (comment dated March 2, 2001).) "Melvin's interactions with others is an area needing his serious attention. His work on the 51st station, overtime to allow the contractor to meet deadlines is commendable." (Id. (comment dated April 5, 2001).) In addition, Allen Abbott, who was the Director of the Public Works and Utilities Department, (see Def.'s Index, filing 62, Attachment D, Abbott Aff. ¶ 1), attached the following comment to the plaintiff's evaluation.
I have thought long and hard about signing this performance evaluation for Mr. Moore. The comments in the evaluation certainly do not reflect the time and effort that have been spent with Mr. Moore this past year because of his relationship and interaction with fellow employees. While Mr. Moore may do the jobs assigned to him in a satisfactory manner, the disruption that has resulted because of his inability to interact with others and the impact on production because of this disruption has not been discussed. I have not personally supervised or observed Mr. Moore[']s performance. Therefore, I cannot demand a change in the rating given. I am attaching this note to Mr. Moore's evaluation to make it clear that I expect the next evaluation to discuss more completely the progress that has been made in the behavior as well as a more detailed discussion of the impact this progress or lack of progress has had on the productivity and efficiency of the operations with which Mr. Moore is involved. These comments are directed to not only Mr. Moore but the supervisors responsible for his evaluation.
(Index of Evid. in Supp. of Def.'s Br. in Reply to Pl.'s Opp'n to City's Mot. for Summ. J., filing 111, Exhibit 1, Attachment A.)
On May 9, 2001, as the plaintiff was driving home, he found himself behind a Natkin Service van stopped in the roadway. (See Def.'s Index, filing 62, Attachment A, Tr. at 29:1-13.) The plaintiff could not see any reason why the van had stopped, and after he tapped his horn, the van began to move. (See id.) The plaintiff soon took the opportunity to move quickly around the van and into another traffic lane, but the van accelerated and cut the plaintiff off. (See id., Attachment A, Tr. at 29:9-20.) When the plaintiff stopped behind the van at the next traffic light, he observed the driver of the van "flipping [him] off and laughing." (Id., Attachment B, Moore Dep. at 111:1-5.) The van soon pulled into a parking lot, and the plaintiff followed. There the plaintiff exited his vehicle, approached the driver of the van, and asked, "Why you driving like that?" (Id., Attachment B, Moore Dep. at 111:12-14.) The driver of the van replied, "I don't know what you're talking about." (Id., Attachment B, Moore Dep. at 111:14-15.) This exchange was repeated, and, before leaving the scene, the plaintiff told the driver, in essence, "[you're] lucky I didn't smack [you] or hit [you]." (Id., Attachment B, Moore Dep. at 111:18-21.) The plaintiff drove home and immediately telephoned Natkin Service to complain about the driver. (Id., Attachment B, Moore Dep. at 111:22-25; 117:19-21.) The record indicates that the plaintiff spoke to a Mr. Jerry McGovern at Natkin Service. (See id., Attachment B, Moore Dep. at 117:22-118:3; Attachment C, Tr. at 5:2-12.) According to Mr. McGovern, the plaintiff said that, had he not been scheduled to appear in court on an assault charge, he would have "smacked" the Natkin driver. (See id., Attachment C, Tr. at 8:21-9:4.) McGovern also states that the plaintiff said that he would have the Natkin driver thrown off the water department property if he appeared there. (See id.) McGovern investigated the incident, and on June 4, 2001, he submitted to the defendant a letter describing his investigation and his conversation with the plaintiff. (See id., Attachment C, Tr. at 5:13-6:17; Attachment D-1.)
There is evidence that Natkin Service drivers go regularly to the City water department. (See Def.'s Index, filing 62, Attachment C, Tr. at 9:6-9.)
