*2 SHEPHERD, Cirсuit Judges. BEAM, Judge. Circuit Alireza appeals from the dis- trict court’s1 adverse grant of summary judgment in favor of Dr. Paula Lutz and 1. The Audrey Fleissig, Missouri, Honorable G. trict of to whom the case re- Magistrate Judge for the Eastern Dis- that the office, complaining (UMR) in Action Missouri-Rolla University of deroga- in a him had treated civil affairs discrimination possi- investigating while manner tory affirm. rights case. emails anonymous involvement ble *3 BACKGROUND I. student. to a female UMR sent most light the in facts the semester, recite Bakht- spring the During non-moving Bakhtiari, the to TA, assigned favorable was as a iari, position in his Co., Ins. Cigna Weyrauch party. Life freshman the re-write and redesign to Cir.2005). In the Classes laboratory syllabus. chemistry at Department Chemistry 2001, fall the оf However, la- 12, 2004. January on began na- Bakhtiari, an Iranian recruited UMR was in- month, Bakhtiari that same ter teaching assistant graduate tional, to be Sinn, of Chair Dr. Ekkehard formed Chemistry the in (TA) participant and UMR, that at Department Chemistry the to reported Bakhtiari program. Ph.D. TA, as a him to dismiss decided had UMR and his studies commenced and campus reason official immediately. No effective of part As January inTA as a work In Feb- given. ever was for his dismissal in an enrolled studies, Bakhtiari Ph.D. his officials 2004, administration UMR ruary with chemistry course inorganic advanced (IT) technology information the ordered beginning the semester Gary Long for Dr. computer Bakhtiari’s to freeze department the with satisfied Nоt January 2004, official- Bakhtiari In March account. course, in that received he grade ultimate UMR because as a withdrew ly August appeal grade filed a Bakhtiari payment for full tuition demanded officials excessively Long Dr. 2002, alleging that however, contin- Bakhtiari, that semester. course, and the mismanaged class, missed officials UMR with to сommunicate ued the hearing on A capriciously. graded account. email his status the about in November conducted matter though that even thought Bakhtiari un- remained grade Bakhtiari’s and account, the the placed been freeze had Unhappy procedure. that after changed pre- be would account contents communicated result, Bakhtiari this with 2005, and February least until served occa- numerous Lutz on Paula Dean with support record is evidence there and Janu- November between sions Nonetheless, UMR understanding. this about displeasure his express ary account email deleted officials request and outcome appeal grade contend May peri- time during this Also further action. onto the account contents backed-up to UMR’s complaints od, made Bakhtiari doing so. CDs before two regarding office affairs international August lawsuit brought Department Bakhtiari with compliance UMR’s retaliated had In (DHS) alleging regulations. Security Homeland regarding complaints his within emрloyee him a UMR October his com- to her process reported appeal grade affairs international and stu- immigration Bakhtiari met regarding she supervisor plaints alleged “special regis- also DHS’s they discussed issues. affairs dent nation- foreign § § requirements tration” under U.S.C. of contract law for breach
als. state course In thе estoppel. promissory filed 2003, Bakhtiari In December two CDs over UMR turned litigation, EEO Affirmative with UMR’s grievance 636(c). § to 28 U.S.C. pursuant parties, by consent disposition final ferred for containing Bakhtiari’s email ty account infor- intentionally destroyed evidence with a mation. Bakhtiari contends that while desire suppress Greyhound truth. parts of his email account are Lines, contained on Wade, Inc. v. CDs, a large portion the data is missing. Accordingly, Bakhtiari moved The district court did not abuse its for sanctions due to spoliation of evidence discretion in refusing to sanction UMR for with regard to missing email data. the alleged spoliation of evidence. UMR response, UMR submitted evidence to the offered credible IT evidence that it had district court that after IT department taken the appropriate steps to back-up copied the contents of the email account Bakhtiari’s electronic mail account onto CDs, onto the the account was automati- *4 CDs. The district court was entitled to cally deleted campus sys- automated credit explanations UMR’s when resolving tems maintenance. produced UMR also