BYE, Circuit Judge.
James and Lena Gibson, husband and wife, appeal the district court's
Lena Gibson, an African-American female, has worked at AGC since January 1975 in a number of departments, performing a variety of job duties, and is currently still employed at AGC. She was approximately age fifty-three at the time of events giving rise to her lawsuit. In this action, Lena claims AGC failed to cross-train her for higher-level positions due to race discrimination, age discrimination, and retaliation
James Gibson is an African-American male, and is married to Lena Gibson. AGC hired James in 1990. He was age fifty-two when AGC terminated his employment. James alleges his termination was the product of age and race discrimination. In addition, he claims AGC retaliated against him in response to Lena's internal complaints, and his own internal complaint alleging discrimination, which was pending at the time of his termination.
Two AGC policies are particularly useful to understanding the Gibsons' complaints. First, AGC has in place a Solutions Mediation Program ("Solutions"), which allows employees to bring disputes before a neutral mediator in an effort to resolve employees' grievances amicably. Allegations of race and age discrimination represent two types of grievances an employee may submit for mediation.
Second, AGC employees are subject to a progressive discipline policy as described in the Associate Handbook. According to the Handbook, an employee may be disciplined in the form of a written warning for violations including, but not limited to, failure to maintain production standards, carelessness or inattention to safety rules, or a violation of the attendance policy. An employee with two or more written warnings on file during a twelve-month work period is ineligible for a promotion or transfer. Furthermore, an employee may be discharged after receiving five written warnings. If an employee works for a period of one year without receiving any written warnings, prior violations are not counted against that employee for purposes of the progressive discipline. This one year period is based on time worked, not on a calendar year; thus, time spent on qualified leave or vacation is not credited towards this one year period.
In August 2005, Lena began receiving written warnings for things such as failing to follow proper procedure or having an error rate outside company guidelines. Although Lena admits to receiving these warnings, she generally denies their validity.
About a month after receiving her third warning in June 2006,
On two occasions in 2007, Lena applied for open positions which would have allowed her to cross-train. AGC claims she was ineligible for the first position of power truck operator for holiday order filling, which it had posted in July 2007, because she had three written warnings on her disciplinary record. AGC presented evidence the position was awarded to Kelvin Street, a thirty-three year-old African-American male. In August 2007, Lena applied to two job openings: one position was for work as a back up line dispatcher in the shipping department, and the other was for a back up line control clerk in the receiving and stores department. Lena
Lena filed a second Solutions claim in December 2007, alleging race discrimination, age discrimination, and retaliation.
James initially worked at AGC as a Power Truck Operator in Returned Goods. From August 1990 through October 2005, James received performance reviews that were "commendable," "exceeding expectations," or "distinguished," and had a clean record with the exception of two informatives,
In February 2006, James began receiving a series of verbal and written warnings which culminated in his termination. On February 21, 2006, management verbally reprimanded James for failing to adhere to the call-in policy, which required employees to report an absence at least thirty minutes before a scheduled shift. Although James admits these events occurred, he denies the validity of the warning, and claims he had provided a written doctor's excuse. On June 29, 2006, James again violated the thirty-minute call-in policy and received the next level of discipline, an informative. James similarly denies the validity of this informative, and again claims he had provided a written doctor's excuse.
On November 21, 2006, and December 19, 2006, James received his first and second written warning, respectively, for again failing to follow the thirty-minute call-in policy. James admits receiving the written warnings, but currently denies their validity. On March 9, 2007, James received an informative for safety violations after he was observed operating his power truck in an unsafe manner. James denied he was driving in an unsafe manner in writing on the informative, claiming "[t]he person accusing me would be wrong." J.A. at 122.
James received his third written warning on September 19, 2007, for safety violations, when a load of stock fell off the power truck he was operating, nearly striking another employee. As a result, James was relieved of his power truck operator job and placed elsewhere within the facility. He was replaced by Earnest Tunstall, a sixty-three year-old African-American male. James denies the factual allegations underlying the third warning, and states the allegations were used as a pretext to relieve him of his power truck operator job. On November 1, 2007, James received his fourth written warning after he failed to follow the thirty-minute call-in policy. James again denies the validity of this warning.
