United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-3645
                         ___________________________

                                     Melvin Smith

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                                  URS Corporation

                        lllllllllllllllllllll Defendant - Appellee
                                       ____________

                      Appeal from United States District Court
                  for the Eastern District of Arkansas - Pine Bluff
                                   ____________

                           Submitted: September 11, 2014
                              Filed: October 14, 2015
                                  ____________

Before BENTON, MELLOY, and SHEPHERD, Circuit Judges.
                          ____________

MELLOY, Circuit Judge.

       Melvin Smith sued his employer, URS Corporation, alleging retaliation and
race discrimination in violation of 42 U.S.C. § 1981 and § 2000e-2. The district court
granted summary judgment in favor of URS. We reverse.
                                   I. Background

      The United States Army hired contractor URS to destroy munitions at a facility
in Arkansas. Smith, a black male, applied to work for URS as an instructor/trainer
for employees on the Arkansas project. At the time of his application, he understood
he was applying for full-time employment on a project of temporary duration.

       Smith received a position with URS in November 2007. The parties agree
Smith sought the position of "Training Specialist" and a salary of $46,000. URS
hired him with the "Working Title" "Training Specialist" and the "Classification Title
and Job Code" "Senior Training Specialist (65010)." URS employed a salary scale
in which employees were assigned "grades" that corresponded with a salary range.
URS hired Smith at grade S5.12 with a salary of $57,668 per year.1

       Five months later, URS hired a white applicant named Jesse Griffin. Griffin
stated on his written application that he sought the position of "Training Specialist."
Griffin sought a salary of $65,000. A URS human resources employee, Erika Hadley,
extended an offer to Griffin as an S5.12 "Training Specialist." When Griffin
commenced employment with URS, however, he was assigned grade S5.13 with the
"Working Title" "Sr. Training Specialist," the "Classification Title and Job Code"
"Staff Training Specialist (65010)," and a salary of $65,000 per year.

       Two months after URS hired Griffin, it hired a black male applicant, Stanley
Ellis (now Dr. Ellis). Ellis had applied for the position of "Training Specialist"
seeking a salary of "$58K-65K." He was hired with the "Working Title" "Training


      1
        Records provided to the court use multiple titles for employees' positions, but
the parties do not explain the meanings of these titles. We present in detail the
salaries sought, positions received, and multiple titles applied to several different
employees.

                                         -2-
Specialist," the "Classification Title and Job Code" "Sr. Training Specialist (65010),"
and a salary grade of S5.12. Like Smith, Ellis received an annual salary of $57,668.

       At the time of hire, Ellis possessed a master's degree and was working towards
a Ph.D. Smith and Griffin both possessed bachelor's degrees. Smith, Griffin, and
Ellis all had extensive experience.

       Four other trainers already worked for URS on the Arkansas project. These
other trainers, all men, were hired between 2001 and 2003. Three were white and one
was hispanic. All of these earlier-hired trainers held high school diplomas, three of
the four had bachelor's degrees, and none of them had a master's degree or a Ph.D.
All four of these men held the "Working Title" "Sr. Training Specialist" at grade
S5.13 and earned a higher wage than Smith and Ellis. One of the earlier-hired
trainers earned less than Griffin.

       Written descriptions for the S5.12 and S5.13 positions listed duties in mostly
identical terms. For certain duties, the wording differed slightly in ways that seem
inconsequential. For example, the written description for the S5.12 position stated,
"revise course materials as required due to engineering, regulatory or operational
changes and updates," and the description for the S5.13 position stated, "rewrite and
revise course materials as required due to engineering or operational changes and
updates." Differences that may have been consequential were as follows. The S5.12
position description listed, "facilitate vendor- and subcontractor-provided training,"
but the S5.13 position had no corresponding duty. And the S5.13 position description
listed "train other trainers" and "prepare course schedule" with no corresponding
duties for the S5.12 position. The written descriptions for both positions expressly
noted that no supervisory duties were required.

      Smith admits that at the time URS hired him, he did not suspect racial
discrimination—he received the job for which he applied at a rate of pay higher than

                                         -3-
he requested. He also had no knowledge at the time of hire regarding the titles,
salaries, and grades assigned to the earlier-hired trainers. Finally, he did not
immediately learn of Ellis's or Griffin's terms of employment.