The defendant too investigated the incident, and, following a pre-disciplinary hearing, Allan Abbott terminated the plaintiff's employment. (See Def.'s Index, filing 62, Attachment D-3.) The termination letter issued to the plaintiff on June 22, 2001, states,
In short, this latest incident and your history of similar incidents for which you have been disciplined are in violation of Sections 2.76.445(e) and (j) of the Lincoln Municipal Code. This incident and your other incidents involve offensive conduct toward the public or other employees and constitute acts unbecoming to an employee of the City[,] requiring the imposition of severe discipline. In as much as prior suspensions, referrals to the Employee Assistance Program, counseling and mediation, have failed in the City's attempts to correct your behavior, you leave me with no option but to terminate your employment with the City effective July 10, 2001[,] as outlined above.
A final basis for my decision to terminate your employment relates to the falsification of your employment application. In the employment application you submitted on January 9, 1987[,] which was resubmitted on May 27, 1987[,] you stated you had not been convicted of a criminal offense other than a minor traffic violation. In fact, you were convicted of disturbing the peace and resisting arrest on September 9, 1986. By signing your application you acknowledged that you "Understand that any false information I record in the application will be sufficient reason for rejection of the application or termination of my employment."
(Def.'s Index, filing 62, Attachment D-3.)
On December 12, 2002, the plaintiff filed his amended complaint against the defendant, seeking declaratory relief, an injunction, and damages stemming from his termination. (See Am. Compl., filing 13.) The amended complaint sets forth five causes of action: The first alleges race discrimination in violation of Title VII; the second alleges race discrimination and retaliation in violation of 42 U.S.C. § 1983 and "The Equal Protection Clause of the United States Constitution," (Am. Compl., filing 13, ¶ 39); the third alleges retaliation in violation of Title VII; the fourth alleges discrimination in violation of the NFEPA; and the fifth alleges retaliation in violation of the NFEPA. However, as I noted in the Memorandum and Order on Motion to Strike Portions of Plaintiff's Filings No. 91 and 92, and Related Motions, (filing 107), "the issues now are limited to a case of disparate treatment under 42 U.S.C. § 2000[e] (Title VII) for termination from [the plaintiff's] employment for racial reasons." (Filing 107 at 3-4.) In other words, only the first cause of action set forth in the amended complaint remains viable. The defendant has moved for summary judgment, (see filing 60), and my analysis of this motion is set forth below.
II. STANDARD OF REVIEW
A motion for summary judgment shall be granted by the court when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A "material" fact is one "that might affect the outcome of the suit under the governing law. . . ."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists when there is sufficient evidence favoring the party opposing the motion for a jury to return a verdict for that party. Id. In determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party.Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). If the moving party meets the initial burden of establishing the nonexistence of a genuine issue, then the burden shifts to the nonmoving party to produce evidence of the existence of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The nonmoving party "must present affirmative evidence in order to defeat a properly supported motion for summary judgment," Anderson, 477 U.S. at 257, and "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial,"id. at 256 (citing Federal Rule of Civil Procedure 56(e)).
III. ANALYSIS
"Title VII . . . prohibit[s] an employer from discriminating against an employee with respect to his compensation, terms, or conditions of employment on account of his race, color, religion, sex, or national origin." Griffith v. City of Des Moines, 387 F.3d 733, 734 (8th Cir. 2004). The plaintiff has directed me to no direct evidence that racial discrimination motivated his termination. See id. at 736 (defining "direct evidence"). As a result, he "must produce sufficient circumstantial evidence of illegal discrimination under the McDonnell Douglas paradigm — by presenting a prima facie case of intentional discrimination plus sufficient evidence that one or more of the City's proffered nondiscriminatory reasons is a pretext for unlawful discrimination." Id. at 736-37; see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). The defendant argues that the plaintiff can present neither a prima facie case nor sufficient evidence that the defendant's nondiscriminatory reasons for firing him are pretexts for discrimination. My analysis of these arguments follows.A. Whether the Plaintiff Can Establish a Prima Facie Case of Discrimination
The plaintiff's first task is to establish a prima facie case of race discrimination. To do so, the plaintiff must show that he is a member of a protected group; that he was meeting the legitimate expectations of his employer; that he suffered an adverse employment action; and that circumstances exist which give rise to an inference of discrimination. See Cherry v. Ritenour School Dist., 361 F.3d 474, 478 (8th Cir. 2004);Wheeler v. Aventis Pharmaceuticals, 360 F.3d 853, 857 (8th Cir. 2004). The defendant concedes that the plaintiff is a member of a protected group and that he suffered an adverse employment action. However, it argues that the plaintiff is unable to show that he was meeting the defendant's legitimate expectations or that circumstances exist which give rise to an inference of discrimination. I shall analyze each of these arguments in turn.
