Lead Opinion
Carla Rodgers (“Rodgers”) appeals the decision of the district court
I. BACKGROUND
Rodgers, an African-American woman, was employed at the Picture Hills Branch
In November 2002, a suspicious-activity report generated by U.S. Bank’s Loss Prevention Group triggered an investigation into Rodgers’s account activity. Suspicious-activity reports identify transactions where the last name of the customer matches the last name of the employee performing the transaction. The reports are then reviewed and analyzed by loss-prevention analysts in the Employee Fraud Detection Group.
Rodgers’s suspicious-activity report showed that she had processed five transactions on one of her personal bank accounts involving credits of more than $35,000. Many of the credits appeared to come from CD/IRA or Loan in Process accounts. Rodgers did not have any of these accounts and, as a drive-through teller, never processed transactions on these types of accounts. A subsequent investigation revealed four additional suspicious transactions, including a credit to her account in the amount of $620,003.14. Because there was no paper support for these transactions, they washed out of the sys-tern at the end of each day, and Rodgers never tried to remove money from her account while credits were posted there.
A loss-prevention analyst contacted Beth Money, East Region District Manager, and Jan Scaletta, Human Resources Manager, and asked that they follow up on the report. Money and Scaletta passed along the information to Pathe Price, corporate security investigator for U.S. Bank. Price, along with Vickie Gabbert, District Operations Manager, conducted the investigation.
Price and Gabbert interviewed Rodgers as part of their investigation. Rodgers explained that she had used her account number to get out of a multi-transaction when she entered the function accidentally and continued to enter data. Although there are other ways to get out of the multi-transaction function, Rodgers used her account number to “zero out” the transaction. Rodgers further explained that she did not believe there was anything wrong with this procedure because she had been taught the “trick” by a senior teller, Kathy Nichols. Although she offered to show them the mistakes on the keyboard, neither investigator had her do so.
Price and Gabbert did not find Rodgers’s explanation credible for several reasons. First, the multi-transaction function could not be entered in the manner Rodgers described. Rodgers said that she had entered the multi-transaction function accidentally by hitting the enter key twice, but the function can only be entered by hitting another particular key on the keyboard. The investigators also had difficulty locating a corresponding transaction which Rodgers would have zeroed out with the transactions she processed on her account.
Price and Gabbert reported their findings and opinions to Jennifer Crim, the branch manager. Crim discussed the findings with her manager, Money. Based on the information obtained during the investigation, Money recommended that Rodgers be terminated. Crim agreed with Money’s recommendation because she, like Price and Gabbert, did not find Rodgers’s explanation to be credible. As a result, Crim terminated Rodgers’s employment because she believed the risk associated with the suspicious transactions was too great to allow Rodgers to continue her employment.
The investigators did not interview Nichols because she was on vacation during U.S. Bank’s investigation of Rodgers. However, as a result of Rodgers’s explanation that she had learned from Nichols that she could use her account number to “zero out” a transaction, U.S. Bank conducted a follow-up investigation of Nichols. Nichols had been a teller at U.S. Bank and its predecessors for more than seventeen years. Shortly before the investigation of Rodgers, Nichols had been placed on written “final notice” for violating a U.S. Bank dual-control security policy which prohibits one person from having both the key and the combination to a vault.
The Employee Fraud Detection Group investigated Nichols’s account activity to determine whether she had used her own account number for any transactions. Investigators found one such transaction. However, in contrast to Rodgers’s account activity, they were able to determine how Nichols had gotten to the point where she found it necessary to use her account number and the specific transaction she was attempting to reverse. Additionally, Nichols immediately reversed the transaction on her own account rather than allowing it to wash out at the end of the day. The branch manager found Nichols’s explanation to be credible and did not discipline her.
Rodgers filed a complaint against U.S. Bank alleging that her termination constituted racial discrimination in violation of 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, and the Missouri Human Rights Act. Specifically, she alleged that she suffered disparate treatment based on race when she was terminated for violating the same U.S. Bank policy as Nichols, a white employee who was not disciplined for violating the policy. U.S.
