*1 there- I would discretion. of an abuse was court. the district affirm
fore dissenting. Judge,
McMILLIAN, Circuit dissenting opinion Heaney’s Judge join
I I be- because separately write also made statement first, that J.M.’s
lieve, protected home was his privacy not true statement That
speech.
threat. I importance, equal addition, legiti- had the school whether
question statement, authority over such
mate home, his privacy
made using or hours during school
school from was stolen equipment,
school friends, at the of his by one
his home over another, then turned
request of the state- anything, If officials. school matter, police arguably
ment attor- note, prosecuting local
which, I any charges. to issue
ney refused MOHR, Appellant,
Cindy INC., Appellee.
DUSTROL, 01-3926.
No. Appeals, Court States
United
Eighth Circuit. 10, 2002. June
Submitted: 30, 2002. Sept.
Filed: *2 occasionally reproached
though Mohr too driving performance e.g., about — more of the her share doing and not fast received work—she sign-holding tedious *3 is and there basis regular a raises on con- not she was that suggest nothing to employee. sidered, a valuable general, of the the start after point some At as- hiring all and season, thus after and made, a new had been signment decisions Sanchez, assigned foreman, Criz Mohr, According heating crew. the derogatory comments made Sanchez few the about 1998 season throughout and said often on the crew workers white all-Hispanic crew. wanted he she that deposition her Mohr testified for the back to be called expected Dus- from hadn’t heard she When season. spoke she called and early spring, trol Mohr, Lincoln, San- Shiffermiller, According to argued, Sanchez. with JoyMs. crew be on his not NE, appellant. told her she would for chez have going to was not he year because Lincoln, argued, Pigsley, L. Jerry Mr. Mohr crew. neverthe- on his any females NE, appellee. for on application a formal submitted less MELLOY, BEAM, RILEY, and heating Before 19, 1999, placed and March Judges. Circuit assignment. preferred as her crew deci- MELLOY, Judge. assignment and hiring Circuit Dustrol’s Heald officially made Marc were sions court’s district appeals Mohr Cindy affidavits, their Per Baehr. Harlan and her summary judgment in of adverse did that Sanchez aware they were em- former her against Title VII action heating crew assigned to the Mohr want and part Dustrol, affirm Inc. We ployer, San- They referenced the 1999 season. part. reverse Mohr dur- with problems reported chez’s specifically ing the I. season— menial work to do more refused Mohr compa- maintenance a paving Dustrol (because, removing signs and placing Lincoln, Nebraska. Mohr located in ny her aha, want “break she didn’t inter on flagger aas Dustrol worked (fake) wanted fingernails”) long 1998. in 1997 and heating crew seasonal affida- truck. Heald’s flagger to drive controlling involve flagger a duties The re- “had Sanchez states explicitly vit by set- zones construction traffic in road put on not be [Mohr] quested sig- signs, traffic taking down ting up perfor- work again because crew heater slow, driving stop cars to naling her.” he had with problems Al- mance area. the work through vehicle lead initially no appropriate only pleadings, told there was if “the deposi tions, work for her that season. answers to interrogatories, and ad available complaint file, response, she filed missions together on with the affida vits, Equal Opportunity Commission if show any, genuine Nebraska that there no (NEOC) alleging Dustrol’s issue as to material fact and that the race, origin national moving party rehire her constituted is entitled judgment aas 56(c). gender discrimination. Around this matter law.” Fed.R.Civ.P. time, same called Mohr and of- “When Dustrol the evidence support would con milling conclusions, flagging flicting fered work summary judgment crew, job Mohr considered demotion should be denied.” Kells v. Sinclair *4 F.3d, Truck, Inc., it 827, because offered less favorable hours and Buick-GMC 210 (8th Cir.2000) (citation omitted). opportunities fewer for advancement 830 operation. posi- machine took Mohr the A. Failure Hire 26, work April