The defendant argues first that the plaintiff cannot show that he was meeting the defendant's legitimate expectations. Although the defendant admits that the plaintiff performed "the actual hands-on duties involved with [his] position" in a "generally acceptable" manner, it argues that the plaintiff "failed to meet the City's expectations in other areas of his job." (See filing 61 at 24.) Specifically, the defendant argues that the plaintiff was unable or unwilling to "establish and maintain effective working relationships with co-workers and the general public." (Id.) It is true that the "[a]bility to establish and maintain effective working relationships with co-workers and the general public" is listed as a "desirable" ability for Utility Plant Mechanics, (see Def.'s Index, filing 62, Attachment G-1 at 1-2), and the plaintiff's shortcomings in this regard are well-documented. Nevertheless, it must be borne in mind that "[t]he threshold of proof necessary to make a prima facie case is minimal." Johnson v. Arkansas State Police, 10 F.3d 547, 551 (8th Cir. 1993). After reviewing the record in a light favorable to the plaintiff and drawing all reasonable inferences in his favor, I cannot conclude that the plaintiff failed to clear the "minimal" prima facie threshold. The record here is somewhat similar to the facts described in Cherry v. Ritenour School Dist., 361 F.3d 474, 477 (8th Cir. 2004), wherein the plaintiff received job counseling and performance reviews indicating that she "need[ed] improvement" and "[did] not meet expectations" in several aspects of her job, including the ability to "demonstrate positive interpersonal relationships with district personnel." Indeed, Cherry's "failure to maintain positive interpersonal relationships" was described as "job threatening." Id. Nevertheless, the Eighth Circuit disapproved of the district court's conclusion that Cherry failed to demonstrate that she was meeting the school district's legitimate expectations. See id. at 478. Instead, the court assumed that Cherry had carried her burden of establishing a prima facie case, and proceeded to the next stages of the McDonnell Douglas framework. See id. Similarly, in view of the plaintiff's favorable reviews from his immediate supervisors, I shall assume that the plaintiff has satisfied his prima facie burden of establishing that he met his employer's legitimate expectations. I defer further consideration of the plaintiff's inability to maintain effective working relationships until the latter stages of the McDonnell Douglas framework.
Next, the defendant argues that the plaintiff cannot establish that "circumstances exist which give rise to an inference of discrimination." Wheeler v. Aventis Pharmaceuticals, 360 F.3d 853, 857 (8th Cir. 2004) (citing Williams v. Ford Motor Co., 14 F.3d 1305, 1308 (8th Cir. 1994)). A plaintiff can make this showing "by producing facts that similarly-situated employees, who are not black, were treated differently." Id. In other words, I am to consider "whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways." Id. (citing Williams, 14 F.3d at 1309). The plaintiff's burden is "not onerous," though it becomes more "rigorous" at the pretext stage of theMcDonnell Douglas framework. Wheeler, 360 F.3d at 857 (quoting Williams, 14 F.3d at 1308).
In Gilmore v. AT T, 319 F.3d 1042, 1046 (8th Cir. 2003), the Eighth Circuit stated that in order to satisfy his prima facie burden, a plaintiff must establish "by a preponderance of the evidence that there were individuals similarly situated in all respects to [him] who were treated differently." (Citing Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000)) (emphasis added). This statement seems in conflict with the Eighth Circuit's prior holding that "[t]he prima facie case requires only that [the plaintiff] establish facts adequate to permit an inference of discrimination," and its admonishment that courts not "conflate the prima facie case with the ultimate issue of discrimination." Williams v. Ford Motor Co., 14 F.3d 1305, 1308 (8th Cir. 1994). While I am not free to disregard Eighth Circuit precedent, it is difficult to reconcile Gilmore with the Eighth Circuit's recent reaffirmation of the notion that the plaintiff's prima facie burden is "not onerous." Wheeler v. Aventis Pharmaceuticals, 360 F.3d 853, 857 (8th Cir. 2004) (citing Williams, 14 F.3d at 1308). Furthermore, it seems to me that it is not appropriate at this stage of the case to weigh the evidence to determine whether it preponderates in favor of the plaintiff; instead, I must only determine whether there is sufficient evidence to raise a genuine issue of material fact for trial. Under the circumstances, I shall follow the guidance provided in the Eighth Circuit's more recent cases to the extent that Gilmore conflicts with them.
