EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant/Cross-Appellee,
Mohammed Shanif Hussein, Intervenor, Plaintiff-Appellant/Cross-Appellee,
v.
TRANS STATES AIRLINES, INC., Appellee/Cross-Appellant,
Airline Pilots Association Int., (AFL-CIO), Defendant.
No. 05-2009.
No. 05-2010.
No. 05-2046.
United States Court of Appeals, Eighth Circuit.
Submitted: March 16, 2006.
Filed: September 19, 2006.
Jerome J. Dobson, Jonathan C. Berns, Michelle D. Neumann, Weinhaus & Dobson, St. Louis, MO, Appellant/Cross-Appellee.
James N. Foster, Jr., William B. Jones, Christopher M. Sanders, McMahon & Berger, David John Arthur Hayes, III, Trans States Airlines, Inc., St. Louis, MO, for Appellee/Cross-Appellant.
Before SMITH, JOHN R. GIBSON, and COLLOTON, Circuit Judges.
COLLOTON, Circuit Judge.
The Equal Employment Opportunity Commission ("EEOC") brought this action alleging that Trans States Airlines terminated Mohammed Shanif Hussein in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e-2. Hussein subsequently intervened, asserting claims under Title VII and the Missouri Human Rights Act. Mo.Rev.Stat. § 213.010 et seq. Trans States moved for summary judgment on all claims, and moved for attorneys' fees. The district court* granted summary judgment for Trans States, but denied its motion for fees. We affirm the judgment of the district court.
I.
Hussein is a man of Indian descent who is a native of the island of Fiji, where he was raised as a Muslim. He moved to the United States in 1997. Trans States, which is based in St. Louis, Missouri, hired Hussein as a pilot on February 26, 2001. On September 13, 2001, when commercial air travel was suspended as a consequence of the terrorist attacks on September 11, Hussein returned a Trans States plane to the St. Louis airport. He then rented a room at a nearby Howard Johnson's hotel.
At some time between September 14 and September 17, 2001, Captain Daniel Reed, Trans States's vice president of flight operations, received what he said was an anonymous phone call regarding Hussein. According to Reed's testimony in this case, the caller reported that a pilot in a Trans States uniform had been in a bar at the Howard Johnson's hotel making comments about the attacks of September 11, and that a bartender had asked him to leave. Reed said that he asked how the caller knew the person was a Trans States pilot, and the caller replied that he had read the pilot's identification tag and then gave his last name as Hussein. Reed remembered the caller saying that a Trans World Airlines pilot had followed Hussein out of the bar, at which time Hussein took off some of his uniform pieces and went into another bar at the hotel.
Reed testified that he asked his flight managers about Hussein, and they confirmed that Trans States employed a pilot named Mohammed Hussein. Reed said he asked a manager on his staff to verify that Hussein was in St. Louis at the time of the reported incident. He recalled that within an hour, he received a report that Hussein should have been in the St. Louis area, and that he was a probationary employee. Reed stated that he then decided to dismiss Hussein and directed one of the flight managers to carry out the termination.
Michael Swoboda, then a flight manager at Trans States, informed Hussein of his termination on September 18. Swoboda testified that when Reed returned from taking the anonymous telephone call, he asked for information about Mohammed Hussein. Swoboda recalled telling Reed that Hussein was a first officer based in St. Louis, and that he was probably a probationary employee. Swoboda testified that Reed then directed Swoboda to terminate Hussein's employment. Another flight manager, Rodney Aman, overheard Reed speaking on the telephone when he received the anonymous call about Hussein. Paraphrasing the conversation, Aman remembered Reed saying, "It doesn't matter," and "It doesn't matter, he was in a bar in uniform," during the course of the call.
It was later revealed that the anonymous caller was a pilot employed by Trans World Airlines named Emmet Conrecode. Conrecode was staying at the Howard Johnson's hotel in St. Louis on September 13. He testified in this case that while he was in a bar at the hotel eating dinner, he observed a man walk into the bar wearing a pilot's uniform. According to Conrecode, the man drank a beer at the bar, and when a television showed a replay of an aircraft hitting one of the World Trade Center towers, the man raised his beer "as in a salute and took a swig." The man eventually left the bar, and another pilot told Conrecode that he told the man to "get out of the bar in uniform." Conrecode said the man later returned with epaulets removed from his uniform, and that during this second visit to the bar, the man announced that he was going to fly an airplane the next day. Conrecode testified that he later inquired about the man's identity at the front desk of the hotel, and the desk manager identified him as a Trans States pilot named "Hussein."