       At some time after URS hired Ellis, Smith became aware that Griffin had been
hired at a higher grade and higher rate of pay than both Smith and Ellis. Smith
alleges that because URS hired Smith, Griffin, and Ellis all over a period of months,
but paid Griffin—the only white man among the three hires—a higher salary than the
two black men for doing essentially the same work, racial discrimination reasonably
could be inferred as the explanation for the disparity.

       Like Smith, Ellis indicated that he did not suspect racial discrimination at the
time of his own hire. Ellis stated, however, that the assignment of grades and salaries
(and the eventual order of termination for the three men, as described below) looked
suspicious and discriminatory in retrospect. When asked about the differences
between the S5.12 and S5.13 positions and about the men's actual duties, Ellis stated
that Griffin did not perform duties different from Ellis and Smith other than the fact
that they taught different classes. Ellis indicated that as the time drew near for
closure, Smith and Ellis were teaching full loads whereas Griffin had a light teaching
load.

       In 2009, Smith complained to Training Manager Ted Howard and asked for a
promotion to S5.13. Howard responded that the client (who in this case was the
United States Army) "might frown at that." Smith also complained to a lower-level
shift supervisor, Charles Smith (no relation), who told Smith he was doing a good job
and should ask Howard for a promotion. Smith relayed Charles Smith's opinion to
Howard. Charles Smith later reported that Howard told Charles Smith "not to
encourage" Smith. Charles Smith described Howard’s response as Howard "jumping
all over" him.



                                         -4-
       Eventually, the URS project in Arkansas matured to a point where URS needed
to switch from an ongoing, operational phase of activity towards a final project-
termination or shut-down phase. URS asserts the anticipated ending of the project
and the switch to a final phase required changes in job duties for URS workers and
changes in the courses taught by training staff. URS also began preparations for a
series of reductions in force (RIF).

       Howard conducted a subjective ranking of the trainers and ranked Smith and
Ellis lowest among all seven trainers, thus placing them first in line to be terminated
during a RIF. Howard ranked Griffin highest. Smith points out, and Ellis's
deposition testimony confirms, that Howard assigned these rankings notwithstanding
the fact that Griffin and another trainer had disciplinary reports in their personnel
files. Specifically, Griffin was disciplined for distributing purportedly obscene
material in a class. The other trainer—who was ranked lower than Griffin but higher
than Smith and Ellis—had a disciplinary report for claiming expenses from URS for
a training trip but not attending training. Finally, Smith and Ellis testified that Griffin
had openly conducted a side-business of selling health drinks from his office space
at URS on company time without being disciplined.

        URS asserts Howard's subjective ranking reflected, in part, the different
trainers' relative abilities to teach courses that would be needed during the shut-down
phase of the project. URS, however, points to no evidence tending to suggest how
Howard made determinations regarding the trainers' relative abilities. And Ellis
testified in his deposition that, at the end of Smith's employment, Ellis and Smith
were still teaching courses. Ellis testified that Griffin, on the other hand, would go
"a week or two weeks" without teaching a course.2

      2
         URS did submit to our court a table purportedly listing the courses being
taught by the different trainers prior to the shut-down phase. The table, however, is
illegible due to the shading of boxes and, as such, does not convey what courses were
taught. A legible section of the table indicates Ellis and Smith were qualified to teach

                                           -5-
        After employees were made aware of the rankings and the likely order for their
terminations in the RIFs, Smith renewed his complaint about his salary and grade
assignment. This time, he sent an email to human resources employee Erika Hadley
and met with Hadley and another human resources employee. Smith also asked
Howard about the ranking process. Howard denied having been responsible for the
rankings and told Smith human resources made the decisions. In the present
litigation, URS admits Howard conducted the rankings.

        Although Smith was scheduled to be the first trainer terminated during an
initial RIF, a different trainer voluntarily left employment for other reasons. This
departure allowed Smith to continue working. Eventually, during a subsequent round
of terminations pursuant to the RIF, URS terminated Smith's employment. Smith was
the first trainer involuntarily terminated under the RIF.