tion started on 1999. and 18th, later, May quit. On she month One Mohr’s failure hire claim alleges filed complaint Mohr another with the that Dustrol’s decision not to rehire her NEOC, alleging that Dustrol retaliated for the heating 1999 crew of was the result against filing. her for her earlier In this sex, race and national origin discrimina charge, second marked “retalia- Mohr tion. The district court found that Mohr tion” the as basis discrimination and applied too late to be considered for race, left the and boxes sex national crew, and, position heating on there origin unchecked. fore, prima she could not establish a facie case of discrimination. 2000, August 24,
On the NEOC issued a right filings. to sue letter for each The framework for evaluating subsequent alleged federal suit dis- Title VII depends discrimination claim on hire, criminatory failure to train presented the type of evidence in support and discharge. constructive The district of the claim. the plaintiff Where relies summary judgment court granted to Dus- evidence, on primarily circumstantial all argues trol on On Mohr appeal, claims. courts apply tripartite analysis as set genuine issues of remain material fact Douglas forth McDonnell v. Corp. as to whether she was discriminated Green, 792, 1817, 411 U.S. 93 S.Ct. 36 against failing to rehired be for the (1973). test, L.Ed.2d 668 Under that heating crew and she treated whether prima must first plaintiff establish a facie differently respect training. She by case of showing argues also district court erred she was a member of a protected class resolving the failure train claim on and an adverse employment suffered ac grounds by not raised Dustrol in sum- its tion that others outside her class did not mary judgment motion. v. suffer. See Reeves Sanderson Plumb Inc., 142-43, ing Prods., 133, 530 U.S.
II.
(2000)
2097,
120 S.Ct.
640
254,
1089,
although
248,
preclude
damages
67
award of
101 S.Ct.
U.S.
450
relief,
(1981)).
declaratory
injunctive
judgment,
If the defendant
207
L.Ed.2d
burden,
attorney’s
possible.
fees would still be
plain-
production
meets this
(B);
2000e-5(g)(2)(A)
§
42
&
U.S.C.
preponderance of See
by the
prove
must
tiff
847-48;
at
Gagnon,
Browning
nondiscriminatory
evidence
Casino-Missouri,
Riverboat
President
the defendant are
reasons offered
(8th Cir.1998).
F.3d
true,
pretext
for dis-
instead were
143, 120
at
S.Ct. 2097
Id.
crimination.
case,
alleged
that Sanchez
this
Mohr
“
(citations
Significantly,
‘[t]he
comments
repeated
derogatory
made
the trier of
persuading
ultimate burden
throughout
the 1998
non-Hispanies
about
intentionally dis-
the defendant
fact
season,
directly
that she
told
against
remains
criminated
not be
his crew 1999 because
would
”
plaintiff.’
(quot-
Id.
with the
all times
an all-male crew.
going
he
to have
Burdine,
U.S.
S.Ct.
ing
The district court did not treat these com-
1089).
ments
direct evidence of discrimination
it
“no
to indicate
because
found
evidence
situations, however, a
*5
In some
‘closely
involved in em-
[Sanchez]
produce direct evidence
plaintiff can
”
Dustrol,
Mohr v.
ployment decisions.’
motivating
was a
factor
illegal
an
criterion
(D.Neb.
4:00CV3280,
Inc.,
op.
7
slip
No.
See
employment
in
decision.
disputed
2001)
6,
(internal
Sept.
quotation
2000e-2(m) (“[A]n
§
unlawful
42 U.S.C.
Accordingly,
analyzed
the district court
practice
established when
employment
Douglas.
Mohr’s claim under McDonnell
party demonstrates that
complaining
char-
disagree
We
district court’s
sex,
race, color,
or
religion,
origin
national
acterization of the evidence and conclude
motivating
any employ
factor for
awas
alleged
that Sanchez’s
remarks could rea-
though
practice, even
other factors
ment
sonably
direct
dis-
be deemed
evidence of
practice.”).
