*3 MELLOY, Circuit Judge. According Caucasian male. to Green’s deposition, harassing began Howard her appeals grant Linda Green of sum- using racial slurs to describe her. mary judgment against claims of *4 Specifically, Howard Green “mon- called environment, racially hostile work discrim- key,” monkey,” “chimpanzee.” “black and inatory discharge, and retaliation under June, In Howard told that she Green § Title and VII U.S.C. Green The in- racially should wear dreadlocks. appeals grant summary judg- also the August sensitive conduct until continued ment her claim under the against Minneso- 5, 2002. Act, ta Whistleblower Minn.Stat. 181.932, § reporting for her of discrimina- stop using Green asked Howard to racial tion at Franklin National Bank. affirm. We slurs, persisted engaged but he and demeaning other toward conduct her. Background I. Green told Howard that felt that she the Green is an African-American female primate rhetoric was to saying similar employed by who Franklin was National “nigger,” phrase “porch and the mon- Bank. She worked as a teller from March keys” historically was used to discriminate on August 2002 until termination against African-Americans. On several hearing 2002. Because we are this case as occasions, Green made written notes of the grant the of a summary judg- result dates of requests these incidents and her ment, view in the light we the facts most stop. specific Howard Those in- favorable to Green. The factual back- below, stances are along detailed with oth- ground complicated. of Green’s claims er related by issues raised Green. result, As a we first detail the allegations During June as she made to her work environment. Markoe, Franklin Beth National Bank’s Then, turn to specifics we of her com- Vice Operations, President of and Tammy plaints employer and the bank’s officer, Koop, a unprofessional- bank acted Next, responses to those complaints. we ly Specifically, toward Green. Green al- surrounding discuss the facts Green’s ter- leges that Markoe and were Koop blaming Lastly, mination. we describe other evi- many of Howard’s mistakes Green. dence related to claim. Green’s Further, Green believes that Markoe and Koop unprofessional in their commu- A. Work Environment nications with her. working Green started for Franklin Na- 10, 2002, tional Bank at its July Blaisdell Avenue location On Green felt she was Minnesota, in Minneapolis, and rudely by Kyle remained treated Kray,1 a commer- parties spell "Kyle Kray” 1. The differently. Cray.” spelled The district court name spells appellee "Kyle Kray” nothing the name as with a "K.” Since there is definitive appellant spells and "Kyle the name as proper spelling, in the record as to the we make about ra- complaints a cashier’s Howard’s Kray officer. needed cial loan during May cial was comments months immediately and rude printed check and June. get to it as she she would when said Green, According to possible. as soon Reep was on when vacation Howard, but Kray friendly toward made June non-race-related Green. demanding and with aggressive complaints her work about environment the President and CEO of Franklin Na- Green, 30, 2002, “I told July Howard On Bank, Dorothy Bridges. tional The sub- your asked if he to eat liver” and want complaints stance these concerned Howard told “eat liver.” [her] could criticism and not Koop, from Markoe before, that he eaten liver had Bridges Howard. told harassment then it sour. He de- found that tasted of them talk the two would movie the Lambs2 to Silence scribed Reep concerning complaints with occasions, other Howard made On Green. Koop. followup about No Markoe intimidating to Green. He remarks other Green, Bridges, meeting between people. he “gets her that even” place. took Reep 5, 2002, while Howard and *5 On 2002, 24, Reep On June returned the vault late the closing Green vacation, spoke from Green with her about afternoon, called Green a again Howard Markoe. felt Green’s conflicts with Green August On “monkey” “chimpanzee.” and differently treating her Markoe 2002, 7, to Howard sent email Green with and Reep than Howard. met Markoe you ... “Just wanted to let know that said to the conflict between Green discuss funny head.” Green felt got shaped You Reep, attempt- According them. to Green her head was race that the comment about Markoe, explain to concerns to but ed her related. Markoe did not listen. and Franklin Complaints 10, 2002, B. Green’s July the reported On Green Responses National Bank’s Kray Reep. spoke to Reep incident with Kray, times with Erdman several about specified that are not the At dates Reep he Erdman