       Smith sued, alleging race discrimination and retaliation in violation of 42
U.S.C. § 1981. Smith identified the discrepancy in pay and grade between Griffin,
Ellis, and Smith as discriminatory treatment in the terms and conditions of
employment. He also identified subsequent actions, including the subjective ranking
and order of termination, as discriminatory and retaliatory. Finally, he identified his
own request for higher pay and his report to Howard of a pay and grade discrepancy
as a protected act that triggered retaliation. Smith alleged he should have been paid
at a higher rate while employed by URS and should have continued his employment
until a later-stage RIF. Specifically, he alleged he should have remained employed
at least until the later date at which URS terminated Griffin's employment. The
parties conducted discovery, and URS moved for summary judgment.




fewer closure-related courses. Again, however, there is no indication as to how
Howard reached the conclusion that Ellis and Smith were less qualified than other
trainers to teach closure-related courses.

                                         -6-
       URS's primary argument addressed the question of whether Smith established
a prima facie case. URS argued simply that, because Smith received the job for
which he applied at a rate of pay above what he sought, he could not make out a
prima facie case of discrimination. Regarding the initial salary and job assignments
for Smith, Griffin, and Ellis, URS also argued that Griffin had more management
experience than Smith or Ellis. Regarding the RIF rankings and order of
terminations, URS argued the rankings were based on objective criteria and the
trainers' relative abilities to teach closure-related courses.

      The district court analyzed the claims applying the burden-shifting framework
of McDonnell Douglas Corp. v. Green, 

(1973). In doing so, the district
court held Smith failed to make out a prima facie case of discrimination, stating:

      Here, Smith alleges disparate treatment in hiring because he applied for
      an S5.12 position and was awarded an S5.12 position, while Griffin
      applied for an S5.12 position and was awarded an S5.13 position. The
      undisputed fact remains, however, that Smith received the position for
      which he applied. This is not a case where two candidates competed for
      the same position and one was chosen due to race. As Smith has no
      other facts supporting unlawful discrimination, summary judgment is
      granted as to his disparate treatment claim.

The court did not address the remaining steps of the burden-shifting analysis for the
discrimination claim and did not analyze the retaliation claim independently from the
discrimination claim.

                                   II. Discussion

       We review a grant of summary judgment de novo, viewing the evidence in the
light most favorable to the nonmoving party and drawing all reasonable inferences
from that evidence in favor of the nonmoving party. See Moody v. Vozel, 

, 1096 (8th Cir. 2014).

                                         -7-
                                  A. Discrimination

       The parties agree Smith lacks direct evidence of discrimination, and therefore,
we must analyze the present claims by applying the three-part, burden-shifting
framework of McDonnell 

–04. Pursuant to this burden-
shifting framework, Smith bears the initial burden of establishing a prima facie case.
Torgerson v. City of Rochester, 

, 1046 (8th Cir. 2011) (en banc). If
Smith establishes a prima facie case, the burden then shifts to URS to articulate a
nondiscriminatory reason—a legitimate rationale—for its contested actions. 

then "produce evidence sufficient to create a genuine issue of material
fact regarding whether [URS's] proffered nondiscriminatory justifications are mere
pretext for intentional discrimination." 

v. ESA Servs., Inc., 

, 1007 (8th Cir. 2005)). The burden to prove pretext "merges with the
ultimate burden of persuading the court that [Smith was] the victim of intentional
discrimination." 

Dep't of Cmty. Affairs v. Burdine, 

,
256 (1981)).

       The district court, as quoted above, analyzed the prima facie case for the
discrimination claim as a failure-to-hire claim. In that context, we have said a
plaintiff must show "(1) she is in a protected class; (2) she was qualified for an open
position; (3) she was denied that position; and (4) the [employer] filled the position
with a person not in the same protected class." 

