DAVID GRIFFITH, PLAINTIFF—APPELLANT v. CITY OF DES MOINES, DEFENDANTS—APPELLEES

387 F.3d 733, 2004 WL 2310504

• Court: Court of Appeals for the Eighth Circuit
• Decided: December 17, 2004
• Docket: 03-3266
• Status: Published

Opinions

LOKEN, Chief Judge.

David Griffith, who is Hispanic, joined the Des Moines Fire Department in 1989. He commenced this action in August 2001, alleging on-going disparate treatment and retaliation by the City of Des Moines, Fire Chief Ronald Wakeham, and Assistant Fire Chief Jerry Cohoon in violation of Title VII, 42 U.S.C. § 2000e-2; 42 U.S.C. §§ 1981 and 1983; and the Iowa Human Rights Act, Iowa Code § 216.6. The district court¹ granted summary judgment dismissing Griffith’s Third Amended Complaint. Griffith appeals. Reviewing the grant of summary judgment de novo, and viewing the summary judgment record in the light most favorable to Griffith, the nonmoving party, we affirm. See Putman v. Unity Health Sys., 348 F.3d 732, 733 (8th Cir.2003) (standard of review).

I. A Threshold Issue of Law.

Title VII and the Iowa Human Rights Act prohibit an employer from discriminating against an employee with respect to his compensation, terms, or conditions of employment on account of his race, color, religion, sex, or national origin. Griffith complains that he was suspended and then denied retraining, unfairly disciplined, and harassed by co-workers because of his Hispanic background.

Griffith urges us to conclude, as some district courts have concluded, that the Supreme Court in Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, - 156 L.Ed.2d 84 (2003), implicitly directed us to modify our Circuit’s use of the familiar framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), at the summary judgment stage of an employment discrimination lawsuit. Griffith’s brief does not explain how our summary judgment analysis must be modified. But he relies on Dunbar v. Pepsi-Cola General Bottlers of Iotva, Inc., 285 F.Supp.2d 1180, 1197 (N.D.Iowa 2003), where the court concluded that, at the summary judgment stage, the third step in the McDonnell Douglas analysis must be modified “so that it is framed in terms of whether the plaintiff can meet his or her ‘ultimate burden’ to prove intentional discrimination, rather than in terms of whether the plaintiff can prove ‘pretext.’ ” We do not agree that Desert Palace affected controlling Eighth Circuit precedents in this fashion.

Desert Palace involved the post-trial issue of when the trial court should give a “mixed motive” jury instruction under 1991 Title VII amendments codified at 42 U.S.C. §§ 2000e-2(m) and 2000e-5(g)(2)(B). The Court’s opinion did not even cite McDonnell Douglas, much less discuss how those statutes impact our pri- or summary judgment decisions. While in general the standard for granting summary judgment “mirrors” the standard for judgment as a matter of law, Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), the contexts of the two inquiries are significantly different. At the summary judgment stage, the issue is whether the plaintiff has sufficient evidence that unlawful discrimination was a motivating, factor in the defendant’s adverse employment action. If so, the presence of additional legitimate motives will not entitle the defendant to summary judgment. Therefore, evidence of additional motives, and the question whether the presence of mixed motives defeats all or some part of plaintiffs claim, are trial issues, not summary judgment issues. Thus, Desert Palace, a decision in which the Supreme Court .decided only a mixed motive jury instruction issue, is an inherently unreliable basis for district courts to begin ignoring this Circuit’s controlling summary judgment precedents. For concrete evidence confirming that Desert Palace did not forecast a sea change in the Court’s thinking, we need look no further than Raytheon Co. v. Hernandez, 540 U.S. 44, 124 S.Ct. 513, 517-18 & n. 3, 157 L.Ed.2d 357 (2003), a post-Desert Palace decision in which the Court approved use of the McDonnell Douglas analysis at the summary judgment stage.

McDonnell Douglas and most subsequent cases in which the Supreme Court has applied McDonnell Douglas came to the Court on a trial record, not a summary judgment record. Prior to Desert Palace, in two recent cases involving the sufficiency of the plaintiffs evidence at trial, the Court held that a finding of pretext does not compel judgment for the plaintiff, St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), but conversely, that the plaintiffs prima facie case combined with sufficient evidence of pretext may permit the jury to find unlawful discrimination, Reeves, 530 U.S. at 148, 120 S.Ct. 2097. Hicks and Reeves are far more pertinent to our summary judgment analysis than Desert Palace, particularly because the Court reiterated the principle that the McDonnell Douglas burden-shifting analysis is not the only way for a plaintiff to prove unlawful discrimination: “Proof that the defendant’s explanation is unworthy of credence [i.e., pretextual] is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive.” Reeves, 530 U.S. at 147, 120 S.Ct. 2097.