James's fifth and final written warning arose because he allegedly failed to meet uniform time standard for the four-week period beginning January 6, 2008, through January 27, 2008. According to AGC, as of January 2008, all employees were required to meet or exceed a 90% efficiency rating, irrespective of race or age. James denies this standard was applied uniformly. In addition, James claims he worked in a group which made it impossible to determine his individual standard because of the group performance, and asserts this false accusation was used as a pretext for his discharge. As a result of this final warning, on February 19, 2008, AGC informed James he was being terminated under AGC's progressive discipline policy.
Lena and James Gibson brought suit against AGC alleging race discrimination, age discrimination, and retaliation pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, 42 U.S.C. § 1981, the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, the Civil Rights Act of 1991, and the Arkansas Civil Rights Act of 1993, Ark.Code Ann. §§ 16-123-101 to 16-123-108. Lena alleged in her complaint that throughout her employment she had been subjected to different standards than her younger, white colleagues, she had been blamed for the mistakes of others, and that AGC generally failed to acknowledge her seniority and refused her cross-training while giving such opportunities to younger, white employees. She asserts these discrepancies in treatment were a result of racial and age discrimination, and retaliation for filing Solutions claims. James similarly alleged he was blamed for the mistakes of others and subjected to different efficiency standards compared to his younger, white colleagues. He claims these differences in treatment were a result of race and age discrimination, as well as retaliation in response to his wife's and his own participation in AGC's Solutions Mediation program, and for filing an EEOC discrimination charge.
The district court granted summary judgment in favor of AGC on all claims. It stated neither plaintiff had produced direct evidence of discrimination, and concluded under the McDonnell Douglas burden-shifting framework, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), neither James nor Lena had produced sufficient evidence to make out a prima facie case of race or age discrimination. The district court reasoned "unsupported and conclusory allegations cannot defeat summary judgment," and generally found the discrimination claims failed because neither plaintiff offered "proof beyond speculation and conjecture." Alternatively, the district court found that even if the Gibsons had presented a prima facie case, they had failed to prove any actions taken by AGC were
On appeal, the Plaintiffs argue the district court improperly granted summary judgment because genuine issues of material fact exist. The Gibsons specifically raise two issues which they contend the district court failed to address. First, the Gibsons argue their testimony corroborates each other's, particularly in light of the district court's acknowledgment their claims are parallel. Second, the Gibsons claim the district court failed to account for the testimony of former AGC employee Mary Clarksenior. The Gibsons presented Clarksenior's testimony via a deposition transcript recorded on January 4, 2006, in an unrelated case in which numerous employees alleged age and race discrimination claims against AGC. See Bell v. Am. Greetings Corp., 279 Fed.Appx. 415 (8th Cir.2008) (summarily affirming the district court's grant of summary judgment on all claims in favor of AGC). The Gibsons assert Clarksenior worked at AGC for twenty-one years,
"We may affirm a district court's grant of summary judgment on any basis supported by the record." Menz v. New Holland N. Am., Inc., 507 F.3d 1107, 1110 (8th Cir.2007). "We review a district court's decision to grant a motion for summary judgment de novo, applying the same standards for summary judgment as the district court." Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 514 (8th Cir.2011). We have recently described the appropriate standard in considering summary judgment motions, including employment discrimination cases, as follows:
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir.2011) (en banc) (internal quotation marks and citation omitted). To clarify, "[a]lthough the burden of demonstrating the absence of any genuine issue of material fact rests on the movant, a nonmovant may not rest upon mere denials or allegations, but must instead set forth specific facts sufficient to raise a genuine issue for trial." Wingate v. Gage Cnty. Sch. Dist., No. 34, 528 F.3d 1074, 1078-79 (8th Cir.2008). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We also note that we analyze the Gibsons' Title VII and Arkansas Civil Rights Act claims under the same standards. McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 860 (8th Cir. 2009).
The Gibsons may survive AGC's motion for summary judgment in one of two ways. They may either "present admissible evidence directly indicating unlawful discrimination," or alternatively, they could create "an inference of unlawful discrimination under the burden-shifting framework established in McDonnell Douglas Corp" Humphries v. Pulaski Cnty. Special Sch. Dist., 580 F.3d 688, 692 (8th Cir.2009) (internal quotation marks and citations omitted). To prove intentional discrimination through direct proof, a plaintiff must establish "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 employer's decision." Putman v. Unity Health Sys., 348 F.3d 732, 735 (8th Cir.2003) (internal quotation marks and citation omitted). Because neither James nor Lena presented direct evidence of race discrimination, we analyze their claims under the McDonnell Douglas burden-shifting framework. See Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 792 (8th Cir.2011).