never told whether record, Howard’s racial reported Green spoken Kray. had with supervisor. to her Reep, harassment Kim 10, 2002, July complained and Also on Green Reep is a woman of African-American Erd- heritage. racial harassment to Reep told Green that about Howard’s Caucasian had mam. She Erdman that Howard anything not do for Green and told Reep could he “monkey.” her Erdman said wrongful should the con- called report that Green Erdman, it.3 Howev- Wayne president speak a vice of would to Howard about to duct Green, er, Erdman never according not to Franklin National Bank. did a nice spelling his liver fava beans and to "K” of the with some have decided use the Database, to be consistent. Movie at name chianti.” Internet http-J/imdb.comltitlelttOl029261quotes. explain exactly the not 2. While record does Green, the movie to how Howard described him about 3. Erdman denies that underlying of the movie consis- the theme during any racially language the insensitive devouring the about tent with comments meeting. purposes for of re- this liver. The is about cannibal- Green's movie summary viewing judgment, we for motion Lecter, killer, serial Hannibal who liked istic light to the the most favorable view facts in movie, said, During victims. the he to eat his Green. taker to test me. I ate census once tried "[a] about spoke tempting complaint. with Howard Green’s com- to the resolve There plaint. requirement report was no harassment president the bank. Franklin 2002, 31, July meeting Markoe held a On National policy required Bank’s Reep and to discuss with Green concerns investigation proceed from perspective performance. about work The Green’s of a victim of harassment reasonable and meeting did mention not alleged not the of an viewpoint harasser. complaints her about work environment. Upon beginning employment, her Markoe cited several incidents where she signed acknowledging a form that she un- her, requested had to do things derstood Franklin National Bank’s harass- immediately. but Green did not do them policy. Bridges ment felt that it was not Markoe, According Reep spoke duty pursue complaint. Howard about the racial slurs for first course, view, proper in her was to wait for August time on 2002. This was How- Green to make a formal complaint with warning ard’s first from a supervisor about Reep. racially Reep insensitive conduct. also spoke with President Vice Erdman. At again Reep met with gave time, already Erdman said he had complaints her two detailing written How- spoken with complaints. Green about the August ard’s of the “monkey” use word He Reep did not indicate to what was July his wanting statements about being problems. done to resolve the Reep eat her liver. told Howard about told him day complaint
On that if after the some- thing incident at vault when like that happened again, Howard told he would *6 Green a be “chimpanzee” she fired. was and “monkey,” told Reep Green about what When Green received the “funny shaped Howard had said. Green also left a voice- email, head” she forwarded it Reep. to mail with Bridges about Howard’s state- Reep brought email to Markoe and ments. Reep Green told that Green need- meeting, they Erdman. After decided to ed speak Bridges, to Reep with said Bridges terminate Howard. was not part Bridges that would not want to hear from of the decision-making process to termi- her. Reep proposed that Reep Green and nate Howard. try to work out the ig- situation. Green Reep’s warnings nored and went to speak C. Green’s Termination with Bridges. put her complaints She about August Howard’s 5 comments in 21, 2002, August On spoke Green writing. told Bridges Green to take the Reep taking about classes the following complaint written supervisor her and week. job These classes were for another make a complaint. formal Reep gave that Green to do on wanted her free week- Howard warning racially a second about ends. The were classes scheduled on language. insensitive Monday, Tuesday, Wednesday. and Reep arranged
According Bridges, for a teller from the company’s Blaisdell location, policy on Shelly, sexual to cover for applied harassment also Green while racial she policy required According harassment. The attended classes. Reep, that after an employee notified or Green’s time was “all his her missed set” in terms supervisor harassment, direct supervi- coverage. Reep told Erdman and an- sor would investigate complaint. other officer at the bank about the cover- supervisor responsible was also age. for at- agreed Erdman to the coverage ar- Erd- classes. Green informed that could attend so Green rangement Erdman admit- man that were deposition, In his the classes free. classes. employees were allowed to that other ted It that apparent became Erdman hours. during classes work attend by their upset Green was conversation. 23, 2002, her Reep gave two- August On Erdman told Green to turn off her com- told her to Erdman. Erdman