The plaintiff argues that he is similarly situated to Charles Heikes, a white employee in the Lincoln Water System Distribution Division. The record indicates that Heikes was involved in the following four incidents. First, in July 1999, Heikes admitted that he honked his horn and threw up his hand at the driver of another vehicle. (See Def.'s Index, filing 62, Attachment K-1.) I note parenthetically that the other driver claimed that Heikes extended his middle finger. (See id.) Heikes was advised to "take the necessary steps to make sure these types of actions are not part of your day to day functions," warned that "failure to comply with these requests will result in further disciplinary actions," and encouraged to write a letter of apology to the other driver. (See id.) Second, on April 5, 2000, Heikes was given a written warning and was ordered to take a defensive driving class after his superiors received another complaint about his aggressive driving. (See id., Attachment K-2.) On this occasion, Heikes was found to have increased his speed when another driver attempted to change lanes in front of him, thereby "almost" running the other driver off the road. (Id.) Third, on January 24, 2001, Heikes was observed speeding through a school zone. (See id., Attachment K-3 at 1.) Although he received initially a written reprimand, Heikes' discipline was reduced to a written warning after the defendant discovered inaccuracies in the complainant's statement. (See id. at 3-4.) Finally, a citizen complained about Heike's aggressive driving on May 19, 2001. (See id., Attachment K-4 at 1.) According to the complaint, Heikes appeared angry, drove "in an aggressive manner at a rate of speed that was faster than the flow of traffic on that morning," and made several lane changes (Id.) Heikes was issued a written reprimand and warned that "future violations of this type can result in suspensions or terminations from City service." (Id. at 4.) Based on this evidence, the plaintiff asserts that Heikes engaged in conduct that was comparable to the plaintiff's encounter with the Natkin Service driver, but the plaintiff was disciplined much more harshly.
In his brief, the plaintiff also argues that he was treated differently than a Mr. Schuttler. (See filing 91 at 7.) He argues, "Plaintiff was verbally attacked by a Francis Schuttler and the City made both the Plaintiff and Mr. Schuttler go to Mediation." (Id. at 6.) The evidence submitted by the plaintiff indicates that he and Mr. Schuttler feuded in early 1995 and in 1999, but there is no indication that the two men engaged in similar conduct and were treated differently. (See Pl.'s Index, filing 92, Attachment F at 2-5.) The plaintiff's evidence does not seem to identify circumstances which give rise to an inference of discrimination; thus, it seems to me that the evidence concerning Mr. Schuttler is not helpful to the plaintiff's case.
The defendant argues that Heikes is not similarly situated to the plaintiff for two reasons: First, the defendant points out that Heikes did not "deal with the same supervisor as Moore." (Filing 61 at 29.) Second, the defendant argues that Heikes "did not engage in the same conduct, without any mitigating or distinguishing circumstances," as did the plaintiff. (Id.) I shall analyze each of these arguments in turn.
It is true that "individuals used as comparators `must have dealt with the same supervisor'" as the plaintiff. Gilmore v. AT T, 319 F.3d 1042, 1046 (8th Cir. 2003) (quoting Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000)); see also Williams v. Ford Motor Co., 14 F.3d 1305, 1309 n. 2 (8th Cir. 1994). Also, it is undisputed that the plaintiff's immediate supervisors were different from Heikes'. (See Def.'s Index, filing 62, Attachment D, Abbott Aff. ¶¶ 17-18.) According to Director Abbott's uncontradicted affidavit, these immediate supervisors "would have been . . . most involved with and responsible for . . . meting out discipline [during the relevant time frame], subject to Department policy that any disciplinary action stricter than a written warning must be approved by the Director." (Id.) However, the record does not foreclose the possibility that Director Abbott might take a direct role in meting out discipline. Indeed, the record supports the inference that Director Abbott took a direct role in the plaintiff's termination, (see Def.'s Index, filing 62, Attachment D-3), and I must assume that he could have done so in Heikes' case as well. In short, I find that Director Abbott's overarching supervisory responsibility provides a sufficient basis for concluding, at the prima facie stage, that Heikes and the plaintiff "dealt with the same supervisor."
