Ann BOGREN, Aрpellant, v. State of MINNESOTA; Minnesota Department of Public Safety; Donald Davis, Commissioner of the Department of Public Safety, in his official capacity; Minnesota State Patrol; Ann Beers, Chief of the State Patrol, in her official capacity; Lieutenant Thomas Fraser of the State Patrol, personally and individually; Lieutenant Lori Hodapp of the State Patrol, personally and individually; Lieutenant Colonel Stephen Mengelkoch of the State Patrol, personally and individually, Appellees.
No. 99-3516.
United States Court of Appeals, Eighth Circuit.
Submitted: June 16, 2000. Filed: Dec. 22, 2000.
Rehearing and Rehearing En Banc Denied Feb. 15, 2001.
236 F.3d 399
III
The decision of the magistrate judge is AFFIRMED.
Gary R. Cunningham, St. Paul, and Gregg M. Corwin, St. Louis Park, MN, argued, (Timothy D. Webb and Susanne J. Fischer, on the brief), for appellee.
Before LOKEN, ROSS, and HANSEN, Circuit Judges.
Ann Bogren, a former probationary trooper with the Minnesota State Patrol, brings this action against the state alleging she was discriminated against on account of her race and gender and retaliated against in violation of Title VII of the Civil Rights Act of 1964,
I.
Bogren was accepted into the Minnesota State Patrol Academy in November 1994 through a program designed to recruit women and minority applicants into the patrol. Bogren graduated from the academy in February 1995, the first black female to do so. Around the same time, the Minnesota Department of Public Safety launched an investigation into the training environment at the academy. The investigation was spawned by complaints from two former female cadets that academy instructors engaged in sexually harassing and discriminatory conduct. Bogren was interviewed during the investigation but did not identify any incidents where she was harassed or discriminated against.
Following her graduation from the academy, Bogren began the patrol‘s phased field training program. In general, her field training officers (FTOs) provided favorable reports on her performance, but more than one identified her driving skills as an area requiring improvement. Her FTOs commented on her ability to com
Despite Polansky‘s concerns over her driving skills, Bogren advanced in May 1995 beyond the field training program, was assigned a patrol car and began solo patrol. As a solo probationary patrol officer, Bogren generally received above average or satisfactory marks from her initial supervising lieutenant, Lieutenant Al Kutz, yet her driving problems continued to be a concern. On May 24, 1995, Bogren struck a metering light with her patrol car, knocking the light over. Another trooper, who happened upon Bogren and the downed metering light, asked Bogren how the light was knocked over. Bogren admitted that she struck the light, but when the officer informed Bogren that she needed to file an accident report with the patrol, Bogren was hesitant and had to be coaxed to make the report. Although Bogren filed the report the same day, the trooper reported to Kutz that she had to convince Bogren to make the report and that Bogren was not happy about it. Kutz later questioned Bogren about the light and specifically asked whether any damage occurred to her patrol car. Bogren denied damage but upon Kutz‘s inspection he noted that there was some. Bogren was also involved in an incident in August 1995 in which she made a U-turn on an interstate entrance, causing two other vehicles to crash.
On the evening of October 22, 1995, Bogren, while off-duty, went to the home of her former boyfriend, Steve Johnson, to retrieve a set of keys. While in Johnson‘s home, Bogren attempted to take a set of oriental tea cups shе had previously given Johnson, and an argument ensued. During the argument, according to Bogren, Johnson‘s dog jumped up on her, causing her to drop the cups. She then left, and Johnson called the local police department to report the cup-breaking incident. He also called the patrol office and left a message complaining about Bogren‘s conduct.
A local police officer responded to Johnson‘s call. Johnson told the officer that Bogren threw the cups at his feet. The same officer later called Bogren to ask her about the incident. Bogren admittеd to the officer that she was at Johnson‘s home, that an argument occurred, and that cups were broken. The officer informed Bogren that he would be issuing and sending her a citation. In the officer‘s report of the incident, he noted that Bogren informed him that she threw down the cups, although Bogren denies ever making such an admission. Bogren received a citation for criminal damage to property.