(quoting
Dixon v. Pulaski Cty. Special Sch. Dist., 

, 867–68 (8th Cir. 2009)).
Smith's complaint, however, did not allege that URS failed to hire him; Smith alleged
disparate treatment based on the fact that he, Griffin, and Ellis all applied to work as
Training Specialists but that Griffin was assigned a higher position with pay grade
S5.13 whereas Smith and Ellis were hired as Training Specialists and assigned pay
grade S5.12. We have described the elements of a prima facie case in the specific
context of a § 1981 disparate treatment claim based on allegedly discriminatory pay
differentials:

                                          -8-
      To meet her burden, a plaintiff must show the following: (1) that she is
      a member of a protected class; (2) that she was meeting her employer's
      legitimate job expectations; (3) that she suffered an adverse employment
      action; and (4) that similarly situated employees outside the protected
      class were treated differently.

Fields v. Shelter Mut. Ins. Co., 

, 864 (8th Cir. 2008); see also Lake v.
Yellow Transp., Inc., 

, 874 (8th Cir. 2010) (describing the final element
of the prima facie case more generally, "the circumstances give rise to an inference
of discrimination (for example, similarly situated employees outside the protected
class were treated differently)").3 Applying this framework, we find summary
judgment inappropriate.

      As a preliminary matter, we note the district court applied the wrong legal
analysis. This is not a failure-to-hire case, and the fact the employee was given the
job he applied for does not mean he cannot make a disparate treatment claim. The
simple fact that a black man was awarded the job he applied for does not justify an
employer treating similarly situated employees differently based upon their race.
However, since we can affirm on any basis, and URS has argued the summary
judgment record does not support the disparate treatment claim, we will analyze
whether Smith's claim for disparate treatment can survive summary judgment. See
Keefe v. City of Minneapolis, 

, 1222 (8th Cir. 2015) (noting that we
may affirm a grant of summary judgment on any grounds supported by the record).




      3
       According to Tademe v. Saint Cloud State University, 

(8th Cir.
2003), cited by the dissent, in order to establish a prima facie case of salary
discrimination based on race, a plaintiff must show the employer "paid different
wages to employees of different races for 'equal work on jobs the performance of
which requires equal skill, effort, and responsibility, and which are performed under
similar working conditions.'" 

.

                                         -9-
        Taken in a light most favorable to Smith, the summary judgment record shows
two black men applied for positions and received the positions for which they
applied, one at a salary higher than requested, and one at a salary lower than
requested. Between the hiring of these two men, a white man without meaningfully
different qualifications applied for a position in the same department to perform the
same work and received a higher-ranking and higher-paying position than the black
men (a position, in fact, higher-ranking than the position for which he had applied).
When the first black applicant discovered the differences in title and pay, he asked
for a raise and was told by a supervisor that the client—the United States
Army—"might frown at that." That same supervisor chided a lower-level supervisor
for supporting the first black applicant and told the lower-level supervisor not to
encourage the black man. Later, when it came time to rank the employees for order
of termination during a RIF, the supervisor ranked the two black men lowest among
the department's employees using his subjective views of the employees. And, in
conducting the subjective ranking, the supervisor overlooked disciplinary matters in
the files of the non-black trainers whom he ranked higher than the two black trainers.
Finally, the supervisor falsely denied involvement with the ranking process when the
first black man asked for an explanation.

        The plaintiff's burden at the prima facie stage is not great; the plaintiff is
required to present facts capable of supporting an inference of discrimination.

("The burden of establishing a prima facie case of
disparate treatment is not onerous." (quoting 

)). In
attempting to present facts that would support such an inference, the test for whether
employees are similarly situated is strict; the employees must be "similarly situated
in all material respects." See Onyiah v. St. Cloud State Univ., 

, 717 (8th
Cir. 2012) (quoting 

).

      URS argues Griffin received higher pay and a different title because Griffin
performed different duties than Smith, URS believed Griffin to have greater

                                        -10-
management experience than Smith, and Griffin applied for a different job than
Smith. It is unclear whether URS's arguments are directed towards challenging the
assertion that Smith and Griffin were "similarly situated" or whether the arguments
are offered to present a legitimate rationale for URS's actions. Regardless, to the
extent URS argues Smith and Griffin were not similarly situated, we reject URS's
argument.

