KELLY, Circuit Judge.
Mary Doucette brought suit in Minnesota state court, alleging that her discharge by Morrison County constituted discrimination based on her sex and her age, in violation of the Minnesota Human Rights Act (MHRA), and that it was in reprisal for filing a discrimination complaint under the MHRA. She also claimed the County retaliated against her after she took leave under the federal Family Medical Leave Act (FMLA). The County removed the case to federal court and moved for summary judgment on all claims. The district court
Doucette worked for Morrison County for thirty years, including seventeen years as the assistant jail administrator. The County fired her in November 2011 for repeated record-keeping errors. Doucette asserts her record-keeping duties comprised just a small part of her job: she maintained the jail's records and accounts, oversaw jail staff and operations, and supervised inmate programming and services. At the times most relevant to her claims, Doucette was supervised by jail administrator Lieutenant Michael Monnier and by Sheriff Michel Wetzel.
For several years as the assistant jail administrator, Doucette had only minor performance issues. In 2007, however, Doucette began to accrue disciplinary citations, the details of which are set out in the district court opinion. She received verbal reprimands in January and March 2007 regarding billing errors. For over two
One of Doucette's duties was to conduct monthly reconciliations of inmates' commissary accounts, in accordance with a September 2010 recommendation from a state auditor. No one was assigned to complete these reconciliations while she was on vacation from late January through late February 2011. In May 2011, Monnier asked Doucette about the status of the reconciliations, and she falsely said she had completed them; she later testified she wanted to "get him off [her] back" while she resolved discrepancies between their computer records and bank records. One month later, the two met again, and Doucette told him about the discrepancies for the first time. Monnier and Doucette then met with Wetzel, and Doucette said only three reconciliations had been done since September 2010. Monnier noted an error with one of the reconciliations and another incorrect bill, and he subsequently placed Doucette on a three-day suspension. After a meeting in July 2011 to discuss two more billing errors, Doucette was suspended for five days.
Doucette took FMLA leave in August 2011. Just before she left, she filed a union grievance regarding her five-day suspension, and she submitted a complaint to the County alleging sex and age discrimination. She returned to work in October 2011. Since Doucette had attributed her errors in part to her workload, Monnier suggested that co-workers assume some of her non-billing responsibilities. Doucette contends that upon her return, the County harshly scrutinized her work and gave confusing directions about a new policy to be implemented. In November 2011, she made two more billing mistakes: overcharging the County by $15 to $20 for an inmate's medication, and neglecting to include a particular document when submitting an invoice to Monnier. She was fired shortly thereafter. She was 55 years old at the time. Doucette asserts her discharge was due to her age and her sex, rather than due to the billing errors.
Doucette appeals the district court's grant of summary judgment on her claims of sex and sex-plus-age discrimination under the MHRA. Minn.Stat. § 363A et seq. We review de novo a grant of summary judgment. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). We will affirm "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "`[F]acts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.'" Torgerson, 643 F.3d at 1042 (quoting Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490 (2009)). "`Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.'" Id. (quoting Ricci, 129 S.Ct. at 2677).
Doucette contends the County fired her based on her sex, not on the billing errors outlined above, in violation of Minn.Stat. § 363A.08(2).
A discriminatory motive may be established through direct evidence or indirect evidence. Id. at 722-24. In considering MHRA claims that, like Doucette's, are based on indirect evidence of discrimination, we apply the three-step burden-shifting framework developed for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Hunter, 697 F.3d at 702 (citing Sigurdson v. Isanti Cnty., 386 N.W.2d 715, 719-20 (Minn.1986)). Under the McDonnell Douglas framework, Doucette must first make a prima facie case of discrimination by showing "(1) she is a member of a protected group; (2) she was qualified for her position; (3) she was discharged; and (4) the discharge occurred under circumstances giving rise to an inference of discrimination." Elam v. Regions Fin. Corp., 601 F.3d 873, 879 (8th Cir.2010) (quotation omitted). If she succeeds in making a prima facie case, "the burden of production shifts to the [County] to articulate a non-discriminatory, legitimate justification for its conduct, which rebuts [her] prima facie case." Id. (quotation omitted). If the County meets its burden, Doucette must "produce evidence sufficient to create a genuine issue of material fact regarding whether [the County's] proffered nondiscriminatory reason is a pretext for discrimination." Id. (quotation omitted).