In those
motivated
also
purposes.
crimination for Title VII
cases,
is relieved of the ulti
persuasion and the so-
“Direct evidence is that which dem
mate burden of
analysis
‘a
link
al
applied.
specific
“mixed motive”
onstrates
between the
called
discriminatory
v.
the chal
generally
Hop
leged
Price Waterhouse
animus and
See
228,
1775,
decision,
kins,
to
lenged [employment]
109 S.Ct.
104
sufficient
490 U.S.
(1989);
Gagnon
support
finding
v.
a
a reasonable fact
Sprint
L.Ed.2d 268
(8th
839,
Cir.),
an
Corp.,
illegitimate
F.3d
847-49
finder that
criterion actual
284
71
petition
filed,
ly
employer’s]
[the
cert.
U.S.L.W. 3162
motivated
decision’
(U.S.
(No. 02-273).
19, 2002)
employment
Under
action.” De
Aug.
take the adverse
Inc.,
Airlines,
analysis,
v.
132
plain
motive
“once the
neen Northwest
F.3d
the mixed
Cir.1998)
(8th
that,
431,
likely
persuades
(quoting
tiff
factfinder
more
436
Thomas
64,
not,
motivating
Wynne,
Nat’l Bank
111
than
‘a
First
F.3d
(8th Cir.1997)).
decision,’
part
employment
every prejudiced
the bur
an
66
Not
employer
prove
supports
to the
remark made at work
infer
den shifts
neverthe
of discrimination.
Price
employment
decision would
ence
Water
house,
277,
legitimate,
made for
nondis
490
were the Dustrol employees officially re- hired in March because Sanchez did not sponsible for hiring and crew assignments. want her on the heating crew and there However, the direct evidence inquiry is not was no other work *6 Indeed, available. limited to those formally entrusted with Heald’s and Baehr’s statements leave little decisionmaking duties. If a reasonable room for any other conclusion than that factfinder could conclude that Sanchez was they deferred to in Sanchez making em- closely involved in the decision not to re- ployment decisions regarding Mohr. See hire crew, Mohr for the heating then his Gagnon, (“Courts 284 at F.3d 848 look alleged comments are relevant to the di- beyond the moment a decision was made rect evidence analysis. While Dustrol in order to determine whether statements states that Sanchez does not make hiring or comments made other managerial decisions, excerpts from both Heald’s and employees played a role in the ultimate Baehr’s affidavits attest to Sanchez’s input decisionmaking process.”). this, Given where Mohr was concerned: Dustrol cannot assert Heald’s and Baehr’s ¶ affidavit, Baehr 14: Criz Sanchez had lack of knowledge regarding Sanchez’s al- problems Cindy [Mohr] when she leged discriminatory dispositive- animus to on worked his crew. Criz was not inter- ly insulate itself from liability. See id. at having ested in her come back on his 848-49 (reversing summary judgment to crew in 1999. Criz wanted Cindy to set employer after finding direct evidence of up signs and she either just refused or discrimination, and “While concluding, [the
wanted to drive
pickup.
decision may
COO’s]
have ultimately been
¶
affidavit,
Heald
Cindy
5:
[Mohr]
came
free of
animus,
discriminatory
we can-
in
on March
1999 to
apply work
not sterilize a seemingly objective decision
for
1999
construction season. She when earlier discriminatory decisions lead
26,1999.