II. DISCUSSION
A. Introduction
We review the district court’s grant of summary judgment to U.S. Bank de novo. Pope v. ESA Services, Inc.,
In this ease, we employ the familiar McDonnell Douglas burden-shifting framework. Turner v. Honeywell Fed. Mfg. & Techs., LLC,
B. Prima Facie Case of Discrimination
In order to establish a prima facie case of discrimination on the part of U.S. Bank, Rodgers must show that: (1) she is a member of a protected group; (2) she was qualified for her position; (3) she was discharged; and (4) the discharge occurred under circumstances giving rise to an inference of discrimination. See Davenport v. Riverview Gardens Sch. Dist.,
The district court held that Rodgers failed to prove the fourth element of her prima facie case-that she and Nichols were similarly situated. The district court applied a standard articulated in Gilmore v. AT & T, requiring that Rodgers and Nichols be “similarly situated in all respects.”
Applying this standard, the district court held that while Rodgers and Nichols violated the same bank policy, the degree and frequency of Rodgers’s violations differed significantly from that of Nichols’s single violation. The district court compared Rodgers’s nine transactions involving erroneous credits in excess of $650,000 to Nichols’s one erroneous transaction involving $1,200. The district court agreed with U.S. Bank that the circumstances surrounding Rodgers’s transactions were suspicious. Accordingly, the district court held that “[i]t therefore cannot be said that Rodgers and Nichols ‘engaged in the same conduct without any mitigating or distinguishing circumstances.’ ” Rodgers v. U.S. Bank, N.A., No. 03-388-CV-W-DW, slip op. at 6 (W.D. Mo. June 16, 2004) (quoting Gilmore,
There appear to be conflicting lines of cases in our Circuit regarding the standard for determining whether employees are similarly situated at the prima facie stage of the McDonnell Douglas burden-shifting framework. One line sets a “low threshold” for employees to be considered similarly situated, requiring only that the employees “are involved in or accused of the same or similar conduct and are disciplined in different ways.” See Wheeler,
At the prima facie stage of the McDonnell Douglas burden-shifting framework, we choose to follow the low-threshold standard for determining whether employees are similarly situated. We believe this more accurately reflects Supreme Court precedent. The Supreme Court has advised: “The burden of establishing a prima facie case of disparate treatment is not onerous.” Texas Dep’t of Cmty. Affairs v. Burdine,
Under the low-threshold standard, Rodgers must show that she and Nichols were “involved in or accused of the same or similar conduct and [were] disciplined in different ways.” Wheeler,
The burden of production now shifts to U.S. Bank to show that it had a legitimate, nondiscriminatory reason for terminating Rodgers. U.S. Bank’s proffered reason is that Rodgers violated the bank’s policy against employees processing transactions on their own accounts. “The burden to articulate a nondiscriminatory justification is not onerous, and the explanation need not be demonstrated by a preponderance of the evidence.” Floyd v. State of Missouri Dept. of Soc. Servs., Div. of Family Servs.,
C. Pretext
Rodgers attempts to prove pretext with evidence of the following: (1) disparate treatment of her and similarly situated white employees; (2) an inadequate investigation into her account activity; and (3) a substantial change in U.S. Bank’s legitimate non-diseriminatory reason for her termination. We affirm the district court’s grant of summary judgment to U.S. Bank because we conclude that Rodgers failed to raise a triable question of material fact as to whether U.S. Bank’s legitimate nondiscriminatory reason for her termination was a pretext for discrimination.