To establish a prima facie case, Doucette argues the County's reasons for firing her were pretextual. See Lake v. Yellow Transp., Inc., 596 F.3d 871, 874 (8th Cir.2010) ("Evidence of pretext, normally considered at step three of the McDonnell Douglas analysis, can satisfy the inference-of-discrimination element of the prima facie case."). Doucette offers the same proof of pretext as at step three, which requires a more demanding inquiry. We therefore assume without deciding that her evidence is sufficient to generate an inference of discrimination and she has met her burden at step one.
Because the County offered a "non-discriminatory, legitimate justification for its conduct," Elam, 601 F.3d at 879, we proceed to step three, where Doucette must raise an issue of fact as to whether the County's reason for firing her was pretextual. Doucette "must prove more than the prima facie case to show pretext, because unlike evidence establishing the prima facie case, evidence of pretext and discrimination is viewed in light of the employer's justification." Chappell v. Bilco Co., 675 F.3d 1110, 1117 (8th Cir. 2012) (quotation omitted). To show pretext, Doucette first asserts that her positive performance review in 2009 casts doubt on the validity of her subsequent disciplinary record. Prior evaluations "may show that [Doucette] had performed competently in the past, but they do not render her more recent negative evaluations inherently untrustworthy." Rose-Maston v. NME Hospitals, Inc., 133 F.3d 1104, 1109 (8th Cir.1998). Moreover, most of her billing errors and resulting discipline occurred after the 2009 performance review, and "employers may choose to rely on recent performance more heavily than past performance." Twiggs v. Selig, 679 F.3d 990, 994 (8th Cir.2012) (quotation omitted). Doucette's 2009 performance review does not create an issue of material fact regarding the County's intent in firing her.
As an additional way to demonstrate pretext, Doucette contends she was treated differently from similarly situated male employees. See Lake, 596 F.3d at 874. We may find the County's asserted reason for firing Doucette was pretextual if "it was not the [County's] policy or practice to respond to [performance] problems in the way it responded" in her case. Erickson v. Farmland Indus., Inc., 271 F.3d 718, 727 (8th Cir.2001). Doucette has the burden to demonstrate by a preponderance of the evidence that there were male County employees who were not disciplined as she was for comparable conduct. See Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir.2003). Doucette suggests as apt comparators two male County employees who performed different jobs but, like her, had performance issues.
First, Doucette notes that Monnier rated a crew leader, age 49, as deficient for three years with respect to intake processing standards.
Although Doucette and her co-workers were all supervised by Monnier, Doucette faces particular difficulties in meeting her burden to demonstrate that other employees were similarly situated. No one else had a similar job, so none of her co-workers made easily comparable mistakes. It is possible that the correctional officer's alleged mistreatment of inmates, though different in kind from Doucette's billing errors, would merit greater punishment. See id. ("[D]emanding that the compared employees have engaged in precisely identical conduct would make an employee's conduct which was more serious than that of the plaintiff irrelevant to the analysis. Common sense as well as our case law dictates that we reject such an approach." (quotation omitted)). Nevertheless, even if Doucette's co-workers' misconduct need not be identical to hers, their actions — apparent noncompliance with certain jail safety policies and mistreatment of inmates — are too "different in type" to be probative of pretext at this stage. Id.
