George D. Philip v. Ford Motor Company, a Delaware Corporation
413 F.3d 766
8th Cir.
2005
Check Treatment
Docket

*1 that, having done but once lines]. have George PHILIP, D. Plaintiff- [applied I’m guidelines], bound then Appellant,

whatever those turn out to be.” numbers Thus the court district seemed discontent

with the sentence that Mr. re Williams COMPANY, FORD MOTOR ceived, Corporation, but believed that its hands were a Delaware Appellee. tied character of mandatory Defendant - guidelines. This is the kind error that No. 04-1735. rights. affects a defendant’s substantial Appeals, United States Court of Rodriguez-Ceballos, See United States v. Eighth Circuit. Cir.2005); Pirani, Submitted: 2005. Feb.

406 F.3d at n. 6. July Filed: 2005. Mr. Williams still cannot obtain Rehearing Rehearing En Banc relief, plain-error however, if the district Aug. Denied 2005.* “ ‘seriously court’s did not error affect[ ] fairness, integrity, public or reputation ” judicial proceedings.’ United States v. Olano, 725, 732, U.S. S.Ct. (1993) (quoting L.Ed.2d Atkinson,

States v. 297 U.S. (1936)).

S.Ct. pros 80 L.Ed. 555 The

pect that Williams’s sentence is much Mr.

more than what district severe imposed pursuant

would have to the advi

sory guidelines and the other consider 3553(a) §

ations set out 18 U.S.C. satis

fies plain this last element of error. See

Rodriguez-Ceballos, at 941-42.

We therefore vacate Mr. sen Williams’s

tence.

III.

We affirm Mr. Killingsworth’s sentence

and Mr. guilty plea, Williams’s but we

vacate Mr. Williams’s sentence and re-

mand to the district court for resentencing

under Booker.

* Judge participate did Gruender in the con- sideration or decision of this matter.

MELLOY, Judge. Circuit George Philip D. appeals the district grant summary judgment court’s1 (Ford) Company favor of Ford Motor on arising his claims of race discrimination Philip removal a “25 out Ford’s from driver-inspector” job mile 1998. We affirm. underlying

This Court set forth the facts opinion, Philip of the case its v. Ford Motor 1022-23 Company, Cir.2003). Philip, an African-Ameri- can, worked for at its Twin Cities Ford Assembly Plant from 1988 until Feb- April placed he “no ruary when on status.” filed suit work available claiming he was disabled and was disability discrimination. He also victim his claimed discrimination on the basis of Further, Philip and religious race beliefs. subject alleged that he had been retaliation. 13, 2001,

On June effectively summary granted judgment, dismissing Philip’s and state claims federal racial events for discrimination prior that occurred to 1997. The June On appealed. was never 2001 order March the district entered order that dis- judgment second Philip’s claims. missed the remainder of May Philip appealed this On order. as this the dismissal Court affirmed discrimination, disability but re- to the respect versed the order with In claim. race discrimination posb-1997 MN, Satre, argued, Minneapolis, D. Eric claim, re- Philip alleged Ford appellant. for place position him in permanent fused to DiVita, City, racial motivations and argued, Nicholas Kansas because of L. situated, grandfathered MO, Ford two appellee. for positions, the same employees into white MELLOY, HEANEY, seniority. Philip, 328 BYE, lack of despite their Before F.3d at 1026. Judges. Circuit Frank, W. sota. 1. The Honorable Donovan Judge District of Minne- States District for the (second

In quote). October Ford moved for sum- If establishes mary claims, case, remaining on the facie the burden shifts to Ford arguing that Philip present could not suffi- a legitimate, to articulate non-discriminato ry cient evidence that situated em- employment reason the adverse ac *3 Co., not ployees who were members of tion. v. Williams Ford Motor 14 F.3d (8th Cir.1994). treated, 1305, 1309 protected disparately class were required remaining to as sustain his race Philip argues ap- that the district court February claims. On the district plied the incorrect standard the granted Ford’s motion for “similarly prong situated” of the test. The judgment, rejecting Philip’s remaining satisfy to stated that the final ap- race discrimination claims. now Philip prong, Philip to required identify was indi- that peals decision. viduals who “have with dealt the same subject supervisor, have been to the same We review de novo district the standards, and in engaged the con- same grant summary judgment. court’s of duct.” Clark v. 218 Runyon, F.3d Pharm., v. Wheeler Aventis 360 F.3d (8th Cir.2000). suggests, He citing this Cir.2004). We review “the record Wheeler, Court’s decision in that this stan- light in the most favorable to the nonmov stringent dard was too and that we should party.” T, ing v. AT Gilmore & 319 F.3d Wheeler, the Wheeler (8th Cir.2003). apply articulation. Summary judg 360 F.3d at 857 (stating the be standard to ment is if appropriate there is genuine “no employees “whether the are involved any as to issue material fact and the mov ... the same or similar conduct are ing party and is entitled to a as a judgment 56(c). disciplined ways.”). if different matter law.” Fed.R.Civ.P. Even Ac that cordingly, we assume Clark is a more summary judgment stringent to survive Philip “similarly statement of the present must facts to situated” adequate per stan- Wheeler, Philip mit racial dard than as alleges, Philip inference of discrimination. Bd., not met to produce Craik Minnesota State Univ. 731 has his burden tangible (8th Cir.1984). evidence, F.2d even under his articulation aof less burdensome Wheeler standard. prima To showing make facie discrimination, Philip prove must that: After careful review of the record (1) (2) class; he is a of a protected case, member in this we conclude that Philip failed met legitimate expectations he the of his to a establish facie case of racial (3) employer; he suffered adverse em discrimination because he did prove not (4) action; ployment and employees similarly situated that situated to him employees that not were members differently. Philip were treated cites the protected differently. by class were treated physician, affidavits the plant Dr. Zu- Gilmore, Kahn, 1046. In present F.3d at bieda and a Committeeperson for ease, the prongs first three this test are the United Auto at the Workers Twin Cit dispute. prong, Assembly Under the fourth plant ies from through bears proffer “specif Nancy the burden to Schillinger, as evidence that ic, tangible evidence” that employees disparate who received treatment. “similarly were situated all respects” unnecessary any to It is to reach conclusions him received different from regarding admissibility treatment of these affida Inc., Ford. because, Rose-Maston v. NME Hosp., they admissible, if vits even are (8th Cir.1998) 1109 n. 4 only they disparate show that treatment (first Gilmore, quote); 1046 may plant. F.3d at have occurred at the They do Gilmore, Accordingly, at 1046. who re- individuals that not demonstrate burden, similarly- Philip failed meet his thus sum- disparate treatment ceived mary granted. Philip. appropriately instanc- as to a number of Kahn testified reasons, affirm. foregoing For the we disparate treatment possible es example, Kahn testified Ford. For HEANEY, Judge, Circuit dissenting. Manager Halver- Jack Human Resources reviewing I After respectfully dissent. place- the medical interfere with son would record, pre- conclude that has ment of black showing sented sufficient evidence representative used compensation