Lieutenant Thomas Fraser, the patrol supervisor on duty the night of the incident, returned Johnson‘s call around midnight to discuss the complaint against Bogren. He also contacted the local policе officer who responded to Johnson‘s call. The next morning, Fraser relayed Johnson‘s complaint to his supervisor, Captain Stephen Mengelkoch, who in turn filed a complaint with the patrol‘s internal affairs division, reporting a charge that Bogren allegedly engaged in conduct unbecoming an officer. The task of investigating the complaint was ultimately assigned to Fraser. Fraser conducted taped interviews with Bogren, Johnson and a female companion of Johnson‘s who was at Johnson‘s home on the night of the incident. In his report, Fraser concluded that the charge of conduct unbecoming an officer was sustained. He further reported that Bogren was “untruthful and evasive” during her taped interview with him and that his investigation revealed Bogren had trouble controlling her anger.
Following his investigation of the incident at Johnson‘s home, Fraser recommended to Captain Mengelkoch that Bogren‘s employment with the patrol be terminated. Captain Mengelkoch agreed and assigned Lieutenant Lori Hodapp the responsibility of preparing a supervisors’ report documenting the reasons for Bogren‘s termination. The final decision to terminate Bogren was made by Michael Chabries, Chief of thе Patrol. Chabries stated in an affidavit that he made the termination decision based on conversations with and reports by Hodapp, Fraser and Mengelkoch. Bogren was notified of the termination decision on November 8, 1995, and was ultimately terminated on November 14, 1995. Shortly thereafter, Bogren pleaded guilty to the reduced charge of petty misdemeanor criminal damage to property.
II.
We review a district court‘s issuance of summary judgment de novo, applying the same standards as those employed by the district court. See Callas Enters., Inc. v. Travelers Indem. Co. of Am., 193 F.3d 952, 955 (8th Cir. 1999). Under
A. Discriminatory Discharge
Bogren advances theories of discriminatory discharge and hostile work environment in support of her Title VII claims against the state. As the district court recognized, her Title VII discrimina
Following the Supreme Court‘s recent decision in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2108-09, 147 L.Ed.2d 105 (2000), a plaintiff‘s prima facie case of discrimination, combined with sufficient evidence from which a reasonable fact finder could disbelieve an employer‘s nondiscriminatory explanation and mаke the ultimate fact-finding that illegal discrimination occurred, may form the requisite evidentiary basis upon which to submit to a jury the question of an employer‘s intentional, unlawful discrimination.3
The district court assumed, as we do on appeal, that Bogren set forth sufficient evidence to support a prima facie case of discriminatory discharge. The court concluded, however, that she failed to establish a genuine issue that the state‘s proffered reason for her termination was a pretext for discrimination. After a thorough review of the record, we agree with the district court and concludе Bogren has not demonstrated that the state‘s proffered nondiscriminatory reason for her termination is pretextual.
The state meets its burden of advancing a legitimate, nondiscriminatory reason for Bogren‘s termination from her probationary status. It contends Bogren‘s termination was triggered by the incident at Johnson‘s home, but that the decision was based on a combination of considerations, including: 1) Bogren‘s conduct at Johnson‘s home; 2) her poor driving performance; 3) concerns over her accountability; 4) her evasiveness during the investigation of Johnson‘s complaint; and 5) concern that she might present a disciplinary problem after completion of her probationary period. We find sufficient evidence in the record to support the state‘s proffered explanation. Consequently, any presumption of discrimination “drops out of the picture.” St. Mary‘s Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).