started work on April
She did to the
adverse
employment action.”);
not begin to work earlier
April
Yates,
than
low Cir.1994), employer cannot es- application as to formal “[a]n tion whether the for ] discrimination responsibility [ cape prerequisite placement process . reviewers facts which the ... when testimony deposition her case. Mohr’s by manager de- filtered rely have been expected suggests that she Dustrol con- the labor force of purge. [a termined her for as it had tact seasonal work done class]”); Kientzy McDonnell protected Gentry, prior years. (8th 1051, 1057 Corp., 990 F.2d Douglas (stating formally apply will Cir.1993) (discussing cases from other cir- fatal to not be deemed Thus, for pur- proposition). cuits for same job officially opening where was not adver- review, summary San- judgment poses employer plaintiffs aware of tised decisionmaking involvement chez’s interest). We need not determine whether alleged com- derogatory process and his showing point on this rises to the workplace capabilities ments about issúe, however; genuine level because non-Hispanics sufficiently es- women themselves, statements, Heald’s in and of link” the chal- “specific tablish the between summary judgment are insufficient alleged action lenged employment Dustrol made the prove would have same animus. employment regarding decisions ab- that Mohr is Having , concluded sent Sanchez’s involvement. analysis, to the mixed motive our entitled Heald’s statements do not mandate prov whether Dustrol has review turns to finding positions that all of the on the any illegal en absent consideration of heating prior crew were to Mohr’s filled criterion it would have taken same application and Dustrol has offered evi- no words, In other Dus- employment action.1 dence to that effect. Nor has Dustrol genuine that no issue re trol must show presented evidence a “first-come first- nondiscriminatory mains as to its reason Instead, policy. merely hired” there is heating failing to rehire Mohr assertion that “no flagger was hired applied crew she March 1999. when *7 applied Dustrol before Mohr af- is set out in Baehr’s who had position Dustrol’s seven, affidavit, more, paragraph in he ter Mohr.” this is language Absent prior “All of the flaggers states: hired to prove insufficient as a matter of law in completed applica 1999 had their' that was treated application with Mohr’s. prio¥ tion forms the date Mohr submit complete neutrality. And when viewed flagger ted her was hired application. No conjunction with Sanchez’s documented Mohr, by applied Dustrol who had abilities, there a before criticisms Mohr’s is (emphasis original). after Mohr.” reasonable inference that factors other timing decisionmaking than affected the Dustrol asks us read these statements short, process. as a taken whole its re- proof as conclusive decision's inferences, granting Mohr all solely timing, Mohr were on reasonable garding based First, completely objective criterion. we the record belies Dustrol’s assertion employment if again We note that even Dustrol is suc- same dis 1. decision absent making showing, it such is still crimination is relevant cessful determine relief, declaratory injunc- potentially may liable for whether the court award full in relief relief, admissions, attorneys cluding damages, fees and See tive costs. court ordered reinstatement, 2000e-5(g)(2). hiring, promotion § "Whether or not or other [the U.S.C. (cita by Gagnon, its employer] satisfies burden to show such relief.” 284 F.3d at preponderance it would have tions reached Mohr simply applied late for however, too consider- reveals that general this rule is heating ation on the crew. Accordingly, largely inapposite here. Each of the cases summary judgment on the failure to hire cited Mohr involves a reversal of sum- claim inappropriate. mary judgment Johnson v. where the district court Minn. Historical Soc’y, 931 F.2d made a determination on the merits of a (8th Gir.1991) (“All claim, the evidence must claim, element of a not raised or point one way and susceptible be of no addressed party. Thus, either in Walk- reasonable sustaining inferences posi- er employer moved for summary judg- tion of the non-moving party [before sum- ment on Walker’s ADA solely on the mary judgment appropriate].”). grounds that was not a “quali-
fied individual with a disability” under the
B. Failure to Train
Walker,
ADA.
Mohr’s failure to train claim alleg
employer’s
on a
favor
different element—
es that throughout
employment
her
with
the plaintiff could not show an ad-
Dustrol she was not given the same train
employment
verse
action.
Id. at 741-42.
ing opportunities
as male employees.
This was deemed reversible error since the
that,
Mohr asserts
despite
repeated
plaintiff “did not have sufficient notice that
requests, only male employees
taught
were
the third element was in issue.” Id. at
to operate
pavement
heaters and other
742. Similarly, in
Cross,
American Red
large
that,
machines. She also claims
un
we reversed the district court’s summary
like the
employees,
male
she was not al
judgment
disposition
three tortious in-
lowed time at work to study for her com
terference claims because the moving par-
mercial
license,
drivers
which would have
had
ty
not addressed
particular
those
facilitated advancement.
The district
claims
its summary judgment motion.
court
found
Mohr’s allegations could
Cross,
Am. Red
644 case, facts that, the in this er, 42 and conclude legal a issue. See is claim- Title a VII
of
determination
to the exhaustion
Douglas
2000e-5(e);
relevant
McDonnell
§
U.S.C.
and
(de
pleadings
forth
the
798,
fully
1817
set
93
were
S.Ct.