Doucette also has not provided enough information regarding her two male co-workers that, if true, would give rise to a genuine issue of material fact. We gauge the seriousness of misconduct in part based on its frequency, and Doucette has not indicated how many times these asserted comparators engaged in the misconduct for which she asserts they should have been disciplined. See Elam, 601 F.3d at 881; see also Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691-92 (8th Cir.2002) (citing employees' disciplinary history as an important factor in assessing whether they were similarly situated). Doucette notes complaints regarding the correctional officer's actions, but the record does not reflect whether those complaints were investigated or resolved, and she does not contend this question is material to our analysis of her claim. Also, one of the crew leader's deficiencies was his speed in intake processing, but unlike Doucette's
Doucette also appeals the district court's grant of summary judgment on her claim of sex-plus-age discrimination under the MHRA. "`Sex-plus' discrimination occurs when employees are classified on the basis of sex plus one other seemingly neutral characteristic." Knott v. Mo. Pac. R. Co., 527 F.2d 1249, 1251 (8th Cir.1975). Doucette claims the County discriminated against her as an older woman. Although the Minnesota Supreme Court has not had occasion to recognize a claim for sex-plus-age discrimination under the MHRA, the Minnesota Court of Appeals has done so. See Pullar v. Indep. Sch. Dist. No. 701, 582 N.W.2d 273, 277 (Minn.Ct.App.1998) (citing Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971) (per curiam)). The County seeks to distinguish Pullar on the grounds that it dealt with a "sex-plus" discrimination claim where the additional characteristic, familial status, was not otherwise protected under the MHRA. However, we agree with the district court that a claim of sex-plus-age discrimination is likely cognizable under the MHRA.
Doucette offers both direct and indirect evidence of sex-plus-age discrimination. Direct evidence may include "remark[s] by a decisionmaker [that] ... show a specific link between a discriminatory bias and the
At her deposition, Doucette said that Wetzel "made a comment where he was at one of our staff meetings that women — or not women, that old people shouldn't be working in our profession because they get injured." She then clarified that by "our profession," she meant "law enforcement." Wetzel's audience was older women, but there is no evidence he meant older women were particularly prone to injury or should take greater care than men to avoid injury by not working in law enforcement. Wetzel's comment was gender-neutral; even if taken to apply to his audience, Doucette has not demonstrated this remark, while made by a "decisionmaker," was connected to "the decisional process itself." Id.
Doucette also cites a question by Monnier to her daughter, Tracy LeBlanc, as evidence that he wanted her to retire. Though LeBlanc's and Monnier's reports of the conversation differ, we take the facts in the light most favorable to Doucette, the nonmoving party. In her declaration, LeBlanc wrote that while Doucette was on vacation, "Mike Monnier approached me an[d] asked whether my mother, Mary Doucette[,] was planning on retiring. I responded to Mike that mom had no intention of retiring." Although retirement inquiries may be "so unnecessary and excessive — that is, unreasonable — as to constitute evidence of discriminatory harassment," asking a question about someone's retirement plans is not inherently discriminatory. Cox v. Dubuque Bank & Trust Co., 163 F.3d 492, 497 (8th Cir.1998) (citations omitted). We do not find Monnier's question unreasonable.
As indirect evidence, Doucette provides substantially the same proof for this claim as for her sex discrimination claim. She fails to demonstrate that the County's asserted cause for terminating her was pretextual for the same reasons. Based on the record Doucette has presented, we cannot infer discriminatory intent motivated her termination, as her two male co-workers of comparable age did not engage in sufficiently similar misconduct or have a similar disciplinary history. In addition, she contends a younger female employee had received more favorable treatment. After Doucette complained to Monnier that the younger woman was taking excessive breaks, Monnier instituted a uniform policy regarding the duration of lunch and other breaks. However, there is no evidence that this policy was enacted in a punitive way, and absent more, it does not reflect discriminatory treatment of Doucette as an older woman. In sum, Doucette has not presented evidence sufficient to create a genuine issue of material fact as to her sex-plus-age discrimination claim.
For the reasons above, we affirm the district court's grant of summary judgment on both claims.