Bogren therefore bears the burden to produce sufficient evidence from which a reasonable fact finder could conclude that the state‘s explanation is pretextual. As proof of pretext, Bogren presents evidence that white male troopers were not treated as harshly when disciplinary or performance issues arose in the past. While we recognize that instances of disparate treatment may be enough to present a jury question of whether an employer‘s proffered explanation is pretextual, Bogren must show that these other troopers were “similarly situated [to her] in all rele
We agree with the premise underlying the district court‘s conclusion; troopers beyond the probationary period are not similarly situated to a probationary trooper. See Blanding v. Pennsylvania State Police, 12 F.3d 1303, 1309-10 (3d Cir. 1993) (recognizing that tenured troopers are not similarly situated to probationary troopers); see also Ghane v. West, 148 F.3d 979, 982 (8th Cir. 1998) (rejecting comparisons to similarly-situated, nonpro
We respectfully disagree with the district court‘s conclusion that Bogren only compared herself to nonprobationary troopers. On appeal, Bogren presents scant evidence that the patrol did not discipline several white male probationary officers when citizen complaints were lodged against the troopers or when disciplinary issues arose. The same probationary officers were also identified in Bogren‘s response to the state‘s memorandum in support of summary judgment.5 The state argues, and we agree, however, that the probationary-trooper evidence offered by Bogren is insufficient to establish pretext. “To be probative evidence of pretext, the misconduct of more leniently disciplined employees must be of ‘comparable seriousness.‘” Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994) (quoting Lanear v. Safeway Grocery, 843 F.2d 298, 301 (8th Cir. 1988)). Bogren prеsents no evidence that any of the probationary officers ever received a comparable criminal citation nor that concerns over their accountability, driving performance or tendency to prevaricate were raised during their probationary period. Nor does she show that they were involved in motor vehicle accidents while on patrol. Rather, the record reflects only that two probationary troopers received a single citizen complaint, both of which were investigated and found to be unsustained, and a third received two citizen cоmplaints. Moreover, Bogren has not shown that the supervisor or supervisors responsible for her termination were also involved in the disciplinary action, or lack thereof, of the white male probationary officers. See id. (recognizing that individuals are generally not similarly situated when different decision makers are involved in the respective disciplinary action).
Bogren advances other arguments in support of her burden. She argues there is evidence of “blatant lies and inaccuracies” in the supervisors’ report recommending her termination. For the most part, the supervisors’ report merely presents issues and concerns raised by other troopers during Bogren‘s probationary period, which are supported by the record, and summarizes the tea-cup incident at Johnson‘s home. We find no evidence supporting Bogren‘s assertion that the report contains blatant lies, included by her supervisors to justify her termination, nor any evidence related to the report‘s preparation which would cause a fact finder to question the explanation offered by the state.
Bogren also contends the fact that she is the only black female trooper (and one of few black troopers) ever employed by the patrol is circumstantial proof of pretext. In essence, she advances simplistic demographic evidence of the patrol‘s workforce to meet her pretext burden. In Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 778 (8th Cir. 1995), we recognized that statistical evidence “may support a finding of pretext, particularly where there are independent, direct grounds for disbelieving the employer‘s explanation for discharge.” (internal quotations omitted); see also Kim v. Nash Finch Co., 123 F.3d 1046, 1059 (8th Cir. 1997) (in addition to other evidence that the proffered reason was false, pretext was established by evidenсe that out of 3,500 employees, only 2 management employees in 25 years were nonwhite). The evidence Bogren presents, however, is insufficient to establish a genuine issue of pretext for two reasons. First, there is no independent evidence to support a finding of pretext. Second, we conclude the generic type of employment statistics presented by Bogren are not probative of the reason for her termination. See Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1319 (10th Cir. 1999) (“[B]ecause overall employment statistics have little bearing on the specific intentions of the employer in making particular hiring decisions, such statistical evidence will rarely suffice to rebut an employer‘s legitimate, nondiscriminatory reasons for a particular adverse employment action.“); LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 848 (1st Cir. 1993) (“[S]tatistical evidence in a disparate treatment case, in and of itself, rarely suffices to rebut an employer‘s legitimate, nondiscriminatory rationale for its decision to dismiss an individual employee.“); cf. Hutson, 63 F.3d at 777 (statistical evidence is probative of pretext when it analyzes the treatment of comparable employees).