1. Disparate treatment
Rodgers attempts to prove disparate treatment by demonstrating that she was treated less favorably than similarly situated employees outside of her protected group. See E.E.O.C. v. Kohler Co.,
Rodgers has failed to show that she was similarly situated to any of these white employees. At the pretext stage of the McDonnell Douglas burden-shifting framework, the test for determining whether employees are similarly situated to a plaintiff is a rigorous one. See Wheeler,
Although Rodgers and Nichols violated the same bank policy, the frequency and seriousness of Rodgers’s violations
When Nichols violated U.S. Bank’s policy against employees processing transactions on their own accounts, she also was on final notice for violating the bank’s dual-control vault security policy. Rodgers argues that this should be considered in the similarly-situated analysis in the same way a plaintiffs employment history is considered. See, e.g., Forrest v. Kraft Foods, Inc.,
Rodgers also argues that only white employees benefitted from U.S. Bank’s progressive discipline policy. She points to the fact that rather than being terminated, Nichols and two other white employees at her branch were put on final notice for violating the bank’s dual-control vault security policy. She also notes that Crim, her branch manager who is white, was demoted and given written warnings for poor performance and behavior issues rather than being terminated. Rodgers has failed to show how she is similarly situated to any of these white employees. See Lanear,
2. Inadequate Investigation
Next, Rodgers attempts to prove that U.S. Bank’s proffered justification for terminating her is a pretext for discrimina
This essentially boils down to an argument that the decision to terminate Rodgers was based on erroneous conclusions. The issue before the Court, however, is not whether U.S. Bank’s suspicions were correct; instead, the issue is whether U.S. Bank conducted a thorough investigation and whether it made credibility determinations reasonably and in good faith. See Pope,
3. Change in Proffered Reason
Finally, Rodgers attempts to prove pretext by arguing that U.S. Bank changed its reason for terminating her. She notes that in its MCHR/EEOC response, U.S. Bank asserted that Rodgers was terminated for violating bank policy, but later, in litigation, the bank brought up the frequency of her violations and the suspicious circumstances surrounding her violations. While it is true that “[substantial changes over time in the employer’s proffered reason for its employment decision support a finding of pretext,” Kobrin v. Univ. of Minn.,
Accordingly, Rodgers has failed to present any material evidence calling into question U.S. Bank’s proffered legitimate, nondiscriminatory reason for terminating her employment.
III. CONCLUSION
For the foregoing reasons, we conclude that Rodgers established a prima facie case of racial discrimination. However, because we conclude that Rodgers failed to raise a triable question of material fact as to whether U.S. Bank’s legitimate nondiscriminatory reason for her termination was a pretext for discrimination, we affirm the district court.
Notes
. The Honorable Dean Whipple, United States District Judge for the Western District of Missouri.
. The progressive-discipline policy provides for progressive discipline “when appropriate.” It also provides that "[i]n some cases, U.S. Bancorp may determine immediate termination is warranted.”
. Rodgers asserts that the most likely reason for checking her balance the first time that day was to see if her paycheck had been deposited, and the reason for the other times she checked was probably to joke with the other tellers about her large account balance because of the back-out transactions.
. Nichols was placed on final notice for a period of ninety days. The notice indicated that during the 90-day period, Nichols was expected to meet the following conditions: (1) no further violations of teller and security procedures; and (2) all teller duties and other areas of performance must meet standards. The notice stated that "[flailure to meet these expectations at anytime within the 90-day period may result in further disciplinary action up to and including termination.”
. Gilmore relied on Clark v. Runyon. See Gilmore,
We respectfully disagree with the concurring opinion’s position that the definitions this Circuit has used for the term "similarly situated” at the prima facie stage-"involved in or accused of the same or similar conduct”
For example, die Court in Williams, using the "involved in or accused of the same or similar conduct” definition at the prima facie stage, concluded that the plaintiff, an African-American, established his prima facie case simply because he provided evidence that he and nine white employees violated the employer’s "five day letter” rule, yet he was treated differently because he was refused reinstatement. Williams,
In stark contrast, using the "similarly situated in all relevant respects” definition at the pretext stage, the Court in Williams concluded that the plaintiff failed to prove pretext because he:
presented no evidence regarding the prior work histories of the reinstated Caucasian employees as compared to himself ..., the respective excuses for violating the "five day letter” rule, the number of days they remained absent before returning to work, the nature or severity of their medical conditions, or the extent to which their medical conditions were corroborated by independent, medical documentation. Moreover, the evidence in this case indicates that [the plaintiff] may have falsified his medical records, a circumstance not shown by [the plaintiff] to exist in other cases of reinstatement of Caucasian persons.
Id. at 1309-10. As exemplified in Williams, the different results obtained at the prima facie stage and the pretext stage demonstrate that the "involved in or accused of the same or similar conduct” definition and the "similarly situated in all relevant respects” definition are not functionally equivalent.