       Regarding the men's duties, qualifications, and URS's view of their
qualifications, a plaintiff is not required at the prima facie stage to prove his "relative
qualifications" for a benefit. See 

. Even if such proof
were required at this stage, however, a question of fact would exist as to whether the
men were similarly situated. Smith and Ellis both testified that all three men
performed the same duties. The men worked under the same supervisors, and the
formal, written job descriptions contained in the record show the positions have
materially similar duties. Further, while we do not suggest the men's past experience
is identical, and we acknowledge some differences in the written job descriptions (if
not in the actual duties performed), URS has not explained how any differences that
may exist are material. URS asserts that Griffin had more management experience
without explaining the nature of this experience or its relevance to the training
positions. In this regard, we emphasize that the written descriptions for both the
S5.12 and S5.13 positions expressly note the positions include no supervisory duties.

       We also note the briefs and summary judgment record in this regard are
extremely confusing. URS has not explained to the court the distinctions it uses for
the multiple titles attached to each employee and position. The parties also use
"classification titles" and "working titles" interchangeably and without explanation
in their arguments. In construing the record in the light most favorable to the
plaintiff, we cannot find in favor of URS on these important distinctions. Secondly,
the record is very confusing as to the argument URS makes that Smith and Ellis
sought employment as "Training Specialists" while Griffin responded to a posting and

                                           -11-
applied for a position as "Senior Training Specialist" at S5.13 pay grade. In support
of this argument, URS provides citations to the Appendix, but those citations do not
support the argument. The citation for the proposition that Griffin applied for a
posting of a Senior Training Specialist is App. 30, 239–40. App. 239–40 is the URS
notice of a new hire. It does indicate that Griffin is being hired as classification title,
"Staff Training Specialist," and working title, "Sr. Training Specialist at grade S5.13."
However, it says nothing about the job posting, what Griffin applied for, or the salary
he requested. The citation to App. 30 is a page from Melvin Smith's deposition in
which Smith was asked if he had any knowledge as to whether Griffin applied for the
Senior Training Specialist position. Smith responded "No." URS does not cite to the
actual application filed by Griffin, which is found at App. 251, in which Griffin is
shown to be applying for the position of "Training Specialist," not "Senior Training
Specialist." In short, the record, as presented to this court, does not support the
argument that the three individuals in question, Smith, Griffin, and Ellis applied for
different positions at URS. Rather, the record shows they applied for the same
position but were awarded different positions at different salaries.

        As to the second and third stages of the burden-shifting analysis, URS appears
to assert the same arguments about the men's applications, qualifications, and duties
as nondiscriminatory reasons for its differential treatment. These arguments, and
additional facts and arguments, lead us to conclude summary judgment is
inappropriate. For example, it remains unclear why Griffin's pay grade switched from
S5.12 (in his initial hiring letter from Erika Hadley) to S5.13 (at his actual
commencement of employment). This nuance to the case—the fact that the letter
initially offering him employment listed the S5.12 pay grade—is inconsistent with
URS's insistence that Griffin applied exclusively for an S5.13 position. The Hadley
letter, therefore, lends further support to Smith's claim that the men applied for the
same position.




                                           -12-
       Regarding URS's purported belief that Griffin was more qualified than Smith
and Ellis, URS has not explained with any detail the source of any such belief.4 The
men's backgrounds are not identical, but it is not evident from the face of any cited
materials why differences in their backgrounds would cause URS to view Griffin as
more qualified than Smith or Ellis. And, although an employer's reasonable but
mistaken belief as to a person's qualifications, conduct, or misconduct may serve as
a legitimate rationale capable of defeating an allegation of discrimination, see, e.g.,
Richey v. City of Independence, 

, 784 (8th Cir. 2008), any such belief
must be material to the actual decision at issue. Here, URS did not explain the
relevancy of any differences in background for the positions involved. Given that
neither the S5.12 nor the S5.13 position carried supervisory duties, a reasonable jury
could view URS's assertion that it hired Griffin at a higher level based on purportedly
superior management experience as a false, after-the-fact explanation for its actions.
See Wallace v. DTG Operations, Inc., 

, 1124 (8th Cir. 2006).