In sum, we conclude Bogren has not presented sufficient evidence from which a reasonable fаct finder could disbelieve the state‘s nondiscriminatory explanation for
B. Hostile Work Environment
Bogren‘s Title VII hostile work environment theory is based primarily on alleged harassing comments made and conduct engaged in by academy instructors during Bogren‘s academy training. She also advances that she was subjected to a hostile work environment when her supervisors presumed she lied or was evasive during the investigation of the tea-cup incident and when they determined she was not accountable for hеr actions as a trooper. To establish a Title VII hostile work environment claim, Bogren must establish the following: “(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; (4) the harassment affected a term, condition, or privilege of employment; and (5) her employer knew or should have known of the harassment and failed to take prompt and effective remedial action.”6 Austin v. Minnesota Mining & Mfg. Co., 193 F.3d 992, 994 (8th Cir. 1999). The district court determined that Bogren had not shown any evidence of conduct creating a hostile work environment. We agree.
Bogren‘s supervisors’ conclusions that she was evasive and unaccountable do not, as a matter of law, rise to the level of a hostile work environment. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (“Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII‘s purview.” (quotation omitted)). As for the environment at the academy, Bogren identifies no instances in which she was subjected to racially or sexually harassing conduct or language, nor does she demonstrate that race or gender played any part in how she was treated by the instructors. When interviewed about the former cadets’ complaints, Bogren made a general complaint about cadets being treated inappropriately but stated there were incidents involving both males and females. See Kopp v. Samaritan Health Sys., Inc., 13 F.3d 264, 269 (8th Cir. 1993) (stating the key issue in a hostile work environment claim “is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” (quotation omitted)).
C. Retaliation
Bogren next claims she was unlawfully terminated from the patrol for complaining to the investigator about harassing and discriminatory conduct at the academy. To establish a prima facie case of Title VII retaliation, Bogren must show: (1) she engaged in activity protected by Title VII; (2) she suffered an adverse employment action; and (3) a causal connection between her protected activity and the adverse employment action. See Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (en banc), cert. denied, 528 U.S. 818, 120 S.Ct. 59, 145 L.Ed.2d 51 (1999). The district court concluded Bogren‘s claim fails because she presents no evidence of the first element—that she engaged in activity protected by Title VII.
Title VII prohibits emplоyers from retaliating against employees for engaging in two broad categories of protected activity: 1) opposing any discrimination made unlawful by Title VII or 2) making a
III.
A. Equal Protection
We turn next to Bogren‘s claims against Lieutenants Fraser and Hodapp, and Captain Mengelkoch in their individual capacities. To begin, she brings a
B. § 1981
Bogren also seeks to recover against the individual defendants pursuant to
We need not weigh in on the question, however, because even assuming Bogren may maintain a § 1981 claim despite her at-will status, her claim fails on other grounds. As the district court recognized, a plaintiff must demonstrate purposeful discrimination to support a § 1981 claim, see General Bldg. Contractors Ass‘n v. Pennsylvania, 458 U.S. 375, 391, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982), and thus, the McDonnell Douglas burden-shifting framework is equally applicable on summary judgmеnt to a § 1981 claim, see Roark, 189 F.3d at 761. Because Bogren cannot meet her burden of demonstrating a genuine issue of pretext, which would give rise first to an inference of, and then be of sufficient strength to support an actual finding of, purposeful discrimination, her § 1981 claim fails.
C. § 1985
Lastly, Bogren claims the individual defendants conspired in violation of
Bogren suggests a fact finder could infer an agreement between the individual defendants to violate her rights based on their hand in preparing the supervisors’ report. She claims all three participated in its preparation and that the three included lies and inaccuracies in the report, or adopted the others’ lies, to justify her release from the patrol. As we have already said, we do not believe the record supports the allegedly insidious nature of the supervisors’ report that Bogren advances nor do we agree that a jury could infer an unlawful agreement merely because the three may have assisted in the report‘s preparation. Although the point of the report was to justify Bogren‘s termination, there is no evidence that the three superiors were motivated by Bogren‘s race or her gender in documenting the events included in the report or in recommending her termination. The record simply does not justify any inference that an agreement was made between the three to deprive Bogren of her right to equal protection.
IV.
For the foregoing reasons, we affirm the judgment of the district court.