Under the McDonnell Douglas burden-shifting framework, a "plaintiff must [first] establish a prima facie case of discrimination." Jackson v. United Parcel Serv., Inc., 643 F.3d 1081, 1086 (8th Cir. 2011). To establish a prima facie case for race discrimination, a plaintiff "must show (1) he is a member of a protected class, (2) he met his employer's legitimate expectations, (3) he suffered an adverse employment action, and (4) the circumstances give rise to an inference of discrimination (for
We begin by acknowledging Lena and James do raise similar claims, which may shed some light on managerial motives: both Gibsons generally allege they were subjected to differing efficiency standards based on their race and age, and assert they were blamed for the mistakes of others, leading to what the Gibsons claim were unwarranted written warnings in their records. See Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802-03 (8th Cir.2009) (finding evidence of other sexual harassment claims highly probative of the type of workplace environment the plaintiff experienced); Williams v. ConAgra Poultry Co., 378 F.3d 790, 794 (8th Cir.2004) ("We believe that evidence of racial bias in other employment situations could permissibly lead to the inference that management was similarly biased in the case of [the plaintiff's] firing."). In addition, similar allegations regarding differing standards were also made by Clarksenior, though the events she described must have occurred prior to her termination in 2002, well before the Gibsons began receiving the warnings at issue here in 2005 and 2006, respectively. We also acknowledge that deposition testimony of non-parties may, depending on the facts and circumstances, be used to show discriminatory intent in the context of a § 1981 claim. See Bennett v. Nucor Corp., 656 F.3d 802, 809-810 (8th Cir.2011).
But even assuming the Gibsons collective evidence established a prima facie case of race discrimination, summary judgment was still proper for both Lena and James because the evidence they presented was insufficient to prove AGC's actions were merely pretext for discrimination. See, e.g., Anderson, 606 F.3d at 521 (noting the court would assume plaintiff could establish a prima facie case and proceed directly to analyzing the discrimination claim under the pretextual prong of the analysis). "A plaintiff may show pretext, among other ways, by showing that an employer (1) failed to follow its own policies, (2) treated similarly-situated employees in a disparate manner, or (3) shifted its explanation of the employment decision." Lake, 596 F.3d at 874. "We have observed that there are `at least two routes' for demonstrating a material question of fact as to pretext." Anderson, 606 F.3d at 521 (citing Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1120 (8th Cir. 2006)). "First, a plaintiff may succeed indirectly by showing the proffered explanation has no basis in fact. Second, a plaintiff can directly persuade the court that a prohibited reason more likely motivated the employer." Id. (internal quotation marks and citation omitted).
AGC explained it denied Lena one opportunity to cross-train as a power truck operator for holiday order filling, a position it had posted in July 2007, because she had three written warnings in her record. Lena's general allegations other employees did not receive written warnings for similar actions, or that younger,
Similarly, AGC explained James was terminated only after he accumulated five written warnings on his record. Because the record reflects each of these warnings was given in response to conduct prohibited by company policies, "the burden ultimately rests on [James] to show a genuine issue for trial about whether the employer acted based on an intent to discriminate rather than on a good-faith belief that the employee committed misconduct justifying termination." Wierman v. Casey's Gen. Stores, 638 F.3d 984, 995 (8th Cir.2011) (internal quotation marks and citation omitted). Because James has failed to "point to enough admissible evidence to raise genuine doubt as to the legitimacy of the defendant's motive," he has failed to prove pretext on the part of AGC. Id. (internal quotation marks and citation omitted); see also Richmond v. Bd. of Regents of Univ. of Minn., 957 F.2d 595, 598 (8th Cir.1992) (finding employer produced documentation that employee's performance was unsatisfactory, that plaintiff ignored progressive warnings and discipline, and that plaintiff's performance did not improve, sufficient to support legitimate, non-discriminatory reason for termination). Thus, summary judgment in favor of AGC on James Gibson's race discrimination claim was also proper.