Conrecode testified that he could not sleep that night, and he decided to contact the Federal Bureau of Investigation early in the morning of September 14. He left a message, and the FBI interviewed Conrecode later that day. Conrecode stated that he also contacted the airport police when he realized that the man he observed in the bar could gain access to an aircraft if flight operations resumed in the morning. He described to the duty officer "the behavior of a pilot in uniform drinking in a bar and reporting that he was going to be flying the next day and that he was acting in a strange manner." Conrecode further testified that he called Trans States Airlines on September 14 and spoke with a manager who left a meeting to take the telephone call. Conrecode recalled that he told the Trans States manager that Hussein had been drinking in a bar in uniform, and that he "seemed to be intimidating passengers by that action." Conrecode "may have" mentioned what he perceived as Hussein's support for the September 11 terrorists. Conrecode said he was not sure whether he identified himself to the Trans States manager.
Conrecode's report to law enforcement prompted an investigation by the FBI. According to the reports of an FBI agent and airport police officer who interviewed Hussein on September 14, Hussein admitted that he was wearing an epauletted white shirt and blue pants while drinking alcoholic beverages and eating dinner in a bar at the Howard Johnson's hotel. The officer and agent, respectively, reported that Hussein acknowledged on September 14, 2001, that his attire in the bar did "identify him as a pilot" and was "indicative of a member of a flight crew." (Def.'s App. at 79, 145). Hussein testified in a deposition in 2004 that he was not wearing his uniform with epaulets on the shirt in the bar at Howard Johnson's, but he did not recall whether he had worn his uniform shirt and slacks in the bar. (Pls.' App. at 250). Hussein averred in a declaration that he never made any statement or gesture indicating that he approved of the terrorist attacks of September 11, and that he has always believed those acts were contemptible and horrific. Hussein testified that he was smiling while in the bar because he had learned earlier in the day that his wife was pregnant.
At some point after the FBI interviewed Conrecode, the FBI agent called Reed about Hussein. According to a report of Reed's interview in August 2002 with an interviewer from the EEOC, Reed said that he decided to terminate Hussein "since he had received this call" from the FBI and "since [Hussein] was already suspected of being in a drinking establishment." (Pls.' App. at 112). Reed testified at his deposition in 2004, however, that he received the call from the FBI agent after he made his decision to terminate Hussein.
On October 5, 2001, Hussein filed an initial questionnaire with the EEOC regarding his discharge, and filed a charge of discrimination in violation of Title VII with the EEOC on December 10. After an investigation, the EEOC determined that Trans States violated Title VII by terminating Hussein on account of his religion, race, or national origin. The parties entered conciliation discussions, but could not reach a settlement, and the EEOC filed this action, in which Hussein subsequently intervened as a plaintiff.
Trans States moved for summary judgment on all counts. In granting the motion, the district court found that Hussein had provided no "evidence that [Trans States] fabricated the telephone call" from Conrecode to Reed. The court also found that because of his probationary status, Hussein was not entitled to certain disciplinary procedures established by the collective bargaining agreement and employee handbook. The court further concluded that similarly-situated probationary pilots had been treated in the same way as Hussein, that Hussein provided no evidence that his religion, race, or national origin influenced Reed's termination decision, and that without more, the timing of Hussein's termination in relation to the September 11 terrorist attacks could not support a finding that Trans States's explanation for his termination was a pretext for discrimination.
Trans States also moved for attorneys' fees pursuant to 28 U.S.C. § 1927 and 42 U.S.C. § 2000e-5(k), arguing that plaintiffs frivolously and vexatiously proceeded with this action, and that the EEOC did not satisfy its duty to conciliate in good faith. The court found that although plaintiffs' claims were meritless, they were not "frivolous or groundless." The court also found that the EEOC conciliated in good faith. Accordingly, the court denied Trans States's motion for attorneys' fees.
II.