week notice away. and drawer puter put her He accepted resignation to be that he Miller, her letting go.4 her he was vault immediately. The was au- effective Markoe, would Green’s Koop and cover Reep allowed to leave the before was dited gone. teller duties after she was made her Reep bank. stated that this feel prepared Markoe a series of memos re- felt Reep generally like a criminal. performance lated to issues. unprofessionally when she was treated she only that these memos sur- resignation. noted that her offered firing suspects faced after and that she her Miller, employee, Lynn Caucasian they prepared after the fact. The when she gave treated the same not been memos rude to cus- stated Green was notice. her two-week tomers, staff, memos and Markoe. The August at 24. worked the bank on problems also detailed some Green was attempted to with Erdman She confirm having processing. with lock box her permission had to take classes that she memos were at a prepared believes the following week. Erdman told her to date none of the issues later because call Monday him go to her class August therein were discussed her day’s in her break classes. during meeting Reep with Markoe. also stated to her August Green went class On that she had never seen memos before during called Erdman her break. He deposition Reep related to this case. that she needed at the told her would be said that was unaware of of the she day, August bank the next underlying described in the Markoe issues the bank later on came to that the Mar- Reep memos. further noted p.m. at 3:00 She worked two began work unusual it was koe memos were because *7 talk she time to with hours before found job per- to evaluate the generally Reep’s Erdman told Green that again Erdman. formance of tellers. at and she was needed work regu- Franklin Bank have a National did not class. go she should to her that Normally, performance policy. lar review at that be work told Erdman she would employee performance receive a an would for and that Miller could cover her. noon improvement plan review and an individual Erdman that she could not re- She told days Reep with bank. ninety the her class. told Erdman schedule was performance that stated Green’s Reep coverage arrange- had that made ninety-day “okay” Reep wrote the when a teller at the Blaisdell loca- ments with neither a performance review. There is Erdman said he needed Green there tion. nor indi- performance record of the review coverage arrangement that the was and docu- plan. Neither improvement He the vidual unacceptable. sugges- also refused discovery. during was to Green given Miller ment tion that cover for Green. Erdman Franklin Bank not have pay to for the cost of Green’s National does offered events, to Green. denies account of but most favorable Erdman this above, light we the facts in a as noted view (8th Cir.2005). why performance re- 406 F.3d In explanation improvement so, plan doing light individual are all in a view and we view evidence missing from file. non-moving party. most favorable if Summary judgment proper Id. “the
D. Related Facts Other pleadings, depositions, inter- answers to file, rogatories, together at admissions on Green also describes other incidents and affidavits, any, with if Franklin National Bank that she show that there believes racially genuine is no as to fact alleges motivated. She issue material moving and that to a park party Erdman told her not to her car is entitled judgment front of matter Fed. and told her to it. as a of law.” bank move 56(c). workers, Erdman did not other R.Civ.P. tell includ- Miller, ing customer Caucasian service
representative,
to move their cars. Green
III. Hostile Work Environment
asked
if
Miller
Erdman had ever asked
The district court found that
did
car,
Miller to
and
move her
Miller said she
not
prove that
harassment at her
had not
been told
do so.
workplace
pervasive
was
severe
Erdman stated that he does remember
enough
argues
to be actionable. Green
telling Miller to move her car on some
that the
court’s reasoning
district
is flawed
occasions.
because it failed to properly apply the
Green also
that Markoe treated
totality
analysis
of circumstances
outlined
differently
minorities at
the bank
from
Inc.,
Systems,
Harris v.
Forklift
says
non-minorities.
Markoe
17, 23,
U.S.
