J. LEON HOLMES, District Judge.
Kristy Green, a black female, was the Chief of Police for the City of Hughes, Arkansas. Grady Collum, a white male, was the mayor. Collum demoted, then terminated
A court should grant summary judgment if the evidence demonstrates that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine dispute for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). If the moving party meets that burden, the nonmoving party must come forward with specific facts that establish a genuine dispute of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). A genuine dispute of material fact exists only if the evidence is sufficient to allow a reasonable jury to return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). The Court must view the evidence in the light most favorable to the nonmoving party and must give that party the benefit of all reasonable inferences that can be drawn from the record. Pedersen v. Bio-Med. Applications of Minn., 775 F.3d 1049, 1053 (8th Cir. 2015). If the nonmoving party fails to present evidence sufficient to establish an essential element of a claim on which that party bears the burden of proof, then the moving party is entitled to judgment as a matter of law. Id.
The following facts are undisputed. Green started working for the Hughes Police Department as a part-time patrol officer in February 2013. She was working full-time as a patrol officer by May 2013. Green was promoted to assistant police chief on November 26. She accepted the position of interim police chief on June 2, 2014. Green graduated from the police academy on December 2 and became the police chief on December 17. The parties agree that Green's responsibilities as chief included patrolling the streets of Hughes, writing reports and citations, appearing in court, making arrests, supervising officers, scheduling and covering shifts as needed, handling employee and citizen complaints, performing disciplinary actions, maintaining personnel files, helping the mayor make personnel decisions, familiarizing herself with the court, and developing a relationship with the county sheriff's department.
Collum was elected mayor and took office on January 1, 2015. Collum is a medical doctor. Prior to his becoming mayor, the only direct interaction Collum had with Green was in the patient-doctor context. Once Collum became mayor, he met with Green on occasion to give her certain directives about the scheduling of shifts, the care of equipment, the hiring of certified personnel, the importance of being courteous and reasonable when dealing with citizens, and the avoidance of situations requiring the use of firearms. In early 2016, Collum ran an advertisement in two local publications, advertising that Hughes was accepting applications for police chief through February 20. On February 25, Collum wrote Green a letter to inform her that the Hughes Police Department was to be disbanded, effectively eliminating the position of police chief. Green continued working and the county sheriff provided her a schedule, which changed her work hours. Green was terminated
Courts have held that the Equal Protection Clause of the Fourteenth Amendment confers on an individual a right to be free of race and sex discrimination in public employment. Henley v. Brown, 686 F.3d 634, 642 (8th Cir. 2012); Tipler v. Douglas Cnty. Neb., 482 F.3d 1023, 1027 (8th Cir. 2007). Such a claim may be asserted under 42 U.S.C. § 1983. Brown, 686 F.3d at 642-43. The Eighth Circuit "has held that a § 1983 claim based on alleged violation of equal protection in the employment context is analyzed in the same way as a Title VII claim of sex, race, or religious discrimination." Mummelthie v. City of Mason City, Ia., 873 F.Supp. 1293, 1333 (N.D. Iowa 1995) aff'd 78 F.3d 589 (8th Cir. 1996). Likewise, the elements of a Title VII employment discrimination claim and a section 1981 claim in the employment context are identical inasmuch as section 1981 prohibits discrimination in the making and enforcement of private contracts. See Gregory v. Dillard's, Inc., 565 F.3d 464, 469 (8th Cir. 2009); Kim v. Nash Finch Co., 123 F.3d 1046, 1056, 1060 (8th Cir.1997). Therefore, to avoid summary judgment on her employment discrimination claims, Green must either produce direct evidence of discrimination or generate a genuine dispute of material fact for trial under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L. Ed. 2d 668 (1973). Floyd-Gimon v. Univ. of Ark. for Med. Sci., 716 F.3d 1141, 1149 (8th Cir. 2013).
Green argues that she has submitted direct evidence of race and sex discrimination. "Direct evidence is evidence that establishes `a specific link between the discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the employer's decision.'" Twymon v. Wells Fargo & Co., 462 F.3d 925, 933 (8th Cir. 2006) (quoting Putman v. Unity Health Sys., 348 F.3d 732, 735 (8th Cir. 2003)). "`[D]irect' refers to the casual strength of the proof, not whether it is `circumstantial' evidence." Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011). Direct evidence may include remarks by a decisionmaker, but does not include "stray remarks in the workplace, statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself." Doucette v. Morrison Cnty., Minn., 763 F.3d 978, 986 (8th Cir. 2014).