We have long recognized and followed this principle in applying McDonnell Douglas by holding that a plaintiff may survive the defendant’s motion for summary judgment in one of two ways. The first is by proof of “direct evidence” of discrimination. Direct evidence in this context is not the converse of circumstantial evidence, as many seem to assume. Rather, direct evidence 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. Thomas v. First Nat’l Bank of Wynne, 111 F.3d 64, 66 (8th Cir. 1997). Thus, “direct” refers to the causal strength of the proof, not whether it is “circumstantial” evidence. A plaintiff with strong (direct) evidence that illegal discrimination motivated the employer’s adverse action does not need the three-part McDonnell Douglas analysis to get to the jury, regardless of whether his strong evidence is circumstantial. But if the plaintiff lacks evidence that clearly points to the presence of an illegal motive, he must avoid summary judgment by creating the requisite inference of unlawful discrimination through the McDonnell Douglas analysis, including sufficient evidence of pretext. See, e.g., Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 971 (8th Cir. 1994). This formulation is entirely consistent with Desert Palace. Thus, we conclude that Desert Palace had no impact on prior Eighth Circuit summary judgment decisions.²

In this case, Griffith has produced no strong (direct) evidence that racial or ethnic discrimination motivated any alleged adverse employment action against him. While he presented co-worker testimony that Chief Wakeham made insensitive remarks about African American and women employees on other occasions, Griffith presented no evidence that Chief Wakeham, Assistant Chief Cohoon, or any other City decisionmaker ever uttered a single negative racial remark about Griffith’s Hispanic background. Thus, the requisite causal link between remarks reflecting racial or gender bias and actions taken against Griffith is lacking. See Simmons v. Oce-USA Inc., 174 F.3d 913, 915-16 (8th Cir.1999). In these circumstances, Griffith must produce sufficient circumstantial evidence of illegal discrimination under the McDonnell Douglas paradigm — by presenting a prima facie case of intentional discrimination plus sufficient evidence that one or more of the City’s proffered nondiscriminatory reasons is a pretext for unlawful discrimination.

II. The Merits.

On appeal, Griffith surrounds his specific allegations with a broad ranging attack on work conditions and employee relations in the Des Moines Fire Department. We will ignore this polemic and limit our discussion to Griffith’s specific claims, stating the relevant fact's as pertinent to each.

1. Discriminatory Leave of Absence. In December 1999, Griffith was charged with three counts of third degree sexual abuse, including one charge of abusing a minor. On the day the Des Moines Register published a story headlined, “Fireman Charged For Alleged Abuse,” Griffith through his attorney requested an unpaid leave of absence from the Fire Department, which Chief Wakeham granted. In May 2000, Griffith pleaded guilty to lesser offenses. He was given a suspended sentence and probation on conditions that included avoiding contact with the victim. The City then allowed Griffith to return to work. On appeal, he argues that he was the victim of disparate treatment because the City did not take action for nine months when a white firefighter was charged with sex abuse in 1998. This contention is without merit. It is uncontested that Griffith requested the leave of absence.

2. Failure To Retrain upon Griffith’s Return. When Griffith returned to work in May 2000, he believed that his firefighting skills had deteriorated during his leave of absence. He declined one or more emergency assignments, asked for additional retraining, and claims the City unlawfully discriminated in refusing his request. On appeal, Griffith argues that summary judgment was improper on this claim because training is a necessary component of his job and there is a dispute whether adequate training was provided. This contention, too, is without merit. An employer’s denial of an employee’s request for more training is not, without more, an adverse employment action. See Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839, 845 (8th Cir.2002). Nor does the record permit a reasonable inference that Griffith’s race was a factor in this training dispute.

3. Three Disciplinary Incidents. Griffith was disciplined three times between August 2000 and January ,2002 and claims unlawful discrimination and retaliation in each instance. First, in August 2000, Chief Wakeham informed Griffith that a pre-disciplinary hearing‘had been-scheduled because of Griffith’s “abusive and argumentative” behavior in a heated exchange with Assistant Chief Cohoon over Griffith’s alleged lack of training. The next day, Griffith told the Iowa Civil Rights Commission that he was the victim of discrimination and retaliation on account of his Hispanic background. The pre-dis-ciplinary hearing took place two weeks later. Griffith received an oral reprimand, a referral to the Employee Assistance Program (EAP) for evaluation and consultation, and additional' firefighter training that he later admitted was adequate to restore his emergency firefighting skills.

On appeal, Griffith argues that a jury could find “disparate and-discriminatory” treatment because a white firefighter received the same discipline — a reprimand- and referral .to EAP — for more serious insubordination. The district court granted summary judgment because it is undisputed- that Griffith exhibited anger and disrespect to a supervisor and there is no evidence that Wakeham acted from racial animus in imposing the discipline. After careful review of the record, we agree.

Second, in late July 2001, Des Moines arson investigators were about to interview a minor at a fire scene. Griffith asked another firefighter within the hearing of the minor’s parents whether “we were allowed to question minors without a parent ... because if it was my kid, I would want somebody there.” The parents then interrupted the interview, and the arson investigators complained to Chief Wakeham. On August 16, Wakeham wrote Griffith advising him of a pre-disci-plinary hearing regarding “possible interference with an official fire investigation.” Six days later, Griffith filed this suit. After an August 24 pre-disciplinary hearing, Chief Wakeham issued a written reprimand and suspended Griffith without pay for one 24-hour duty shift for “conduct that disrupted an investigation of a fire of unknown origin.” On appeal, Griffith argues that summary judgment is improper because whether he interfered with a fire investigation is a disputed issue of fact. The district court concluded there was no evidence that Wakeham did not believe Griffith was guilty of misconduct. Again, we agree.