114 S.Ct.
Markoe her to go would not allow home. (1) belonged he protected [or to a she] addition, In had Markoe several conflicts (2) group; subjected she] he [or Reep. Reep felt that Markoe was (3) harassment; unwelcome the harass taking over her responsibilities super- race; (4) ment upon was based harass date, vise the tellers. At some later Mar- term, condition, ment privi affected a or assigned koe was actually supervise (5) lege employment; her] his [or Reep, but the intrusions into her work employer knew or should have known preceded areas formal assignment. of the prop harassment failed to take Reep Markoe also told that she would have er Douglas remedial action.” Ross v. *8 expected Reep’s eyes to have son blue like 391, (8th County, 234 F.3d 395-96 Cir. his Reep father. told When her that her 2000). underlying The wrongful conduct in eyes, son did fact brown have Markoe “must be sufficient to create a hostile envi asked, “does that mean she is full of shit ronment, objec as it would be both viewed you?” like made other Markoe comments tively by person a reasonable it was and as about Reep’s Reep mixed race children. actually subjectively by viewed the victim.” told you Green that Markoe said “so have Bros., Inc., 835, Howard v. Burns 149 F.3d poo poo kids too.” (8th Cir.1998). 840 II. of Standard Review The court granted summary district We of summary judgment review an order on hostile judg- work environment Servs., Inc., (1) ment de novo. v. Pope ESA claim the court found because
9H that she thought or Green had Howard pervasive severe was not harassment (2) actionable; em- “monkey” roughly and equivalent to be the term was enough ac- remedial legally took sufficient ployer to “Nigger.” agreed Other courts have court with district disagree tion. We Afri- calling with Green’s assessment or was not severe the harassment “monkeys.” can-Americans White v. BFI employer’s agree pervasive, (4th LLC, 288, Servs. 375 F.3d 298 Waste grant summary adequate was response Cir.2004). suggest “To that a human be- work environment judgment on the hostile physical appearance essentially is a ing’s claim. goes of a jungle caricature beast far be- yond unflattering; mere it is degrad- the United States Green and in ing humiliating and the extreme.” Id. Employment Opportunity Commis Equal “monkey” use of the term and other (EEOC)5 alleged that the con argue sion similar part words have been actionable in this matter was so severe duct at issue it affected a material harassment claims across coun- pervasive racial “Unquestion Metro-Mark, Inc., employment. try. condition v. 45 See Jeffries ably, working (8th Cir.1995) a environment dominated 258, (plaintiff F.3d 260 was a of Title violation racial slurs constitutes “monkey”); v. called a Webb Worldwide Corp., Ink. N. Flint Am. Jackson v. VII.” Serv., Inc., 1192, 407 F.3d 1193 Flight Cir.2004) (8th 791, (quoting F.3d 794 370 (11th Cir.2005) a (plaintiff called Co., Bread 646 F.2d Bunny v. Johnson “monkey”); v. Diamond Auto Spriggs (8th Cir.1981)), reh’g 1250, 1257 mod. (4th Cir.2001) Glass, 179, 242 F.3d 182 (8th F.3d Cir. grounds, 382 869 on other “monkey” was called and “dumb (plaintiff 2004). physical threats consider We also monkey”); Pipefitters’ Daniels v. Ass’n in conjunction racial harassment in 597, 906, F.2d No. 945 910 Local Union determining a hostile work envi whether (7th Cir.1991) (plaintiffs “porch were called Harris, at ronment exists. U.S. “baboons”). monkeys” and rheto- Primate However, if the comments S.Ct. intimidate African- ric has been used to casual,” they unlike “[s]poradic are or are monkey imagery has been Americans a hostile work environment ly to establish racial harassment other significant Chrysler Corp., 173 F.3d claim. Carter v. Morgan McDonough, well. contexts as (8th Cir.1999). Frequency (1st Cir.1976) (in 540 F.2d factor, infrequent but even harassment case, desegregation Caucasian stu- school enough can to be action conduct be severe dents harassed African-American students Dep’t See v. Mo. Soc. able. Bowen nigger by chanting apes”). “assassinate (8th Cir.2002). Servs., 878, 884-85 311 F.3d all, eight alleged there instances In are matter, present allega- In the using racially terms of Howard insensitive to her tions about Howard’s statements time Green in a three-month toward com- actionable. His are sufficient to be just have a few incidents frame. We found at frequent ments were directed for a longer span time to be sufficient did not a hand- Green. While Green make claim. See hostile work environment of all the Howard written notation times *9 Inc., Quebecor Printing Reedy Eagle, v. a “monkey,” called Green a she created (five (8th Cir.2003) F.3d 908-09 record of several instances. 333 separate and as to the retaliation EEOC brief in this the harassment 5. The submitted disagreeing find- case with the district court's claim. severity pervasiveness of ings as to 912 within harassment that Bank