"The ADEA prohibits discrimination against employees, age 40 and over, because of their age." Rahlf v. Mo-Tech Corp., Inc., 642 F.3d 633, 636-37 (8th Cir. 2011) (citing 29 U.S.C. §§ 623(a)(1), 631(a)). 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.. . . ." Haigh v. Gelita USA, Inc., 632 F.3d 464, 468 (8th Cir.2011). Because the Gibsons have failed to show direct
First, "[t]o establish a prima facie case of age discrimination, [a plaintiff] must show he (1) was at least forty years old, (2) suffered an adverse employment action, (3) was meeting his employer's legitimate expectations at the time of the adverse employment action, and (4) was replaced by someone substantially younger." Morgan v. A.G. Edwards & Sons, Inc., 486 F.3d 1034, 1039 (8th Cir. 2007). Once a plaintiff "establishes a prima facie case, the burden shifts to [the employer] to provide a legitimate, nondiscriminatory reason for the [adverse employment action]." Haigh, 632 F.3d at 468. "Finally, if [the employer] provides such a reason, the burden returns to [the plaintiff] to prove [the employer's] reason was mere pretext for discrimination." Id. Furthermore, to succeed in proving age discrimination, a plaintiff "must show, by a preponderance of the evidence, that age was the `but-for' cause of the challenged adverse employment action." Id.
Again, even assuming both Lena and James presented sufficient evidence to make out a prima facie case of age discrimination, they have both failed to present adequate proof to overcome AGC's proffered legitimate, nondiscriminatory reasons for its employment actions—limiting Lena's cross-training opportunities and terminating James. See Tusing, 639 F.3d at 515 ("[W]e will assume without deciding that [the plaintiff] has established a prima face case [of age discrimination]."). "When an employer articulates a nondiscriminatory reason for an [employment action,] the factual inquiry proceeds to a new level of specificity." Rahlf, 642 F.3d at 638 (internal quotation marks and citation omitted). "The showing of pretext necessary to survive summary judgment requires more than merely discrediting an employer's asserted reasoning for [an employment action]. A plaintiff must also demonstrate that the circumstances permit a reasonable inference of discriminatory animus." Haigh, 632 F.3d at 470 (internal quotation marks and citation omitted). Lena generally claims she was denied cross-training—thereby limiting her chances for a promotion—while most of the people who got better jobs were younger and had less seniority. James claims he was replaced by a younger, white male, a claim AGC successfully rebutted. The Gibsons' general allegations are not "sufficient, specific evidence of disparate treatment to survive summary judgment." Anderson, 606 F.3d at 524.
"Title VII's anti-retaliation provision prevents employers from retaliating against employees who have acted to vindicate their statutorily protected rights by reporting harassment or discrimination in the workplace." Brannum v. Mo. Dep't of Corr., 518 F.3d 542, 547 (8th Cir.2008) (internal quotation marks and citation omitted). "When no direct evidence of discriminatory retaliation is asserted, as is the case at hand, the McDonnell Douglas analysis applies." Twymon v. Wells Fargo & Co., 462 F.3d 925, 936 (8th Cir.2006). "First, the plaintiff must put forth a prima facie case of retaliation." Id. To establish a prima facie case of retaliation, "an employee must show that he engaged in protected activity; he suffered a materially adverse action that would deter a reasonable employee from making a charge of employment discrimination; and there is a causal connection between the protected activity and the adverse action." Barber, 656 F.3d at 801-02 (internal quotation marks and citation omitted). "[I]f the plaintiff puts forth a prima facie case, the employer may rebut the resulting presumption
Lena has not produced sufficient evidence to indicate AGC's employment actions allegedly denying her cross-training were retaliatory in nature. "A party's unsupported self-serving allegation that her employer's decision was based on retaliation does not establish a genuine issue of material fact." Jackson, 643 F.3d at 1088 (internal quotation marks and citation omitted). Thus, the district court properly determined Lena failed to make out a prima facie case of retaliation. As for James, even if we assumed he established a prima facie case of retaliation simply by nature of the fact AGC terminated him while his Solutions claim was pending, see O'Bryan v. KTIV Television, 64 F.3d 1188, 1193-94 (8th Cir.1995) (noting "close proximity in time between plaintiff's administrative filings and his termination established, at minimum, a genuine issue of material fact on the elements of his prima facie case") (internal quotation marks and citation omitted), AGC offered legitimate, non-discriminatory reasons for James's termination. Because James "presented no evidence from which a jury could conclude that [AGC's] proffered legitimate reason for his termination was pretextual . . . , summary judgment on [James Gibson's] § 1981 retaliation claim was appropriate." Gacek v. Owens & Minor Distrib., Inc., 666 F.3d 1142, 1147 (8th Cir.2012). See also Hervey v. Cnty. of Koochiching, 527 F.3d 711, 723 (8th Cir. 2008) ("Where timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.") (quoting Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2nd Cir.2001)).
For the foregoing reasons, we affirm the district court's grant of summary judgment in favor of AGC on all claims.