Third, on October 2, 2001, Griffith failed to sign an equipment checklist. When asked to sign, Griffith stated, “I would sign the sheet if I am required to do so, but if I am not required to do so, I would prefer to not sign the sheet.” The Department scheduled a pre-disciplinary hearing that day. Two days later, Griffith complained to the City’s EEO Officer that he “perceived [the incident] as discrimination and harassment.” On October 23, Chief Wake-ham suspended Griffith without pay for forty-eight hours for violating Fire Department policy. Griffith argues that summary judgment was improper because whether he was ordered to sign the checklist is a disputed issue of fact. Again, the district court concluded there was no evidence creating an inference that this discipline was the product of race discrimination. We agree.

Griffith further argues that the district court erred in granting summary judgment on his claims that each of these disciplines was illegal retaliation for the discrimination complaint he filed with the Iowa Civil Rights Commission, for the filing of this lawsuit, and for his letters to Chief Wakeham and to the City’s Equal Employment Opportunity Officer complaining of discrimination. To establish a prima facie case of retaliation under 42 U.S.C. § 2000e-3, Griffith must show that “he engaged in protected conduct, that he suffered an adverse employment action, and that the adverse action was causally linked to the protected conduct.” Put-man, 348 F.3d at 737. Griffith argues that the temporal proximity between his complaints of discrimination and the disciplines is sufficient circumstantial evidence of retaliation. The district court disagreed, and so do we.

“Generally, more than a temporal connection between the protected conduct and the adverse employment action is required to present a genuine factual issue on retaliation.” Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir.) (en banc), cert. denied, 528 U.S. 818, 120 S.Ct. 59, 145 L.Ed.2d 51 (1999). In this case, Griffith lodged complaints of discrimination days after receiving notices of the predisciplinary hearings that led to the three disciplines. His post-hoc complaints did not without more raise a retaliation bar to the proposed discipline because “the anti-discrimination statutes do not insulate an employee from discipline for violating the employer’s rules or disrupting the workplace.” Kiel, 169 F.3d at 1136. Indeed, complaining of discrimination in response to a charge of workplace misconduct is an abuse of the anti-retaliation remedy. In these circumstances, we agree with the district court that the temporal proximity between Griffith’s complaints and the subsequent adverse decisions “is insufficient to allow an inference of a retaliatory motive.”

4. The Hostile Work Environment Claim. Griffith argued in the district court and on appeal that negative coworker comments about his Hispanic background subjected him to a hostile work environment. Griffith testified to three scattered derogatory comments by two coworkers. The comments were not directed to Griffith, and one co-worker apologized when Griffith overheard one remark. Griffith did not complain to his superiors about any of these comments. Another firefighter testified that co-workers mocked Griffith during his leave of absence and, in discussing the sexual abuse charges, said “he’s getting what he deserves, and it’s his own fault” and called him a “stupid Mexican.” In addition to these incidents, Griffith alleges more generally that the Fire Department is a “racially tense environment” in which “racial comments and racially derogatory names” are frequent. The district court concluded that Griffith failed to show harassment pervasive or severe enough to affect a term, condition, or privilege of his employment. See, e.g., Woodland, 302 F.3d at 843. We agree. The record contains evidence that Griffith suffers from depression in large part because he perceives that his co-workers ridiculed and ostracized him as a “child molester.” That is unfortunate, but discrimination on this ground is not prohibited by Title VII or by the Iowa Civil Rights Act.

Griffith asserted other claims in the district court but has not briefed them on appeal. We therefore deem those issues abandoned. See Hays v. Hoffman, 325 F.3d 982, 986 n. 2 (8th Cir.), cert. denied, 540 U.S. 877, 124 S.Ct. 277, 157 L.Ed.2d 139 (2003). The judgment of the district court is affirmed.

1 . The HONORABLE RONALD E. LONG-STAFF, Chief Judge of the United States District Court for the Southern District of Iowa.

2 . Desert Palace held that, under the 1991 amendments, if the plaintiff presents sufficient evidence of intentional discrimination solely by reason of pretext or other circumstantial evidence, and if the defendant presents sufficient evidence that it would have taken the same adverse action in any event, either party is entitled to a mixed-motive jury instruction. In this regard, the amendments overruled Justice O’Connor’s view in Price Waterhouse that a plaintiff must have "direct evidence” of a discriminatory motive to shift the burden of proof. 123 S.Ct. at 2155. The Court’s resolution of that issue meant, "we need not address the second question on which we granted certiorari: 'What are the appropriate standards for lower courts to follow in making a direct evidence determination in 'mixed-motive' cases.' " 123 S.Ct. at 2155 n. 3. Had the Court addressed that second question, its answer might have affected our cases defining direct evidence for summary judgment purposes.