incidents of seven Franklin National terminated actionable). Further, Howard. until months was as waited early to complaint, make a formal to wanting Howard’s comments about disingenuous it is to argue for her that the noteworthy. eat Green’s liver are also bank should have sooner acted to dismiss not While the comments were in them- employees Howard.6 The bank’s not may obviously motivated, racially they selves do case, have acted in ideal in manner this constitute the sort of physical threats Franklin remedial actions of National significant are this one. cases like How- Bank were sufficient. “get ard also told Green liked to he even” who people wronged with him. Howard by The actions Franklin National of atmosphere facilitated an intimidation promptly Bank followed formal com that accentuated the effect of his racial plaint. firing harasser in a slurs directed at Green. hostile work environment case can effec Taking light all inferences in the most tively plaintiffs bar claim. See v. Zirpel Green, favorable to we find sufficient se- Am. 111 Sys., Toshiba F.3d Info. verity and pervasiveness of harassment for (8th Cir.1997). argues that Frank Green’s claim be actionable. Because lin Bank not National did fire Howard we find Howard’s comments alone were However, promptly enough. the cases sufficient form a work hostile environ- cites to in support her claim ment, we do not other discuss the factual volved situations employer where the claims of harassment Green. made much longer waited than one month employee. Therefore, terminate the we affirm grant we grant summary judg conclude that the judgment summary on the hostile work ment on the hostile work environment claim environment because Green has claim as Howard’s harassment was failed to show that Franklin National Bank proper because Franklin National Bank did proper not take the remedial action. prompt took remedial action. necessarily Title not require VII does an employer fire a harasser. Davis harassment, As to the other alleged it is Inc., Distribs., Tri-State Mack 981 F.2d not clear that reported Green ever it to (8th Cir.1992). Nonetheless, anyone racially or that it was motivated. Franklin National Bank fire did Howard to Green’s conflict with Markoe does not have end against the harassment Green. any of the traditional marks of racial complaints made several informal may harassment. It been unprofes- have about sional, her harassment leading the time but there is no link to animus. racial up to early August She Similarly, nothing 2002. also had there record meetings with the CEO of the support bank and problems Kray other supervisory employees where she were the result of racial differences. Fur- complained ther, about non-racial harassment at other allegations re- never the bank. She that she ported told Erd- part as the bank’s internal proce- man July allegations about the pressed of dures. would We be hard to hold racial Assuming harassment. that claim is the bank could be for liable conduct that true, it still less reported. than one month later was never actions, It is many unclear from the record how some written records of Howard’s alleged reports incidents occurred the al- she also did incidents which she leged July meeting. keep While did not make record.
913 “present[] evi- It is Green’s burden Discharge Discriminatory IV. disputed ma- sufficiently supporting dence termi she was argues that Green jury a reasonable could facts that terial prove a race. To of her nated because her] in or favor.” [his return a verdict discharge, Green discriminatory of claim Educ., 272 Dep’t v. Arkansas Jackson (1) of a was a member show: she must (8th Cir.2001) 1020, (quoting F.3d (2) class; for qualified she was protected City Rogers, 974 F.2d Gregory v. (3) an adverse she suffered position; (8th Cir.1992)). has offered no Green (4) action; is evi there employment replaced that Miller her. prove evidence to an inference gives that rise dence Miller, along other bank em- While Bank, Rodgers U.S. discrimination. See on an ad hoc replace did Green ployees, Cir.2005). (8th N.A., 417 F.3d basis, that she was the there is no evidence parties and both The district court posi- replacement for Green’s permanent her burden as has met agree result, not met her As a Green has tion. discriminatory of a first three elements point. on this prima minimal facie burden the district discharge claim. allegations did not show other re found that Green to Green’s court As treatment, to an inference she has not gives garding rise differential evidence any way in to her dis agree. them We connected discrimination. causal charge. plaintiff A must show some employee to held that for an have We treatment and link the differential between claim, he discriminatory discharge prove a action. In this employment adverse her similarly situated show that or she must case, allegedly employees of the who none in accused of “involved or employees were any role in differently had treated Green [were] conduct and or similar the same connection, firing.7 her Without ways.” Id. at 851 in different disciplined treatment cannot claims of differential Pharms., 360 Aventis (quoting Wheeler v. discriminatory in an inference of support Cir.2004)). (8th ar- F.3d Gallagher Breeding v. Arthur J. tent. See proper- not court did gues that the district (8th Co., 1151, 1157 Cir. 164 F.3d However, we Rodgers test. ly apply the 1999). analysis court’s no error the district find point. on this has not established Because Green discriminatory dis- case for prima facie replaced that she was argues pretextual not discuss charge, we need Miller, a female. by Caucasian her duties Instead, we ad- for this claim. motives alleges that she was denied further She below, in the pretext the issue of dress as Miller. privileges parking the same retaliatory discharge. discussion Also, conduct of argues that racially motivated Markoe was Kray and Retaliation friendlier with V. they were both