As direct evidence, Green first cites two comments
The "go back to the fields" comment is not race-neutral. Greens says Collum made the comment to her in the spring of 2015 during a conversation the two were having about sending an officer named Robert Thomas to the police academy. Collum directed Green to do what she wanted in regards to his continued employment but stated that Thomas was not going to the academy. Document #30-1 at 40. "Not all comments that may reflect a discriminatory attitude are sufficiently related to the adverse employment action in question" to permit the fact finder to infer that the discriminatory attitude was more likely than not a motivating factor in the employer's decision. Walton v. McDonnell Douglas Corp., 167 F.3d 423, 426 (8th Cir. 1999). See also Saulsberry v. St. Mary's Univ. of Minn., 318 F.3d 862, 867-68 (8th Cir. 2003) (stating that an "isolated, stray comment unrelated to the decisional process" is not direct evidence of discrimination, even if the comment is made by a decisionmaker). Collum's comment about Thomas is not connected to Green's termination; it is a stray comment, despite the fact that it was made by a decision-maker. Twymon, 462 F.3d at 934.
The "you people are interrupting my meeting" comment is race-neutral on its face, as well as in its context. See Twymon, 462 F.3d at 934 ("Facially race-neutral statements, without more, do not demonstrate racial animus on the part of the speaker."). In Doucette v. Morrison Cnty. Minn., the employee's supervisor commented in a staff meeting that older people should not be in law enforcement. 763 F.3d at 986. The supervisor's audience was composed solely of older women. Id. The Eighth Circuit held that the comment was gender-neutral, but that even if it was not, the employee failed to demonstrate that the remark, "while made by a decision-maker, was connected to the decisional process itself." Id. Collum made the comment during a meeting about the closure of Hughes High School, which is unrelated to Green's termination. Document #20-56 at 19.
As direct evidence, Green next cites two comments made by Collum and two courses of conduct, which she argues indicate his intent to discriminate against her based on sex: (1) when Collum took office in January 2015, he remarked to former officers Michael Bedford and Floyd Billups that he did not think that a woman should run the police department; (2) Collum said that he did not trust the women working for the City;
The first comment made by Collum is much closer because stating that a woman should not be in charge of the police department is clear evidence of a discriminatory attitude. According to Eighth Circuit precedent, however, the comment is not direct evidence because of the lapse in time between Collum's comments to Bedford and Billups in January 2015, and Green's termination in March 2016. See Ramlet v. E.F. Johnson Co., 507 F.3d 1142, 1152-53 (8th Cir. 2007) (explaining that a four-month lapse between comments reflective of prejudice and the plaintiff employee's termination undercut a finding of direct evidence of discrimination); Barkhoff v. Bossard N. America, 684 F.Supp.2d 1096, 1106 (N.D. Iowa 2010) (same but with a six-month lapse).
In Twymon v. Wells Fargo & Co., the plaintiff employee's supervisor referred to her as a "good black" and indicated that she should act like an "Uncle Tom." 462 F.3d at 931. The Eighth Circuit agreed with the employee that the statements were "racially offensive and misguided," but concluded that they were not "made during the decisional process accompanying [the employer's] termination of [the employee." Id. at 934. The court held that "they were stray comments, despite the fact that they were made by decisionmakers." Id. See also Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 449 (8th Cir. 1993) (stating that the employee must put on "evidence of conduct or statements by persons involved in the decision-making process that may be viewed as directly reflecting the alleged discriminatory attitude sufficient to permit the factfinder to infer that that attitude was more likely than not a motivating factor in the employer's decision.").
In contrast, in Morrow v. Zale Corp., the Eighth Circuit held that a genuine issue of material fact existed as to whether a supervisor had earlier told an employee that she should step down because she was "a female" and "a single mom," that it was a "man's world," and that she needed to "man up." 816 F.3d 1025, 1024 (8th Cir. 2016). The court explained: "Because we construe such comments, if made by a decision maker, as direct evidence of a discriminatory animus, we further conclude that under a mixed-motive analysis, [the employee] may be entitled to [some relief]." Id. Evidence before the court showed that some of the comments were made during a meeting that took place one month before the employee was terminated. Brief for Appellant, Morrow v. Zale Corp., 816 F.3d 1025 (8th Cir. 2016) (No. 15-2321), 2015 WL 5020687 at *8-9. The meeting was part of an investigation into the employee's on-the-job conduct. Id. Similarly, in Simmons v. New Public School Dist. No. Eight, the school district voted not to renew an administrator's contract after the district board's president stated to her fellow voting board members shortly before the vote that a woman could not handle the job of administrator. 251 F.3d 1210, 1215 (8th Cir. 2001) (abrogated on other grounds by Torgerson, 643 F.3d at 1058).
Here, Collum made his discriminatory remarks more than one year before he made the decision to terminate Green. Former Hughes police officers Bedford and Billups swore under oath that shortly after he took office in January 2015, Collum confided in them in separate one-on-one conversations at the gas pump outside the police station that he did not feel that it was a woman's place to run the police department. Document #32-7 at 2, ¶5; Document #32-8 at 5, ¶5. After making those remarks, Green worked under Collum as the police chief for more than a year. Green has failed to tie the remarks to the decision to terminate her employment. See Arraleh v. Cnty. of Ramsey, 461 F.3d 967, 976 (8th Cir. 2006) (finding that plaintiff failed to show link between decisionmaker's comment that black employees should "leave their blackness behind" and his not being hired). Had Collum made the remarks closer in time to Green's termination and in connection with his review of Green's performance, the remarks might show that Collum's discriminatory attitude was a motivating factor in his decision to terminate Green's employment and therefore might constitute direct evidence; but because the remarks are separated in time and in context from the adverse employment action at issue, according to Eighth Circuit precedent, they do not constitute direct evidence of unlawful discrimination. Rather, they are what the Eighth Circuit has dubbed "statements by decisionmakers unrelated to the decisional process." See Rivers-Frison v. Se. Mo. Cmty. Treatment Ctr., 133 F.3d 616, 619 (8th Cir. 1998).