this evidentiary dispute and motion for evidence that parties third had access to sanctions. For example, UMR offered Bakhtiari’s account campus before officials several alternatives as to might what have it, froze and argued that this could account happened to allegedly missing emails, any for allegedly missing data. The dis- many of them Bakhtiari, attributable to or trict court denied sanctions, the motion for his representatives who had access to his finding no evidence that UMR acted with email account before it was frоzen. UMR intent destroy evidence. also presented evidence that Bakhtiari UMR subsequently moved for summary himself had asked individuals to delete judgment, which the district granted. court portions of his email account. Further The district court found that Bakhtiari’s more, we agree with the district court that prior complaints “protected were not aсtiv- the fact that deletion of electronic ac ity” for purposes of a retaliation cause of count occurred before this lawsuit was action event, and that in any UMR offered filed further undercuts Bakhtiari’s claims legitimate reasons terminating Bakhti- that UMR acted with a desire suppress ari’s TA appointment. regard With the truth. See id. (rejecting argument section 1981 and 1983 claims and state litigation “because likely, Grey claims, law the district court held that hound duty had a to preserve ... data” because Bakhtiari sued UMR only officials and noting that “ultimate focus” impos in their official capacities, they enti- were ing spoliation is “the sanctions intentional tled to Elevеnth Amendment destruction of evidence indicating a desire to suppress truth, not the prospect of II. DISCUSSION litigation”). circumstances, Under these Spoliation A. we find that the district court did not abuse discretion, review the district spolia court’s de argument cision tion is sanction UMR for merit.2 spoliation without of evidence for an abuse of discretion. B. Retaliation
Menz Am., v. New Inc., Holland N. (8th Cir.2006). F.3d A spolia evidence, is no there di tion requires sanction a finding a par- circumstantial,3 rect or “showing specific a In his Second Complaint, Amended Bakhti- properly court dismissed ari included claim for Spoliation summary judgment. Intentional claim on light of Evidence. analysis of our concurring opinion The objects to the use of issue, spoliation sanctions we conclude the word conjunction "circumstantial” Moines, 387 Des City VII, v. any alleged link Griffith between” Cir.2004), burden-shift- F.3d by Title
retaliatory practices arising invidi- from liabilities and individual in the discussion "direct” the word disputes. mixed-motive retaliation, re It is ous discrimination vel non. discriminatory by the lost have bеen appears to prec what Supreme Court But suggested that spectfully are the case in this two-judge In this language used. concurrence requires edent evidentiary basic, purely longstanding, employed in are several regard, words both necessarily in Desert context, in the recalled specifically evidentiary rules notеd Judge Lo by Chief discussed sense "causal” Palace. Moines, City Thomas, writing Des a unanimous ken Justice Griffith Cir.2004), case the which we should "that states Desert Palace Court taken to have seems evidence” rul[e] "direct term depart from 'Conventional meaning, possibly one broader [all] new and appl[ies] on a generally litigation [that] сivil See, Morgan e.g., Waterhouse, circuit. to this unique [Price VII cases.' Inc., Sons, & Edwards requires A.G. rule That 1775]. "direct evi- term The preponderance 'by case prove his evidence, if used, which dence,” simply as [id.], evidence,' circum- using or ‘direct fact in aof believed, existence proves the evidence,' Bd. Service Postal U.S. stantiаl presumption. inference without issue Aikens, U.S. Governors *5 Inc., Sys., Energy Martin v. Rowan Lockheed (1983).” 