        Similarly, there is other evidence of dissembling in this case that a jury could
rely upon to discount URS's claimed rationales for its actions. For example, a jury
could view Howard's false denial of involvement with the ranking process, when
coupled with his seemingly defensive reaction to Smith and Charles Smith, as
evidence of a desire to hide an impermissible motive. See Reeves v. Sanderson
Plumbing Prods., Inc., 

, 147 (2000) ("In appropriate circumstances, the
trier of fact can reasonably infer from the falsity of the explanation that the employer
is dissembling to cover up a discriminatory purpose."); Ridout v. JBS USA, LLC, 716


      4
        The dissent believes that this court must find that Smith was more qualified
than Griffin to support an inference of pretext by URS. See 

. However, unlike the plaintiffs in Torgerson, Smith does not claim as evidence
of pretext that he is more qualified than Griffin. See 

He points to
other facts that could lead to a conclusion that URS's justifications are pretextual. See
Ash v. Tyson Foods, Inc., 

, 457 (2006) (explaining that "qualifications
evidence may suffice, at least in some circumstances, to show pretext").

                                          -13-
F.3d 1079, 1086–87 (8th Cir. 2013) ("Demonstrating that [an employer's] reasons are
unworthy of credence would support a finding of . . . discrimination[.]" (internal
quotation marks omitted)). In this regard, we note URS challenges neither the
assertion that Howard falsely denied involvement with the ranking process nor the
description of Howard's reaction when Smith and Charles Smith lobbied to have
Smith promoted.

       Finally, URS comes back to its main argument that no discrimination existed
because Smith received the position he requested at a higher salary than he sought,
and therefore, there can be no discrimination. For the reasons previously stated, this
is a disparate treatment claim and we reject this argument. Moreover, even if that
argument had any validity as to the initial hire, URS provides no argument as to the
continuing pay disparity after Smith did, in fact, ask for a raise. Smith has presented
adequate evidence to create a jury question on his disparate treatment discrimination
claim.

                                   B. Retaliation

       Smith also alleged in his complaint that the ranking for purposes of the RIF
was done in retaliation for his complaints about disparate pay. The district court,
however, did not discuss the elements of a retaliation claim. Rather, it appears the
district court analyzed the argument concerning the ranking of Smith and Ellis at the
bottom of the RIF list as a discrimination claim. That is, the court referenced "a
prima facie case of discrimination" and the articulation of a "nondiscriminatory
reason" while citing the same alleged racial animus that motivated the disparate pay
as the motivating factor in the RIF rankings. Admittedly, the plaintiff’s resistance to
the motion for summary judgment was less than clear. The resistance did identify the
claim as a retaliation claim and did set out the elements of retaliation, including
protected activity. However, the resistance also discussed at length the possible
discriminatory animus that may have motivated the ranking.

                                         -14-
      Because the district court did not discuss the elements of a retaliation claim,
we will vacate and remand the denial of the retaliation claim. We believe the district
court is better suited to develop the record and address in the first instance the
elements of a retaliation claim and whether that claim can survive summary judgment.

      We reverse the judgment of the district court.



SHEPHERD, Circuit Judge, dissenting.

      I respectfully dissent from the majority’s reversal of the district court. Smith
has failed to establish a prima facie case for discrimination because he has not
demonstrated that he suffered an adverse employment action, nor do the
circumstances give rise to an inference of discrimination from URS’s treatment of
Smith as compared to Griffin.

       Smith received the position for which he applied, and he received a salary
which was over $10,000 per year more than he requested. He therefore suffered no
adverse employment action in the hiring process. He did not apply for a higher
position, nor did URS hire Griffin over Smith. Griffin applied for his job five months
after Smith, and Griffin indicated on his employment application that he expected a
salary of $65,000, which is the salary of the S5.13 grade position for which Griffin
was ultimately hired. Thus, the majority penalizes URS for hiring Griffin at the
salary he requested and hiring Smith at more than $10,000 over the salary which he
sought. Upon these undisputed facts, no reasonable jury could find that URS
unlawfully discriminated against Smith in the hiring process.