Under McDonnell Douglas Corp. v. Green, Green must first present a prima facie case of intentional discrimination. 411 U.S. 792, 802-03, 93 S.Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973). The burden then shifts to the defendants to proffer a legitimate, nondiscriminatory reason for the action they took. Id. If the defendants meet that burden, which is "minimal," the burden shifts back to Green to show that the proffered nondiscriminatory reason is merely pretext for unlawful discrimination. Id. See also Cody v. Prairie Ethanol, LLC, 763 F.3d 992, 996 (8th Cir. 2014) (applying McDonnell Douglas burden-shifting framework).
To establish a prima facie case of race and sex discrimination based on alleged discriminatory discharge Green must show that (1) she is a member of a protected class; (2) that she met her employer's legitimate expectations; (3) that she suffered an adverse employment action, and (4) that the circumstances give rise to an inference of discrimination. Lake v. Yellow Transp., Inc., 596 F.3d 871, 874 (8th Cir. 2010). The defendants have conceded that Green is a member of a protected class and that she suffered an adverse employment action. Document #22 at 5. The issue is whether Green can show that she met her employer's legitimate expectations.
Green argues that an employee may either show that she met her employer's legitimate expectations or that she was otherwise qualified for the position. Document #30 at 10. Green says she was "otherwise qualified," but does not address whether she was meeting her employer's legitimate expectations. Id. "McDonnell Douglas makes plain that the facts in Title VII cases will vary, and that the prima facie proof required is `not necessarily applicable in every respect to differing factual situations.'" Miller v. Citizens Sec. Grp., Inc., 116 F.3d 343, 346 (8th Cir. 1997) (citing 411 U.S. at 802 n. 13, 93 S. Ct. at 1824 n. 13). Whether an employee is qualified is the proper question in Title VII discrimination cases arising from a failure to promote or failure to hire, but in every termination case the plaintiff already had been hired and thus, presumably, was qualified for the job. Therefore, in a termination case, "[t]o establish a prima facie case that she was suspended or terminated because of her race [or sex], [a plaintiff] must show that she met her employer's legitimate expectations." Robinson v. Am. Red Cross, 753 F.3d 749, 755 (8th Cir. 2014); see also Jones v. City of St. Louis, Mo., 825 F.3d 476, 480 (8th Cir. 2016); Cherry v. Ritenour Sch. Dist., 253 F.Supp.2d 1085, 1094 (E.D. Mo. 2003) (recognizing a split in Eighth Circuit cases but applying the more stringent "legitimate expectations" standard in cases alleging wrongful termination).
"The standard for assessing performance `is not that of the ideal employee, but rather what the employer could legitimately expect.'" Calder v. TCI Cablevision of Mo., Inc., 298 F.3d 723, 729 (8th Cir. 2012) (quoting Keathley v. Ameritech Corp., 187 F.3d 915, 920 (8th Cir. 1999)). See also Miner v. Bi-State Dev. Agency, 943 F.2d 912, 913-14 (8th Cir. 1991). Green must do more than insist that she was a good employee, or that others thought she was a good employee. See Cherry, 253 F. Supp. 2d at 1095 (collecting cases). She "must show by independent evidence in the summary judgment record that she `was actually performing' her job at the level specified by Defendant." Id. (quoting Whitley v. Peer Review Sys., Inc., 221 F.3d 1053, 1055 (8th Cir. 2000)).
In Whitley v. Peer Review Sys. Inc., the employer produced specific evidence of the employee's deficiencies. 221 F.3d at 1055 (abrogated on other grounds by Torgerson, 643 F.3d at 1059). In response, the employee directed the court "to broad, conclusory statements by herself and others that she was doing her job adequately." Id. The court held that such statements were insufficient to refute her employer's "specific evidence of her poor performance." Id.
Here, there is specific evidence in the record that Green was not meeting the City's legitimate expectations.
The record includes the affidavits of citizens who describe their own experiences with the police department and with Green.
Because Green was not doing her job as police chief, a reasonable jury could not find that Green was terminated because of her race or sex in the face of this evidence. Cf. Rothmeier v. Invest. Advisers, Inc., 85 F.3d 1328, 1335 (8th Cir. 1996) (the law "allows a trial judge to decide on a motion for summary judgment that the evidence is insufficient to infer discrimination"). Green's claims for employment discrimination based on race and sex fail as a matter of law.
For the foregoing reasons, the defendants' motion for summary judgment is GRANTED. Document #20. This action is dismissed with prejudice.
IT IS SO ORDERED.