411 U.S.
Corp.,
ato
NEOC documents.
prerequisites
attendant
“jurisdictional
scribing
by-
including receipt
as
action”
federal
the
case, we summarized
a
recent
statutory notice
of Commission’s
plaintiff
plain-
determining
whether
standard
Douglas
sue);
v.
Ross
to
right
the
of
administrative
has
exhausted
properly
tiff
(8th
391,
Cir.
Neb.,
395
County,
to suit:
prior
remedies
“mandatory ex
2000)
Title VII’s
(noting
dis-
alleged
an
whether
determining
“In
must
whereby claims
requirement
haustion
of
scope
the
falls within
criminatory act
before
the NEOC
to
presented
be
first
claim, the administra-
Court”).
[discrimination]
in Federal
sue
can
plaintiff
liberal-
be construed
complaint must
Co.,
tive
Nat’l Ins.
v. American
also Nichols
the remedial
not to frustrate
Cir.1998) (charac
‘in order
ly
(8th
875, 886
F.3d
154
stat-
anti-discrimination
[the
of
purposes
Title VII
scope of
of
terizing determination
relief
may seek
plaintiff
issue).
the
Although
utes]’
chal
and
legal,
as a
claim
of
out
grows'
claim
VII
of a Title
scope
the
lenges to
the
reasonably related
summary judgment
the
or is like
arise
frequently
ad-
in the
allegations
the issue
of the
held
substance
have never
stage, we
F.3d
56.
through Rule
154
charge.” Nichols
only be addressed
ministrative
may
purpose
(citations
citation
and internal
undermine
would
so hold
at 886-87
To
pro
omitted).
sweep
remedies
“Accordingly,
administrative
Title VII’s
may
the Commission
complaint
“to provide
judicial
which
any subsequent
vision
attempt
investigate
EEOC
of the
opportunity
scope
as the
be
broad
controversy through
reasonably
be
a resolution
could
‘investigation
ag
permitting
before
charge of
conciliation
out of
grow
expected
a lawsuit.” Cobb
pursue
party
grieved
850
Stringer,
v.
Cobb
discrimination.’”
(8th
Cir.
F.2d
359
Cir.1988)
Stringer,
(citation
v.
(8th
356, 359
F.2d
omitted); see also
1988) (citations
Shan
scope
omitted).
outside
Allegations
Co.,
Motor
v. Ford
however,
non
circum-
charge,
the EEOC
“exhaustion
Cir.1996) (reiterating that
(8th
investigatory
EEOC’s
scribe
central
remedies
of administrative
are
role,
for that reason
conciliatory
(citations
statutory scheme”
Title VII’s
Rock
Little
allowed. Williams
Moreover,
lead to
omitted)).
it would
218, 223
Works,
F.3d
Water
Mun.
mandato
Title
VII’s
result
anomalous
Cir.1994) (citation
(8th
en
would be
requirement
ry exhaustion
Kells,
F.3d at 836.
private
aby
invoked
only where
forced
review,
viewing all
litigant.
novo
After de
Mohr,
favorable to
light most
facts
whether
recognize
We
court
district
with the
agree
we'
remedies
administrative
exhausted
has
not ad-
claim was
n to train
failure
VII
Title
particular
to a
regard
*9
Nichols, 154
ministratively exhausted.
fact-
relatively
times,
may, at
involve
review).
(stating standard
F.3d at
we recommend
analysis,
intensive
scope
the
outside
clearly
is
claim
Mohr’s
cases,
provide
district courts
that, in those
complaint
first administrative
to address
opportunity
plaintiffs with
rehire
only Dustrol’s
challenges
make
it. We
ruling on
the issue prior
train
failure
season. A
effect,
her for the
howev-
to that
requirement
no strict
type
not the
words,
treatment
that is like or
the substantive allegations in the
reasonably related to an administrative
second
charge
NEOC
should
read in
be
charge of discriminatory failure
hire. A
conjunction with the asserted bases of dis-
failure to hire is
act
a discrete
of discrimi
crimination in the first NEOC charge so
nation, particularly in this case where
that she has properly exhausted a claim
charge alleged
NEOC
that the dis
for discriminatory failure to train based on
criminatory
actions occurred
sex,
between
race and national origin.