The EEOC and Hussein appeal the district court's grant of summary judgment in favor of Trans States on the plaintiffs' claims under Title VII and the Missouri Human Rights Act. Summary judgment is appropriate if, considering all reasonable inferences from the evidence in the light most favorable to the non-moving party, there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56(c); Hitt v. Harsco Corp.,
A plaintiff raising claims of employment discrimination may survive a motion for summary judgment either by proof of "direct evidence" of discrimination, or by creating the requisite inference of unlawful discrimination through the burden-shifting framework described in McDonnell Douglas Corp. v. Green,
Because the record was fully developed on motions for summary judgment, we may turn to the ultimate question of discrimination vel non. See Riser v. Target Corp.,
In support of their contention that the evidence shows unlawful discrimination based on race, religion, and national origin, the plaintiffs contend that Reed must have assumed that a pilot named "Mohammed Hussein" was Muslim and Arab. Hussein says "a fact finder would have to ignore common sense to conclude that Reed made no connection between the name Mohammed Hussein and being Muslim and Arab." (Hussein Br. at 28). Similarly, the EEOC says "[t]hat a person would not connect the name Mohammed Hussein with being Muslim and Arab defies belief." (EEOC Br. at 54).
It is undisputed, however, that Hussein is not Arab. He is of Indian descent. (EEOC Br. at 3). Plaintiffs' argument, therefore, is that it would "defy belief" and "ignore common sense" for a jury to conclude that Reed may accurately have declined to assume that a person with Hussein's name must be of Arabic descent. The contention that a jury necessarily would infer that Reed engaged in inaccurate stereotyping is not attractive. And assuming arguendo that a non-Arab might have an actionable claim under Title VII based on race or national origin if his "objective appearance to others" was as an Arab, cf. Bennun v. Rutgers State Univ.,
But assuming for the sake of argument that a reasonable jury could find that Reed inferred that Hussein was Muslim or Arab at the time of the employment decision, we turn to the plaintiffs' attack on the airline's legitimate non-discriminatory for the termination. Their principal contention is that Reed's explanation — that he dismissed Hussein based on an anonymous telephone call, without any investigation of the claims of misconduct — is inherently incredible. They argue that a jury reasonably could conclude that Hussein was terminated in a precipitous manner for the alleged infraction only because the incident occurred shortly after the September 11 attacks and Reed believed that Hussein — like the attackers — was Muslim. They seek to bolster this theory with contentions that Trans States varied from company policies and procedures calling for progressive discipline, and that other probationary employees received more lenient treatment under similar circumstances. They also rely on variations in Reed's explanation for the sequence of events leading to the termination.
We are not persuaded that these arguments based on circumstantial evidence are sufficient to support a finding of intentional discrimination. First, the disciplinary policies and procedures adopted by Trans States do not support an inference of discrimination. Plaintiffs point to Trans States's employee handbook, which states that a system of "progressive discipline" will be used when employees violate company procedures or rules. The handbook does not distinguish between probationary and non-probationary employees, so Plaintiffs contend that the failure to afford Hussein an opportunity for progressive discipline suggests that Reed was motivated by unlawful considerations. But the collective bargaining agreement between Trans States and the airline's pilots includes a subsection regarding "Discipline and Discharge," which specifically provides that "[n]othing in this agreement shall be construed as extending the rights of [that subsection] to a pilot during his probationary period." The rights that are not extended to a probationary pilot include a prohibition on discharge "without just cause," a right to present information concerning a potential disciplinary matter, and the right to notice of the facts on which discipline is based. It is undisputed that if the Employee Handbook and the CBA conflict, then the CBA controls. To the extent that the Employee Handbook grants a probationary pilot a right to "progressive discipline," it conflicts with the CBA, for it would undermine the express provision of the CBA that declines to require even "just cause" or "notice" before a probationer is discharged. Trans States, therefore, did not violate its policies and procedures by terminating Hussein, rather than imposing a lesser sanction, and by discharging him without notice and an opportunity to be heard.
Second, Plaintiffs have not demonstrated that similarly-situated probationary pilots have received more favorable treatment from Reed than did Hussein. To establish that a similarly-situated employee received more favorable treatment, the evidence must show that the similarly-situated employee "dealt with the same supervisor, [was] subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances." Cherry v. Ritenour Sch. Dist.,
Plaintiffs attack Reed's explanation of the South Bend incident based on the testimony of a pilot, Lionel Purnwasy, who participated in the training exercise. Purnwasy testified that he heard it rumored after the trip that two probationary pilots and one non-probationary pilot were fired "[w]ithin a week" of the anonymous call, (Pls.' App. at 373, 383-84), and Plaintiffs allege that the timing suggests that Reed conducted a more thorough investigation than he did for Hussein, whom he decided to fire almost immediately after he received Conrecode's call. We disagree that this "rumor" conflicts with Reed's testimony. Reed acknowledged that he conducted a brief investigation into the conduct of non-probationary pilots who were fired as a result of that incident, so a statement that all of the pilots—probationary and non-probationary — were fired "within a week" does not conflict with Reed's testimony that the probationary pilots were terminated immediately, while the non-probationary pilots were terminated shortly thereafter.