       Smith also points to the denial of his request for a raise and his early
termination date as adverse employment actions. We have held that a decision not
to raise an employee’s salary does not constitute an adverse employment action where

                                        -15-
the employee’s salary is not decreased or otherwise diminished in any way. Tademe
v. Saint Cloud State Univ., 

, 992 (8th Cir. 2003). Therefore, Smith’s
contention that the denial of his request for a raise constitutes an adverse employment
action is without merit. Smith’s salary was never decreased nor diminished. In fact,
it is undisputed that Smith’s salary was significantly higher than the salary he
requested in his job application.

       As for Smith’s early termination date, when URS began closing down its
operations in 2010, it created a destaffing process whereby employees completed
tests and were assigned termination dates based on their scores. Griffin scored the
highest of all training specialists, while Smith scored the lowest. Consequently,
Smith was one of the first employees URS released. Smith makes bare allegations
that the test itself was discriminatory, but he provides no evidence that gives credence
to this assertion. Smith’s low test score provides a legitimate, non-discriminatory
reason for his early termination date as compared to Griffin. Moreover, at the time
of Smith’s hire, URS informed him, as it did all of its employees, that the company
had a fixed contract with the government and that it would cease operations upon
completion of the contract. Ultimately, URS laid off all of its employees, and the
facility is no longer in operation.

       Even if Smith could show an adverse employment action, Smith has not shown
that the circumstances give rise to an inference of discrimination. “Although
evidence of pretext is normally considered at the last step of the McDonnell Douglas
analysis, pretext can also satisfy the inference-of-discrimination element of the prima-
facie case.” Young v. Builders Steel Co., 

, 578 (8th Cir. 2013) (citing

). At the inference-of-discrimination stage, a plaintiff may
show pretext by demonstrating that the employer treated similarly-situated employees
in a disparate manner, as Smith attempts to do here. 

. Smith
argues that he was similarly situated to Griffin in all relevant respects; however, the
evidence indicates that URS believed Griffin had more classroom and management

                                         -16-
experience, and was thus better suited to handle a larger range of classes than Smith.
While a plaintiff does not have to prove his relative qualifications to meet his prima
facie burden, he does have to show that he is similarly situated. We have held that
two co-workers were not similarly situated when one co-worker was unable to
perform the job responsibilities of the other. See 

. Here,
Smith has presented scant evidence that he could have handled as large a range of
classes as Griffin. Therefore, in one highly relevant respect, Smith has failed to meet
his burden to demonstrate that he is similarly situated to Griffin.

         The majority devotes much of its opinion to scrutinizing the nondiscriminatory
justifications articulated by URS. Yet, URS’s burden is “not onerous, and the
explanation need not be demonstrated by a preponderance of the evidence.”

(quoting Floyd v. State of Mo. Dep’t of Soc. Servs., Div.
of Family Servs., 

, 936 (8th Cir. 1999)). URS has consistently
maintained that Griffin asked for a higher salary and was more qualified than Smith.
“Where . . . the employer contends that the selected candidate was more qualified for
the position than the plaintiff, a comparative analysis of the qualifications is relevant
to determine whether there is reason to disbelieve the employer’s proffered reason for
its employment decision.” 

(citation omitted). We have
determined that “[i]f the comparison ‘reveals that the plaintiff was only similarly
situated or not as qualified as the selected candidate,’ then no inference
of . . . discrimination would arise.” 

(quoting Wingate v. Gage Cnty. Sch.
Dist., 

, 1080 (8th Cir. 2008)). At most, Plaintiff has shown that his
qualifications are similar to Griffin. Therefore, Smith’s disparate treatment claim
must fail.

      With regard to Smith’s retaliation claim, Smith claims that URS retaliated
against him for questioning his S5.12 status, however, Smith first complained to his
supervisors about his treatment in 2009 and he was not laid off until 2011. Moreover,
URS articulated a non-retaliatory reason for Smith’s termination: he scored the lowest

                                          -17-
on the destaffing tests. Further, at the time URS hired Smith, URS informed him that
the facility would shut down at some point in the foreseeable future. URS eventually
laid off every employee, and the order of termination was assigned by test score, with
the lowest-scoring employees receiving the earliest termination dates. Given these
facts, Smith has not demonstrated that URS retaliated against him for complaining
about his S5.12 position.

      Accordingly, I would affirm the district court’s grant of summary judgment in
favor of URS.
                      ______________________________




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