workers’ Ford treated situated white em- em- *4 language towards a black derogatory favorably Philip. ployees more than per- Ford Kahn also testified that ployee. her recom- plaintiff failed to follow medical a to require sonnel Our cases show regarding placement the of mendations that she he or is situated to em- However, Kahn’s affida- employees. comparison black in all ployees offered for rele- any as to provide does not evidence vit respects vant to meet the facie bur- different- those who were treated whether Cronquist City Minneapolis, den. v. of (8th It does not ly 920, were situated. Cir.2001); also 928 see Philip’s Kahn observed to Hall, connect what v. McGuinness Lincoln F.3d (2d Cir.2001) situation. plaintiff that a (explaining disparate need not show treatment with suggests also Schillinger’s Ms. affidavit identically only suf- employee situated but employees black were treated differ- that support the minimal similarity ficient to that ently. example, she testified two For that the differences treatment inference employees were treated differ- Caucasian discrimination”); “may to be attributable ently they sought on race when based Kimberly-Clark Corp., Radue v. posi- driver-inspector to reclassification Cir.2000) (7th (requiring that com- correctly conclud- tions. The fea- parable employees share the “common ed, however, Schillinger’s that affidavit of- meaningful compari- to a tures essential “comparability the proof fers no son”). relevant factors is not The set of positions” the into which the two Cauca- of rather, fixed; courts must determine It also not offer place. sians were did each which factors are relevant to case. comparability of the proof regarding the Goodyear Tire & Rubber Ercegovich v. See of seniority or the two Cau- qualifications (6th Cir.1998). Co., F.3d driver-inspector posi- casians who received and supervisor, factors While such as the Schillinger’s affidavit not show tions. does in, relevant when engaged the are conduct the two Cauca- grandfathering how disciplin- plaintiff alleges differences of Philip and the treatment Ford sians treatment, e.g., Runyon, v. ary see. Clark are connected. Cir.2000), they are F.3d Kahn Schillinger affi- Although necessarily arising cases relevant to disparate offer evidence of may davits under other circumstances. not, face, treatment, they on es- do their failure to contends that Ford’s requisite showing tablish the of sufficient twenty-five mile him to remain employees allow specific, tangible evidence it was position after was reclassified “similarly in all re- driver were who discriminatory because other disparate treat- spects” to received jobs permit- were reclassified were Philip’s claim. whose ment from Ford to sustain positions. oppo- ted remain in their In America, UNITED

sition to STATES judgment, he offered Appellee, Nancy Schillinger, the affidavit claiming two white male “grandfathered” positions they into after Appellant. E. Xavier HOLMES 34.) (Appellant’s App. were reclassified. at “grandfather- The affidavit clarifies that No. 04-1007. ing” practice allowing refers to the of Appeals, States Court employee job remain after reclassi- Eighth Circuit. placing job up fication rather than (Id.) bid. May Submitted: 2004. disciplin- claim is not based on July Filed: 2005. ary action allegation and there is no Rather, inadequate. his performance was

Philip alleges that a portion compa-

ny-wide bargaining agreement collective applied posi- to remove him from his

tion and applied employ- was not to white jobs

ees whose were reclassified in a simi- decisions,

lar fashion. disciplinary Unlike may

which be made an su- immediate

pervisor, policy dictated collective

bargaining agreement will be implemented uniformity.

with degree some Applying requirements of Runyon to non-disci-

plinary Philip’s places claims like inap-

propriate on plaintiffs burden sim- show

ilarities irrelevant to their claims. The

positions Philip and the white reclassified, comparison

offered for

and should opened have been for bid

awarded on seniority. the basis of These are therefore respects. all Applying relevant the re-

quirements Runyon non-disciplinary

claims places like Philip’s inappropriate plaintiffs

burden on to show similarities

irrelevant to their claims. Accordingly,

would reverse the of the district

court and remand this case further

proceedings.