The defendant has also argued that Heikes "did not engage in the same conduct, without any mitigating or distinguishing circumstances," as did the plaintiff. (Filing 61 at 29.) Preliminarily, I note that Heikes' conduct is similar enough to the plaintiff's encounter with the Natkin Services driver to satisfy the minimal requirements of a prima facie case. See Wheeler v. Aventis Pharmaceuticals, 360 F.3d 853, 857-58 (8th Cir. 2004). However, there is no evidence that Heikes responded falsely to questions put to him on his employment application, as the plaintiff did. Indeed, the plaintiff has identified no comparators who engaged in such conduct and received more favorable treatment. Under the circumstances, I must conclude that the plaintiff has failed to make the required prima facie showing "by producing facts that similarlysituated employees, who are not black, were treated differently." Id. at 857.
The plaintiff has failed to establish that "circumstances exist which give rise to an inference of discrimination." Wheeler v. Aventis Pharmaceuticals, 360 F.3d 853, 857 (8th Cir. 2004). Therefore, he has not established a prima facie of race discrimination, and I must conclude that the defendant is entitled to judgment as a matter of law. In addition, for the reasons that follow, I find that even if the plaintiff had established a prima facie case of race discrimination, the defendant would nevertheless be entitled to summary judgment.
B. Whether the Defendant's Nondiscriminatory Reasons for Firing the Plaintiff Were Pretexts for Discrimination
If I were to assume that the plaintiff had established a prima facie case of race discrimination, my analysis would progress to the next phase of the McDonnell Douglas burden-shifting framework. At this phase, the defendant is required to articulate a legitimate, nondiscriminatory reason for its employment action.See Cherry v. Ritenour School Dist., 361 F.3d 474, 478 (8th Cir. 2004). The defendant's burden is one of production, not persuasion. See id. Here, the defendant has submitted two nondiscriminatory explanations for its decision to terminate the plaintiff's employment: 1) the plaintiff engaged in threatening behavior after several warnings to cease such conduct; and 2) the plaintiff falsified information on his employment application. (See filing 61 at 33.) I find that the defendant has satisfied its burden of production. Therefore, the plaintiff is required to demonstrate that the defendant's explanations are merely pretexts for unlawful discrimination.See Wheeler v. Aventis Pharmaceuticals, 360 F.3d 853, 857 (8th Cir. 2004).
Preliminarily, I note that one of the most common methods of demonstrating that an employer's explanations are pretexts is to demonstrate that similarly situated employees of a different race were treated more favorably. See Cherry v. Ritenour School Dist., 361 F.3d 474, 479 (8th Cir. 2004) (quoting 1 Lex K. Larson, Employment Discrimination § 8.04 (2d ed. 2001)). In this case, however, the plaintiff's argument that Charles Heikes was similarly situated to him cannot survive the "rigorous" test that must be applied at the pretext stage of the framework. See Wheeler v. Aventis Pharmaceuticals, 360 F.3d 853, 858 (8th Cir. 2004). As I noted previously, "employees are similarly situated only when they are involved in or accused of the same offense and are disciplined in different ways." Id. (citing Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994)). However, under the more rigorous test that I must now apply, the employees must be similarly situated in "all relevant respects."Id. (citing Lanear v. Safeway Grocery, 843 F.2d 298, 301 (8th Cir. 1988)). For example, if I find the offenses committed by the employees "differed substantially" or "involved differing levels of misconduct towards others," the employees are not similarly situated. Id. As I apply this test to the instant case, it is apparent that the offenses committed by Heikes and the plaintiff involved different levels of misconduct towards others. Although both men committed offenses that involved other drivers on the roadway, the plaintiff's offense was a direct personal confrontation that merely stemmed from a traffic incident. Unlike the plaintiff, Heikes did not follow another driver into a parking lot, exit his vehicle, and confront that driver. Furthermore, the plaintiff admits that he told the Natkin driver that he was lucky that the plaintiff did not strike him. There is no evidence that Heikes made threats of this sort. In sum, the defendant "was not obligated to treat the two behaviors as substantially similar because they involved objectively different conduct." Wheeler, 360 F.3d at 858. Thus, the plaintiff cannot demonstrate pretext by showing that Heikes was a similarly situated employee who was treated more favorably.