1478, 539 U.S. 403 75 L.Ed.2d Cir.2004); (6th 544, Black’s 548 360 (some in 99, alterations S.Ct. 2148 123 at ed.2004). (8th The term Dictionary 596 Law further discusses Thomas original). Justice hand, evidence,” on other “circumstantial in evidence sufficiency of circumstantial circum- of facts a chain "proof of is noting that litigation, rights civil "Circum- fact, aof indicating the existence stances” sufficient, but only is not evidence stantial 762, (7th 767 Curry, 187 v. certain, per- satisfying and may be also more "[ejvidence omitted), or Cir.1999) (quotation U.S. at evidence.” direct than suasive personal on and not on based inference 100, S.Ct Law Dic Black’s knowledge observation.” or to advance aрpears concurrence The ed.2004). tionary 595 summary aof motion face idea that Hopkins, 490 U.S. v. Price Waterhouse VII not single-motive Title judgment, (1989), 1775, 228, L.Ed.2d 109 S.Ct. supported by "direct evidence” supported case as differentiated a mixed-motive tending to show by evidence” "circumstantial Douglas, McDonnell case single-motive discriminatory рrohibited specific to link 743, O’Con Justice Griffith, 387 F.3d see directly trial'— to proceed may not practices, concurrence, stated: nor, controlling in her is proffered evidence if the to dismissal shifting the burden justify order "[I]n first, must of law—but as a matter insufficient discriminatory ani [of causation the issue instance, the McDon- relegated every be defеndant, plaintiff ... must mus] presumption dis- three-part nell illegitimate an by evidence direct show Palace, After Desert paradigm. crimination the deci factor in a substantial criterion was concept. In Des- simply an untenable Waterhouse, atU.S. Price sion.” put Palace, emphatically Thomas Justice ert added). Congress disa (emphasis S.Ct. 1775 evidence theory that circumstantial rest the with some analysis or at least greed with this rights civil single-issue in a may only serve interpretations court numerous lower discrim- "presumption of establish case to legisla Accordingly, the articulation. of her the McDonnell upon which ination” VII, revising reorder amended tors rely. circum- analysis While procedure and damage-find liability determinations ing indeed, used for be may, stantial a mixed-motive at least in ing procedures, if neces- purpose, presumption-creating 1991, 42 U.S.C. Rights Act of case. Civil manner same in the may be used sary, also it Supreme 2000e-2(m). Subsequently, § an unbro- if it establishes Costa, as direct Palace, Court, 539 U.S. Inc. Desert leаding unlawful dis- proof (2003), ken chain 156 L.Ed.2d 123 S.Ct. Accordingly, use crimination. relation amendments analyzed Act's comports or circumstantial” “direct Waterhouse, words by realigning ship to Price binding precedent. proof and institutional opinion burdens ing analysis set forth in Doug in a discriminatory manner during a stu- Green, Corp. 792, 802-03, las dent conduct investigation. All of these (1973) 93 S.Ct. 36 L.Ed.2d aр pertain activities to Bakhtiari’s status as a plies. analysis, Under this the employee student, however, and not as a TA em- must first prima establish a facie case of ployed by UMR. (1) showing following: he Pursuing a grade appeal, even to the engaged in statutorily protected activity; Department of Education, does consti (2) the employer took an adverse action protected tute action within the context of (3) him; a connection between at UMR. In his the two occurrences. Green Franklin deposition, Bakhtiari admitted that his Bank, Nat’l 459 F.3d Cir. grade appeal had “nothing” to do with his 2006). activity” “Protected in this context position TA, as a only impacted the includеs opposition to employment prac course that he took graduate as a student.
tices VII; however, under Title See Artis v. Francis N. Howell Band a plaintiff employee need not establish that Ass’n, Inc., Booster 1178, 1183-84 161 F.3d the conduct he opposed was prohib in fact (8th Cir.1998) (holding plaintiffs that a VII; ited under Title rather he need only internal сomplaints to school officials about demonstrate that faith, he had a “good the treatment of students is a protect reasonable belief that the underlying chal ed activity within the scope of Title VII lenged conduct violated [Title VII].” Buett retaliation provisions). only Not is this Co., ner v. Arch Coal Sales conduct protectеd activity, could not possibly good have a faith belief If succeeds estab it protected when he admitted *6 lishing prima a facie presumption a that the grade appeal only impacted the results, of retaliation and the burden of course he took as a student. production shifts to employer, who must rebut Nor presumption do the complaints with evidence to the in of a legitimate, ternational nonretaliatory reason affairs for office about his student Green, the challenged action. immigration 459 F.3d at status complaint his 914. If the employer burden, meets that about the employee in the student affairs employee may prevail by showing