Nor does a discrepancy between the testimony of Reed and Purnwasy about the numbers of pilots involved create a genuine issue of material fact. Reed recalled that six or eight pilots were involved in the training exercise, and that all of them were terminated for drinking. Purnwasy said 12 to 16 pilots were in South Bend at the bar, but only three were drinking and eventually terminated. Plaintiffs contend that Purnwasy's version supports an inference that Reed must have investigated the allegations in the South Bend case to determine which pilots should be terminated, and that the South Bend probationary pilots thus received more process than Hussein. But Reed testified that the anonymous caller in the South Bend incident did not provide the names of the pilots involved, so to the extent Purnwasy is correct that not all pilots were terminated, his version of events implies only that Reed was required to make some inquiry to determine the names of the pilots who were allegedly drinking at the bar. Purnwasy's explanation does not contradict Reed's testimony that he acted to terminate the probationary pilots as soon as they were identified as drinking in the bar.
The EEOC suggests that the pilots in South Bend were not similarly situated to Hussein, because they committed a more serious violation (drinking within 12 hours of reporting to duty), and that a jury could reject the airline's contention that the South Bend incident demonstrates that other probationary pilots were treated like Hussein. But the burden is on the plaintiffs to show that similarly-situated employees were treated differently in order to make a showing of pretext. Cherry,
Third, we reject the suggestion that because other Trans States managers may have afforded probationary pilots more process than Reed gave to Hussein, this tends to show that Reed was motivated by race, religion, or national origin. The EEOC points to testimony suggesting that if supervisors other than Reed had been responsible for addressing the anonymous call about Hussein, they may have investigated the identity of the accuser and the facts of the incident before making the decision to terminate employment. This evidence, however, neither undermines Reed's testimony that he treated Hussein as he treated other probationary pilots, nor shows that Reed's treatment of probationary employees is inconsistent with Trans States's disciplinary policies and procedures, as set forth above. That a different manager may have exercised his discretion to handle the situation differently does not support a finding that Reed acted based on an impermissible motive.
Fourth, we do not think Reed's allegedly "shifting explanations" for the decision to terminate Hussein reasonably support an inference of unlawful motive. Reed testified in his deposition that he decided to terminate Hussein because of information from the anonymous call that Hussein was in a bar in uniform, after he received confirmation from flight managers that Hussein was in St. Louis at the time. The EEOC investigation report from 2002 states that Reed also relied on a telephone call from the FBI about Hussein when he made the decision to discharge Hussein without further investigation. The EEOC report quotes Reed as stating that he had decided to conduct an investigation of the incident, but then called it off when he heard from the FBI.
This conflicting testimony is different from the type of "shifting explanation" that we have said would give rise to an inference of pretext. See, e.g., Young v. Warner-Jenkinson Co., Inc.,
Finally, we are not persuaded that this case should be submitted to a jury simply on the theory that Reed's explanation for his termination of Hussein is "inherently incredible." Credibility questions, to be sure, are for resolution by a finder of fact, but at least where an employer's legitimate, non-discriminatory reason is not truly fanciful, there must be some positive evidence to rebut the employer's explanation and create a genuine dispute about credibility. "[T]he simple fact that the employer's testimony is necessarily self-interested" is not "enough under our previous cases to allow the jury to find that the employer's proffered reasons were pretextual." Nelson v. J.C. Penney, Co.,
III.
Trans States appeals the district court's denial of attorneys' fees under both 42 U.S.C. § 2000e-5(k) and 28 U.S.C. § 1927. We review the court's denial of attorneys' fees for an abuse of discretion. 42 U.S.C. § 2000e-5(k); Am. Fed'n of Musicians, Local 2-197 v. St. Louis Symphony Soc'y,
Trans States also argues that the district court abused its discretion by declining to order reimbursement of attorneys' fees based on the EEOC's failure to satisfy its obligation to conciliate. The EEOC may bring a direct suit against an employer only after it has attempted to conciliate in good faith but failed to reach an agreement. 42 U.S.C. § 2000e-5(f)(1); Johnson v. Nekoosa-Edwards Paper Co.,
* * *
The judgment of the district court is affirmed.
Notes:
Notes
The Honorable Thomas C. Mummert, III, United States Magistrate Judge for the Eastern District of Missouri, presiding with the consent of the parties pursuant to 28 U.S.C. § 636(c)