As I noted previously, there is no evidence that the plaintiff was treated less favorably than Mr. Schuttler. (See supra note 8.) Therefore, the plaintiff's evidence concerning his quarrels with Mr. Schuttler does not help him to establish pretext.
The plaintiff argues that his positive performance evaluations demonstrate that his "previous problems clearly appear to have been resolved." (Filing 91 at 9.) I take the plaintiff's position to be that the defendant's first explanation for terminating him is a pretext because the plaintiff resolved his behavior problems prior to his termination. However, the record cannot support such a finding. The plaintiff had been suspended on three prior occasions because of his problems interacting with others. He received counseling and a number of warnings to improve his conduct or face stricter discipline, including termination. Within two weeks of the plaintiff's encounter with the Natkin Service driver, all of the plaintiff's supervisors advised him to improve his interaction skills. Abbott's comments, which were appended to the plaintiff's 2001 evaluation, clearly demonstrate that the plaintiff's behavior problems had not been deemed resolved by the defendant. Under these circumstances, and viewing the record in a light favorable to the plaintiff, I must reject the plaintiff's argument that the defendant used his history of behavior problems as a pretext for race discrimination. No reasonable factfinder could draw such a conclusion from the record.
This argument is an extension of the plaintiff's prima facie showing that he was meeting the defendant's legitimate expectations. Although I found that the plaintiff's positive performance evaluations were sufficient to satisfy the plaintiff's minimal prima facie burden, it does not follow that the evidence of the plaintiff's positive evaluations is sufficient to allow a reasonable factfinder to conclude that the defendant used the plaintiff's behavioral problems as a pretext for race discrimination. See Cherry v. Ritenour School Dist., 361 F.3d 474, 479 (8th Cir. 2004).
The plaintiff has also failed to set forth sufficient evidence from which a jury could conclude that the defendant used the plaintiff's false responses on his employment application as a pretext for unlawful discrimination. On this point, the plaintiff argues only that he "has never been told that he was being disciplined for not reporting his misdemeanor convictions on his application." (Filing 91 at 9.) However, the plaintiff's argument is not supported by the record; indeed, the notice of predisciplinary hearing dated June 8, 2001, contradicts it directly. (See Def.'s Index, filing 62, Attachment D-2.) In short, I find that the plaintiff has not carried his burden of demonstrating pretext.
Parenthetically, I note that the plaintiff suggests that "his arrest record and failure to mention said acts though known to the defendant only bec[o]me a factor when he wants his job back." (Filing 91 at 9 (citation omitted).) I am not persuaded that the plaintiff's "failure to mention" his criminal record is only relevant for the purposes of reinstatement, as the plaintiff has offered no substantive argument that his false application does not provide an adequate ground for his termination. I also note that I have been referred to no evidence that establishes the approximate date of the defendant's discovery of the plaintiff's false response, and there is no evidence that the defendant excused the plaintiff's misstatement.
Finally, the plaintiff argues,
The reason that Mr. Moore was terminated is because it was well known that Clarence Owen would be retiring and that Mr. Moore would be the logical candidate to replace him. In order to avoid that issue the defendant terminated his employment.
(Filing 91 at 9.) This argument is not accompanied by a citation to the record, and I am not aware of any evidence that supports it. Therefore it cannot forestall summary judgment.
IT IS ORDERED that the defendant's motion for summary judgment, filing 60, is granted.