. We note that we "may affirm a district court's order, including an order granting summary judgment, on any basis supported by the record, even if that ground was not considered by the district court.” Saulsberry v. St. Mary’s Univ. of Minn.,
Concurrence Opinion
concurring in the judgment.
I concur in the judgment of the court. It seems unnecessary, in a case like this
The court, however, addresses what it describes an apparent conflict in our cases concerning the standard for determining the existence of a prima facie case in a case of alleged unlawful disparate treatment. I respectfully disagree with its conclusion on this point. The court’s analysis concerns the definition of “similarly situated” employees who are offered for comparison at the prima facie stage of the McDonnell Douglas burden-shifting analysis. The majority labels one definition of “similarly situated” a “low-threshold standard,” while the district court’s definition is said to be “rigorous,” and therefore incorrect. Ante, at 851. In my judgment, the divergence in definitions is more apparent than real, but to the extent there is a material difference, the standard applied by the district court is more deeply rooted in our precedents, more consistent with the law of other circuits, and more consonant with the legal presumption that accompanies the establishment of a prima facie case. Therefore, I would reaffirm our use of the district court’s standard— whether the plaintiff is “similarly situated in all relevant respects” with the employees offered for comparison — and uphold the district court’s conclusion that Rodgers did not provide sufficient evidence to raise an inference that her termination was more likely than not the result of discrimination based on race.
First, a prima facie standard that inquires whether employees are “similarly situated in all relevant respects” is more deeply rooted in our precedents. This standard was employed as early as 1992 in Jones v. Frank,
The court seems to trace the view that we should employ a different, “low-threshold” definition of “similarly situated” in assessing a plaintiffs prima facie case to the decision in Williams v. Ford Motor Co.,
I therefore respectfully disagree with the reading of Williams advanced in our recent opinion in Wheeler v. Aventis Pharmaceuticals. Wheeler interpreted the Williams definition of similarly situated, which was supported by the citation to Boner, and which merely paraphrased a passage from Boner by changing the words “same offense” to “same or similar conduct,” as establishing a “low threshold.”
Second, a prima facie standard of “similarly situated in all relevant respects” is used widely among our sister circuit courts of appeals. A majority of the regional circuits has applied this familiar standard or its equivalent at the prima facie stage of litigation under Title VII. See Cooper v. Southern Co.,
Third, the standard of “similarly situated in all relevant respects” also furthers the purposes of the prima facie case in the burden-shifting model of McDonnell Douglas. While the burden of establishing a prima facie case is not “onerous,” Texas Dep’t of Cmty. Affairs v. Burdine,
Under that framework, it makes good sense to consider whether an employee who seeks to make a prima facie case of disparate treatment by comparisons with another employee of a different race has demonstrated that the comparators are similarly situated in all relevant respects. For if they are not — that is, if the employees offered for comparison are dissimilar in respects that are relevant to the disputed employment action — then it is likely that the relevant dissimilarities explain the disparate treatment. In that case, the evidence has not “eliminate[d] the most common nondiscriminatory’ reasons” for the employer’s action, and it does not justify the legal presumption that the employer’s acts “are more likely than not based on impermissible factors.” Burdine,
This is not to say that employees offered for comparison must be similarly situated in all respects. If the evidence supports an inference that a particular dissimilarity is not relevant to the disputed act of the employer, then the presence of that dissimilarity will not preclude the employee from establishing a prima facie case. See Ercegovich,
For essentially the reasons discussed by the court in Part II.C.l of its opinion, I agree with the district court that Rodgers did not establish a prima facie case of
. Although Wheeler placed the term "rigorous” in quotation marks and followed it with a citation to Williams,
. Williams noted that the phrase "similarly situated" appeared in both the opinion's discussion of a prima facie case and in a discussion whether the employer's explanation for adverse action was a pretext for discrimination, and then explained that "the meaning of 'similarly situated' varies according to the context in which it is used.”
. Of course, a discharged employee need not rely on comparisons with similarly situated employees to prove unlawful discrimination. For example, to make a prima facie case under the McDonnell Douglas framework, the employee may produce evidence that her position remained open after the discharge and ultimately was filled by a person of a different race. See Hicks,