because Howard. it unlawful for Title makes VII against an Green, to discriminate employer replacing to Miller
As action protected engaging employee this claim. support is no evidence there claim, were not the memos is that prepare retaliation memoranda While Markoe did Green, termination. As after Green's prepared until gave poor performance reviews Markoe, result, fact, as de- reports from firing. In were not linked to these allegations, were not con- scribed Green's Markoe argument makes about the discharge. memos, nected to Green’s regard to the we discuss in which *11 914 making alleges a racial harassment com harassment. She also that she la-
such as 2000e-3(a). § “To plaint. 42 U.S.C. ter told Erdman about instances racial claim, a prove plaintiff must a retaliation In August, harassment. she told the CEO (1) in engaged he or she statuto show that bank, Bridges, of the the about instances (2) activity; rily protected adverse em meeting racial harassment. After the ployment against was taken him or action CEO, complaint with the she filed a formal (3) her; a causal connection exists detailing experi- the racial she harassment Gilooly two events.” between the Mo. reporting enced from Howard. These ac- Servs., & 421 Dep’t Health Senior F.3d very protected the tivities are essence (8th Cir.2005) (citing 739 Rheineck v. activity under Title VII. Tech., Inc., F.3d Hutchinson 261 757 (8th Cir.2001)).8 A plaintiff “need not es seemingly district court intro The op [he tablish conduct which she or] the requirement duces a second Green: posed discriminatory in fact was but rather “oppose that she Franklin National Bank’s faith, good must demonstrate a reasonable alleged respond failure to to her com belief that conduct underlying the violated plaints.” this burden is not the Foster v. law.” Time Warner Entm’t upon existing statutory authority based or (8th Co., Cir.2001) F.3d 1195 plaintiff only report case law. A need the (internal omitted). citations alleged wrongful activity. There is no ad
The defense can rebut a retalia
ditional requirement
plaintiff
that the
re
tion
“non
showing
retaliatory
claim
port
perceived
company
the
failure
the
employment
reason
the
adverse
ac
to take proper remedial action.
Rheineck,
tion.”
at 757. “If
F.3d
the
Pope
The district court relies on
v. ESA
reason,
legitimate
defendant can show a
(8th
Services., Inc., 406
F.3d
Cir.
plaintiff
the
given
must show
the
rea
2005)
findings
as the basis for its
on this
son
only pretext
was
for discrimination.”
issue.
believe that
is
We
reliance mistak
Gilooly,
We
timing
timing
or whether
alone can es
Green cites the
when
*13
facie retaliation claim be
termination in relation to her
prima
complaint,
tablish a
timing alone is
cov
cancelling
arranged
cause we have said
insuffi Erdman’s
of her
rebutting
pretextual
erage
cient to show a
motive
tell
plans,
normalcy
allowing
the
legitimate, non-discriminatory
classes,
a
reason for
arrange coverage
ers to
to attend
Kohler,
employment
an adverse
action.
af
preparation
the
of the Markoe memos
(8th Cir.2003).
7
This is how Green termi- Cir.1994); Co., Hicks v. Gates Rubber nation in deposition: her (10th Cir.1987). 1406, 1419 However, F.2d “A Wayne came back and [Erdman] presumption this does not help Green’s [Green], I you said Linda need here argument in case. this Green was termi says I Wayne, tomorrow. And can for failure assigned nated her to work Lynn for me? he cover And [Miller] shifts. That she was otherwise an effec no, Lynn kept saying cannot. And employee tive no bearing has on that stat my Wayne that’s when me to turn ed for reason her termination. computer put away my off and drawer away. Ultimately, find that prof- we
Q your you employ- Did consider support fered evidence her retaliation that point? ment at terminated claim is insufficient as a matter law. something A me. I He didn’t tell said light While we the view evidence the says Wayne, says letting I I am Green, most favorable to there are several —he you go, something or I says like that. undisputed facts which that demonstrate you the why you’re would write reason Franklin Bank legitimate, National had a letting go piece me down on a of paper? non-discriminatory terminating reason for no, says professional.” He it’s not terminated, Green. After Howard was his position was not filled. argues Reep Green had also reason Franklin recently gives firing resigned. National Bank for This left Franklin Na- her is not Further, tional Bank supported