that оffice comprise protected activity. Bakhti- employer’s reason was pretext for participation ari’s in these activities did not retaliation. Id. amount to opposition employ practices. (“We ment Id. at 1183 must Bakhtiari cannot clear the first first determine [plaintiff] whether engaged McDonnell Douglas hurdle becаuse he did in a protected i.e., activity, whether he engage any “protected” actions as opposed an unlawful employment prac employee an of UMR within the meaning tice.”). Perhaps legitimate were com of a federal employment discrimination plaints unsavory about by actions UMR case. allegеs Bakhtiari that protected his Nonetheless, officials. that possibility activity consisted of: his threat that he does not transform these complaints pursue would into grade his with appeal complaints about unlawful employment Department Education; practices. complaining Complaining entity’s to UMR’s about an international affairs office about way “actions outside the ambit of an employ handled mat ters pertaining practice his ment immigration unprotected by Title VII.” status; and complaining Here, that a UMR stu Id. Bakhtiari made complaints about dent affairs employee spoke to him UMR as a university, not about UMR as
1138 III. CONCLUSION simply does Title VII employer. an City, Kan. Evаns this conduct. protect court. We affirm Dist., 100-02 Mo. Sch. judgment Cir.1995) (reversing whom Judge, with SHEPHERD, Circuit VII retaliation Title teacher’s plaintiff MURPHY, Judge, joins, Circuit stemmed alleged retaliation where claims writing separately part concurring employer opposition teacher’s from in part. and not plan desegregation school’s decision Court’s I concur school). teacher’s dis- respectfully I separately because write did Bakhtiari we find Part II.B the statement agree with activity required as protected engage applies framework Douglas Bakhtiari’s not consider VII, we need Title “[bjecause claim retaliation Neb. Hunt pretext. regarding evidence evi- or circumstantial no direct there is Dist., Pub. Power (em- Ante at of retaliation. dence” the dis- we affirm Accordingly, added). produces phasis When judgment summary grant court’s trict or retalia discrimination direct evidence claim. VII on Bakhtiari’s burden-shift tion, McDonnell employed. Swier not be analysis need ing Remaining Claims C. 506, 511, A., U.S. N. v. Sorema kiewicz defen each sued (2002); Trans L.Ed.2d 122 S.Ct. His оnly. capacities in their official dants Thurston, Airlines, U.S. Inc. v. World indi in their parties these to name failure L.Ed.2d 111, 121, 105 S.Ct. remaining invalidates capacities vidual are cases (1985). Circumstantial under sections relief in- this circuit different, the law of claims, because law the state “[bjecause present- [Bakhtiari] structs waived have not state defendants thеse retaliation, we ed no direct Amendment Eleventh Hafer the McDonnell analyze his claim 21, 25, 112 Melo, analysis.” Gil- burden-shifting (1991) suits (holding that L.Ed.2d 301 Coll., 495 *7 Cmty. Area v. Des Moines bert ca their official against state officials Cir.2007) (emphasis state). are suits pacities City Des added); Carrington see these defen that because claims Cir.2007) Moines, 481 F.3d purchased “malice” acted dants evidence, the (“In direct the absence of im insurance, waived their liability McDonnell burden-shifting framework ar insurance Bakhtiari bases munity. claims.”) governs ... retaliation Douglas grant statutory the Missouri upon guments Sch. added); Indep. Stewart (emphasis Revised in Missouri immunity found 1042-43 No. Dist. not Eleventh seq., et § § 537.600 Statutes Cir.2007) (“Without direct de As the Amendment motive, anаlyze retaliation we retaliatory assert out, they did not point fendants ADA, VII, (whether under statute, Missouri immunity pursuant burden-shifting ADEA), Eleventh have asserted instead ....”) McDonnell framework Bakhti- immunity. Nor are Amendment added). a cir- this is (emphasis Accord persuasive. arguments malice ari’s agree I merit, cumstantial are without arguments ingly, these analy- burden-shifting dismissal court’s affirm the and we claim governs sis claims. of these that, framework, under this his claim fails. BRENNEMAN, Appellant,
Christine M. AMERICA,
FAMOUS DAVE’S OF
INC., Ryburn, and Dave
Appellee.
Equal Employment Opportunity
Commission, Amicus on Appellant.
Behalf of
No. 06-1851. States Court of Appeals,
Eighth Circuit.
Submitted: Sept.
Filed: Nov.