rejected
We
2,
March 29 and April
2000. An investiga
a similar argument
in
Williams
Little
tion into
charge
such a
would not encom
Municipal
Works,
Rock
Water
vasiveness of racially the discriminatory Williams’ claims of race discrimination conduct). are separate and distinct from her claims of retaliation. Not only
Mohr’s second did charge, NEOC filed two Williams fail to later, check months the box race includes a failure to train discrimination, her 1990 EEOC allegation charge but only asserts retaliation as and supporting affidavit specifically the basis for disparate treatment. unambiguously alleged that There is Water nothing complaint Works against retaliated would advise her because Commission of other she had a charge filed with asserted bases EEOC for discrimination. To the January 1987. The 1990 contrary, charge EEOC complaint highly specific does not even hint of a claim of narrowly circumscribed, race emphasizing discrimination. This that the amounts more alleged discriminatory treatment than a mere technicality and prod- occurred is the April between 26 and May uct of an unconstrained reading was in retaliation for Mohr’s Williams’ charge. The filing prop- earlier the NEOC. The substan- erly are, addressed allegations EEOC adminis- tive for the part, most processes trative was that of completely retaliation. regarding sex, neutral race and national origin. Nothing suggests Id. Mohr believed discrimination on those agree We that, with the district court grounds, retaliation, rather than was driv- significant all respects, Mohr’s case is ing disparate treatment complained of analogous to Williams. Although Mohr’s
in the second charge. two NEOC filings time, were closer in
Mohr argues charges two second filing unambiguously directed the should be together construed purposes Commission to investigate retaliation of administrative exhaustion. In other charges only, and its specificity, following *10 the failure the reversal from dissent filing, the first heels of closely
so by Ms. Mohr. claim asserted hire and isolate distinguish further acted of the each within allegations substantive Shannon, See
complaints. agreeing and
(discussing Williams previous reference
mere charge retaliation subsequent
charge in exhaust, Title VII for enough not
“was claim”). the discrimination
purposes, Litem SCOTT, Ad Guardian Sylvia as took Mohr’s if even we We note Kayla Standmore, minors, Detrick for charges construed view broad Reyes Ronald & Hunter, Michaela that her conclude still would we jointly, Ad Amy, Guardian Rucker; Rene as exceeded claim to train failure VII Title Amy Rene minors Camdem for Litem gist The charge. NEOC her scope George Amy; Fran Laraine & Mariss that over claim is Title VII Ad Li MacPherson, as Guardian cis Dustrol with seasons three course George Mac minor, Gordon for tem opportu- training same was denied she MacPherson, Pherson; Jimenez Silvia NEOC Her employees. male nities minor Ad Litem as Guardian period only brief involved charges MacPherson; Romeo George Gordon make findings the Commission’s mi Litem for Ad Alva, as Guardian investigations covered its clear that Plaintiffs-Appel Alva, Jocelyne nor, Mohr to allow To period. limited this lees-Cross-Appellants, in this case train claim bring failure circumscribe improperly would conciliatory role investigatory and NEOC’s DIS UNIFIED SCHOOL PASADENA of the of notice Dustrol deprive Alstine; George George TRICT; Van Williams, 222-23. 21 F.3d at charge. See Jacobs; Bonnie Padilla; Jacqueline (“[T]here Shannon, at 685 also Fowler; Vera Armstrong; Lisa liberally reading between difference is a and official individual Vignes, their invent- specificity,’ and ‘lacks which Defendants-Appellants- capacities, simply nihilo, a claim ing, ex Cross-Appellees. (internal made.”) citation 00-55532, and 00-55789.
Nos. 00-55666 III. Appeals, Court of States United Ninth Circuit. herein, we discussed the reasons For of sum- court’s district reverse 17, 2001. and Submitted Oct. Argued rehire on Mohr’s mary judgment 4, 2002. Sept. Filed fail- of her the dismissal claim, affirm case is remanded The claim. to train ure consistent proceedings further opinion.
this dissenting. Judge,
BEAM, Circuit by the result reached with the agree
I respectfully I Accordingly, court.
district