by staffing in a severe crunch. evidence. Green argues Consequently, that the reason for the the bank had a termination non-discrim- thus, and, pretextual hiding inatory is denying permis- an unlawful reason for retaliatory support To pretext motive. her sion to take classes. When Green declined memos, tions, Smith, they in and of 109 F.3d at be cannot themselves, employment constitute adverse they only prepared if were after she was fired. However, contrary action. such claim is So, value, allegations taking Green's at face position prepared memos were as we separate cannot treat memos as a part litigation. negative job of this While re- employment adverse action in this case. employment views can constitute adverse ac- Co., (8th classes, the bank had a Finch 123 F.3d during her Cir. to work 1997) (adding performance terminating reports poor her em- legitimate reason for employee pretext). was evidence ployment. there is no evidence these Further, good as a show of faith memos were prepared fact. persuade to not attend her trying to only speculating about when they classes, offered to reimburse Erdman Nonetheless, prepared. we do not cost of the classes. That the they help find that Franklin National classes were free does not diminish Erd- because, arguments Bank’s to this claim as compromise con- attempt man’s to reach a above, as noted Green was terminated for cerning scheduling of classes. Before shifts, missing assigned being not for inef *14 termination, Franklin Green’s National fective at work. attempts Bank to accommo- made several Nonetheless, reviewing after the rec- schedule. That those date Green’s class ord, we cannot conclude that Green has unfortunate, attempts but tends to failed is fact raised issue of material Bank that Franklin National was not show Franklin National Bank’s motives for her terminating for dedicated to Green retalia- pretextual. termination staff tory reasons. at shortage undisputed that time is in the arguments employees Green’s that other attempted record. That Erdman com- unpersua- take classes is were allowed to is also not promise Green rebutted. employ- sive she is unable to show because speculation an ulterior Green’s about mo- classes during ees were able to take by Franklin Bank is unsup- tive National staffing crunch. The situation Frank- by other ported contradicted undis- in at the lin National Bank was time of puted Consequently, facts in this case. that the Green’s termination meant normal fails. Green’s retaliation claim coverage were not arrangements available. as Insofar we have treated Green’s result, National As a Franklin Bank has analogous to whistleblowing claim as her in statutory showing met its burden a non- claim, affirm the retaliation we district for discriminatory terminating reason judgment claim as court’s on that well. Green. analysis, In the burden-shifting Green Conclusion VI. reason argues legitimate that this for her reasons, we affirm foregoing For the However, pretextual. termination her judgment the district court. entirely speculative. pretext evidence of is point significant Green unable LAY, Judge, concurring part Circuit timing to beyond evidence mere demon- dissenting part. wrongful
strate a motive for her termi- Although large part I with the concur nation. majority, I conclusions offered re- argues Bank Franklin National spectfully on the issue Green’s dissent detailing per Markoe’s memos Green’s Minnesota federal retaliation and state pretext argu formance undermine Green’s In addition to whistleblower claims. tem- ment. poral proximity, there is further circum- poor perform Markoe memos about her Franklin suggesting Na- stantial evidence may ance have created the fact. been Bank’s reason for Green’s tional offered actually prepared If the memos were for refused to work her termination —that she merely litigation, pre- support regularly this it would further scheduled shift—is pretext argument. Kim v. Nash textual. provided deposition Specifically, August that on Bank
testimony Vice Wayne her
President Erdman informed August 27 replacement
that her from been branch had cancelled.
Blaisdell subsequently repeated made re- employee have bank
quests to another Washington
from the Avenue office work scheduled, but previously
her since reas- August
signed, shift on work request Erdman denied her
claims that being go, her that she was let refusing provide Green with
while also explanation
written termination. question
This of events calls into version actually
whether refused work on thereby undercutting very proffered legitimate,
essence of bank’s
nondiscriminatory reason Green’s ter-
mination. testimony true,
Taking be as must, jury easily
we reasonable could on fact pretext
infer based that Green
never refused work as the Therefore, I alleges. respectfully
bank
dissent.
Raymond LITTRELL, C. Appellant,
Plaintiff — CITY, MISSOURI;
CITY OF KANSAS Dyer, Individually A.
Richard and in Capacity
his Official as Chief of the Dept., Fire
KCMO also known as
Smokey, Appellees. Defendants —
No. 06-1223. Appeals,
United States Court of
Eighth Circuit.
Submitted: June 2006. Aug.
Filed: