Toni BONE, Appellant, v. G4S YOUTH SERVICES, LLC; Todd Speight, Appellees.
No. 11-2901.
United States Court of Appeals, Eighth Circuit.
July 30, 2012.
Rehearing and Rehearing En Banc Denied Sept. 6, 2012.
The judgment of the Bankruptcy Appellate Panel is affirmed.
Khayyam M. Eddings, argued, Sherri L. Robinson, AG, on the brief, Little Rock, AR, for appellees.
Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
GRUENDER, Circuit Judge.
Toni Bone appeals the district court‘s1 grant of summary judgment in favor of her employer, G4S Youth Services, LLC (“G4S“), and her supervisor, Todd Speight, on Bone‘s claims that they terminated her employment based on her race, age, and use of family medical leave. For the reasons that follow, we affirm.
I. BACKGROUND
G4S began operating the Alexander Juvenile Assessment and Treatment Center (“AJATC“), a youth detention center, in January 2007 under a contract with the Arkansas Department of Human Services Division of Youth Services (“DYS“). G4S hired Toni Bone in March 2007 as the education director at AJATC. Before she was hired, Bone was interviewed by G4S‘s chief executive officer, Kerry Knott, G4S‘s head of education, Jerry Neely, and G4S‘s facility director for AJATC, Todd Speight. Bone, like Knott and Neely, is Caucasian and was older than forty when she was hired. Before coming to G4S, Bone was the special education supervisor at DYS. In that position, she oversaw special education at six of the eleven juvenile detention facilities in Arkansas, including AJATC. One of her responsibilities at DYS was to oversee compliance with a Corrective Action Plan (“CAP“) created pursuant to a settlement agreement between DYS and the United States Department of Justice. Once at G4S, Bone worked under Neely to set up an education program at AJATC that complied with the CAP, but she also reported directly to Speight.
It is undisputed that Bone was a valued employee for the first seven months of her employment with G4S. She had a positive working relationship with both Neely and Speight. In October 2007, Bone received a positive performance review from Speight, obtaining a rating of 3.7 out of 4. AJATC achieved several educational goals during this time, and Bone received praise from G4S and DYS for the progress. During this time, no one from DYS came to AJATC to oversee or monitor the special education program at AJATC. In November 2007, DYS hired Valecia Pumphrey as its education director and Mary Steele as Bone‘s successor as special education supervisor. Like Bone before her, Steele was charged with overseeing compliance with the CAP. Soon thereafter, Steele began to visit AJATC and monitor Bone‘s progress with the special education program. Bone previously had been Steele‘s supervisor when they both worked in the Little Rock School District. Pumphrey and Steele quickly experienced problems communicating with Bone.
According to Pumphrey and Steele, Bone told them in regulatory meetings in November 2007, December 2007, and January 2008 that all teachers at AJATC had received “due process training” in August 2007 as required by the CAP. Steele relayed this information to state officials at the Arkansas Department of Education (“ADE“). These officials requested documentation to confirm the training, and Bone promised to provide it to Steele. After Bone failed to provide the documen
Shortly thereafter, G4S created a new special education supervisor position separate from that of education director. Speight asked Bone whether she wanted to continue as education director or as special education supervisor. Bone chose the special education supervisor position because that was her area of expertise. The change became effective on February 3, 2008. Although Bone was no longer responsible for the entire educational program at AJATC, her salary remained the same. G4S hired Dr. William Thomas, a seventy-three-year-old African-American man, to fill the education director position. Dr. Thomas had twenty-five years of experience as a school superintendent and received a higher salary than Bone.
In March 2008, Bone underwent shoulder surgery while on paid leave for spring break. She took additional paid leave the following week to recover. According to Bone, Speight was wonderful to her regarding the surgery, he gave her advice based on his experience with the same surgery, and G4S even sent her flowers. Bone‘s doctor cleared her to return to work on April 1, 2008 with the restriction that she could not use her right arm. Bone emailed Speight to inform him that she could not be hit or bumped in the shoulder. One day after she returned to work, G4S required Bone to substitute temporarily for an absent teacher.
Steele at DYS continued to have problems with Bone after Bone‘s responsibilities were limited to special education. Steele testified that Bone repeatedly refused Steele‘s requests and resisted making any changes. On April 10, 2008, ADE officials informed Steele that the parental rights of the mother of an AJATC student had been terminated. Steele instructed Bone to appoint a surrogate parent for the student. Bone responded that she could not comply without a copy of the court‘s parental-rights termination order. Steele instructed Bone not to hold a special education conference for the student until Steele could obtain a copy of the termination order and appoint a surrogate parent. Three days later with no surrogate parent appointed, Bone conducted a special education conference for the student despite Steele‘s instructions. Steele reported her concerns about Bone to G4S. On May 7, 2008, Knott met with Bone and Speight. Knott gave Bone the option to resign in lieu of her employment being terminated. Bone signed a letter of resignation that day. G4S hired Misty Hunt, a forty-two-year-old Caucasian woman, to replace Bone.
Bone filed a complaint in September 2008 with the Equal Employment Opportunity Commission (“EEOC“) and later received a right-to-sue letter. In August 2009, Bone brought this lawsuit against G4S, Speight, Steele, Pumphrey, and DYS.
II. DISCUSSION
Bone contends that the district court erred in granting summary judgment because she provided direct evidence of race and age discrimination and, alternatively, demonstrated that G4S‘s legitimate, non-discriminatory reason for terminating her employment was merely a pretext for intentional discrimination on the basis of race and age. She also contends that the district court erroneously granted summary judgment on her FMLA claims. We review the district court‘s grant of summary judgment de novo. Taylor v. St. Louis Cnty. Bd. of Election Comm‘rs, 625 F.3d 1025, 1026 (8th Cir. 2010) (per curiam). “Summary judgment is appropriate where, viewing the record in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Id. “There is no ‘discrimination case exception’ to the application of summary judgment....” Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc).
Bone can survive summary judgment on her race and age discrimination claims either by providing direct evidence of discrimination or by creating an inference of unlawful discrimination through the McDonnell Douglas2 analysis. See Gibson v. Am. Greetings Corp., 670 F.3d 844, 855 (8th Cir. 2012) (“Similar to claims of race discrimination, when a plaintiff ‘has no direct evidence of [age] discrimination, his claims are analyzed under the familiar burden-shifting scheme of McDonnell Douglas Corp. ....‘” (quoting Haigh v. Gelita USA, Inc., 632 F.3d 464, 468 (8th Cir. 2011))). “We also note that we analyze [Bone‘s] Title VII and Arkansas Civil Rights Act claims under the same standards.” Id. at 853.
A. Direct Evidence of Age and Race Discrimination
We have previously said that “[d]irect evidence in this context is not the converse of circumstantial evidence [but] is evidence ‘showing a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated’ the adverse employment action.” Torgerson, 643 F.3d at 1044 (quoting Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004)). Such evidence must be “strong” and must “clearly point[] to the presence of an illegal motive” for the adverse action. Griffith, 387 F.3d at 736.
Contrary to Bone‘s arguments, Speight‘s reaction and Knott‘s lack of reaction to Pumphrey‘s comments are not direct evidence of a discriminatory motive for firing Bone. Knott and Speight merely failed to respond when a representative of their facility‘s sole client made inappropriate “stray remarks in the workplace” that were “unrelated to the decisional process” of terminating Bone‘s employment. See Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 449 (8th Cir. 1993) (quoting Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991)). Furthermore, Pumphrey‘s comments were made six months before G4S decided to discharge Bone. The gap in time and lack of connection between Pumphrey‘s comments regarding recruiting and G4S‘s decision to discharge Bone negate Bone‘s arguments that Speight‘s and Knott‘s reactions constitute direct evidence of G4S‘s discriminatory motive for her discharge. See Ramlet v. E.F. Johnson, 507 F.3d 1149, 1153 (8th Cir. 2007) (holding that comments made more than four months prior to the adverse employment action were not connected to the decision-making process and, therefore, were not direct evidence of discrimination). Thus, to succeed on her race and age discrimination claims, Bone must create an inference of unlawful discrimination through the McDonnell Douglas framework. Torgerson, 643 F.3d at 1044.
B. Pretext for Age and Race Discrimination
Assuming, without deciding, that Bone presented a prima facie case of race and age discrimination, see Elam v. Regions Fin. Corp., 601 F.3d 873, 879 (8th Cir. 2010), G4S had the burden to articulate a “non-discriminatory, legitimate justification for its conduct, which rebuts the employee‘s prima facie case.” Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 850 (8th Cir. 2005) (quoting Sprenger v. Fed. Home Loan Bank of Des Moines, 253 F.3d 1106, 1111 (8th Cir. 2001)). This burden is not onerous, id. at 853, and G4S satisfied it by stating that it discharged Bone for failing to follow Steele‘s directive not to hold the special education conference without appointing a surrogate parent, miscommunicating with Steele and Pumphrey regarding the teacher training, losing the trust of DYS employees as a result, and refusing in general to make changes to accommodate the requests of DYS employees.
Bone contends that G4S failed to articulate a legitimate reason for terminating
Because G4S articulated a legitimate, non-discriminatory justification for discharging Bone, “the presumption of discrimination disappears, requiring the plaintiff to prove that the proffered justification is merely a pretext for discrimination.” Pope v. ESA Servs., Inc., 406 F.3d 1001, 1007 (8th Cir. 2005). The plaintiff has the burden of persuasion at all times. Id. Bone‘s burden to show a genuine issue of material fact regarding pretext “merges with the ultimate burden of persuading the court that [she was] the victim of intentional discrimination.” Torgerson, 643 F.3d at 1046 (quoting Tex. Dep‘t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)); see also St. Mary‘s Honor Ctr. v. Hicks, 509 U.S. 502, 515-16 (1993) (“[A] reason cannot be proved to be ‘a pretext for discrimination’ unless it is shown both that the reason was false, and that discrimination was the real reason.“); Rothmeier v. Inv. Advisers, Inc., 85 F.3d 1328, 1336-37 (8th Cir. 1996) (noting that a plaintiff in an ADEA suit must both (1) create a fact issue as to whether the employer‘s reasons for the discharge are pretextual and (2) create a reasonable inference that the plaintiff‘s age was a determinative factor in the discharge). “Proof of pretext, coupled with a strong prima facie case, may suffice to create a triable question of fact” as to whether the termination was motivated by intentional discrimination. Torgerson, 643 F.3d at 1046. Bone contends that she established pretext and created a reasonable inference that her discharge was motivated by intentional discrimination because she identified nineteen young, African-American employees whom G4S allegedly treated more favorably than her in disciplinary matters, G4S‘s explanation for her termination shifted over time, and she identified other incidents of racial discrimination. We address each argument in turn.
1. Comparators
Bone provided evidence that G4S subjected nineteen youth care workers to “progressive discipline” and contends that, although similarly situated to the youth care workers, she was not treated similarly to them because of her age and race. G4S cited the youth care workers for disciplinary problems ranging from minor violations, such as dress code and attendance problems, to critical violations, such as
At the pretext stage, “the test for determining whether employees are similarly situated to a plaintiff is a rigorous one.” Rodgers, 417 F.3d at 853. Bone must show that she and the employees outside of her protected group were “similarly situated in all relevant respects.” Id. “[T]he individuals used for comparison must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.” Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000). Furthermore, “[t]o be probative evidence of pretext, the misconduct of more leniently disciplined employees must be of comparable seriousness.” Rodgers, 417 F.3d at 853 (quoting Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972-73 (8th Cir. 1994)) (internal quotation marks omitted).
The nineteen youth care workers are not valid comparators because they had different immediate supervisors from Bone and did not engage in the same conduct as Bone. Although Speight as facility director ultimately approved their terminations, he was not the direct supervisor for the youth care workers. Various supervisors handled their progressive discipline and ultimately recommended their dismissals; Speight merely approved the recommendations. In contrast, Speight was Bone‘s direct supervisor and conducted her performance review. Moreover, Knott, not Speight, made the actual decision to discharge Bone. Unlike the youth care workers, who were relatively junior employees, Bone was an administrator who worked directly with Speight and Knott, and the decision to terminate her employment was not merely ratified by upper management, but was made by Knott, the chief executive officer, in the first instance. Furthermore, Bone did not engage in the same conduct as the comparators “without any mitigating” differences. Clark, 218 F.3d at 918. Unlike any of the youth care workers, only Bone was accused of resisting the directives of employees at DYS, AJATC‘s sole client. Bone‘s resistance to DYS directives and outright refusal to comply with Steele‘s request regarding the special education conference is different in kind from the youth care workers’ various disciplinary violations. In short, Bone has failed to establish that the youth care workers are similar to her in “all relevant respects.” See Rodgers, 417 F.3d at 853.3
Bone also contends that Speight and another employee, Dr. Darrin Kirkendall, were not disciplined at all for a disciplinary violation that was even more serious than her violation, releasing without proper notice a youth who allegedly committed a murder shortly after being released from AJATC. However, Bone has introduced no evidence that G4S believed Speight and Dr. Kirkendall committed the alleged disciplinary violation. See Johnson, 424 F.3d at 811 (“Johnson identifies no evidence that Ready Mixed believed that [the comparators] violated any duty to the company ... or that management considered their conduct to be dishonest.“). Moreover, even if Speight‘s and Dr. Kirkendall‘s alleged violation involved the same conduct and was of comparable seriousness to Bone‘s violations, G4S‘s alleged leniency in favor of Speight and Dr. Kirkendall does not support an inference of race or age bias or demonstrate that G4S‘s reason for discharging Bone was a pretext for such bias. Dr. Kirkendall is a Caucasian man who is older than forty and is thus a member of both of Bone‘s protected classes for her race and age discrimination claims, while Speight, though not Caucasian, is also older than forty. The fact that Dr. Kirkendall, a member of both of Bone‘s protected classes, was treated more leniently than Bone casts doubt on Bone‘s suggestion that the alleged lenience for either comparator is evidence of pretext or prohibited bias. See Hitt, 356 F.3d at 925 (noting that “one of the two employees who received this alleged leniency was aged 51, and thus a member of the protected class under the ADEA“). We reject Bone‘s argument that Speight and Dr. Kirkendall are adequate comparators.
Finally, Bone contends that her successors as education director and as special education supervisor are less qualified than she and that this difference in qualifications demonstrates pretext. However, Hunt is a Caucasian woman over the age
2. Shifting Explanations
Bone contends that G4S gave conflicting accounts of why she was discharged and that this shift in explanations is evidence that G4S‘s reasons for terminating her employment are merely a pretext for intentional discrimination on the basis of age and race. Specifically, she contends that G4S told DYS employees that Bone‘s employment had been terminated but told EEOC officials that Bone had quit. She also points out that Speight testified that he had no plan to fire Bone before their meeting on May 7 and that Knott stated at one point that he did not know why she quit. She contends that Knott changed his story when he said that he fired her because of problems with “performance and client relations.” G4S‘s description of Bone‘s separation does not, however, establish pretext.
A change in an employer‘s legitimate, nondiscriminatory reason for firing an employee is probative of pretext only if the discrepancy is “substantial.” See Twiggs v. Selig, 679 F.3d 990, 994 (8th Cir. 2012). The district court correctly concluded that Bone‘s allegations of shifting explanations amounted to “nothing
3. Other Instances of Discrimination
Finally, Bone argues that she provided evidence of other instances of discrimination that demonstrates that G4S‘s proffered reason for terminating her employment was merely a pretext for race and age discrimination. First, she contends that Norma Wynn, an African-American dorm supervisor, ordered Bone to clean a restroom. However, the record indicates that cleaning restrooms is part of the responsibility of educational staff. There is no evidence that Wynn‘s order was motivated by racial animus. Second, Bone contends that Dr. Thomas received a higher salary than she as education director. However, G4S explained that Dr. Thomas received a higher salary because of Dr. Thomas‘s more extensive experience as a school superintendent. Neither Dr. Thomas‘s salary nor Bone‘s sanitation assignment support Bone‘s contention that G4S‘s rationale for terminating Bone‘s employment was merely a pretext for race or age discrimination.
Because Bone did not create a genuine issue of material fact as to whether G4S‘s legitimate, non-discriminatory reason for terminating her employment was merely a pretext for intentional race or age discrimination, the district court did not err in granting summary judgment in favor of G4S and Todd Speight on Bone‘s race and age discrimination claims.
C. FMLA
As relevant here, FMLA provides an eligible employee with twelve work-weeks of unpaid leave during any twelve-month period if she has “a serious health condition that makes [her] unable to perform the functions of [her] position.”
Bone‘s interference claim fails because Bone was allowed to take leave for her surgery and to return to the same position she had before she left. As a threshold matter, the record reveals that G4S posted a notice of employee FMLA rights in the workplace and provided a notice in the employee handbook, which Bone indisputably received on March 3, 2007. Furthermore, Bone actually took leave for her surgery and recovery. Moreover, Bone concedes that she began her new position as special education supervisor in February 2008, a month before her surgery. This was the same position to which she returned after her leave. Bone contends that the post-leave position was not equivalent to her pre-leave position because G4S forced her to substitute temporarily for an absent teacher, arguing that teaching classes is not part of her duties as an administrator. She also argues that forcing her to substitute as a teacher interfered with her FMLA rights because such work was inconsistent with the medical restrictions on her return to work. However, Bone provides no evidence that substituting for an absent teacher is not a part of the duty of a school administrator. Furthermore, Bone did not submit any evidence that her medical condition prevented her from teaching or that she communicated such a restriction to G4S. Upon returning to work, Bone informed G4S that her shoulder should not be hit or bumped and provided G4S with a doctor‘s note indicating that she could not use her arm, but the note did not state that Bone could not teach classes or that her availability for work was otherwise restricted. Although G4S was aware that some AJATC students are “dangerous,” there is no indication in the record that Bone ever communicated to G4S that temporarily teaching this particular class would be expected to lead to physical impacts or otherwise violate the medical condition of her return to work. Thus, Bone has failed to raise a genuine issue of fact as to whether G4S failed to provide her with notice of her FMLA rights, prevented her from taking leave, failed to reinstate her to an equivalent position upon her return from leave, or otherwise interfered with her FMLA rights.
Bone has also failed to raise a genuine issue of fact as to whether G4S retaliated against her for exercising her FMLA rights. Bone contends that the proximity in time between when she took leave and when G4S terminated her employment is sufficient to establish that the termination was retaliatory. However, even Bone testified that G4S was “wonderful” to her regarding her surgery. Moreover, as we concluded above, G4S provided a legitimate, non-discriminatory reason for Bone‘s termination that was unrelated to her leave. The fact that Bone recently had taken FMLA leave does not insulate her from “termination for reasons unrelated to the FMLA.” Estrada, 616 F.3d at 871. Thus, the district court did not err in granting summary judgment on Bone‘s FMLA claims.
III. CONCLUSION
For the foregoing reasons, we affirm.