Mohr v. Dustrol, Inc., 01-3926.

• Decision Date: 30 September 2002
• Docket Number: No. 01-3926.,01-3926.
• Citation: 306 F.3d 636
• Parties: Cindy MOHR, Appellant, v. DUSTROL, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

306 F.3d 636

Cindy MOHR, Appellant, v. DUSTROL, INC., Appellee.

No. 01-3926.

United States Court of Appeals, Eighth Circuit.

Submitted: June 10, 2002.

Filed: September 30, 2002.

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Ms. Joy Shiffermiller, argued, Lincoln, NE, for appellant.

Mr. Jerry L. Pigsley, argued, Lincoln, NE, for appellee.

Before RILEY, BEAM, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Cindy Mohr appeals the district court's adverse grant of summary judgment in her Title VII action against her former employer, Dustrol, Inc. We affirm in part and reverse in part.

I.

Dustrol is a paving maintenance company located in Lincoln, Nebraska. Mohr worked for Dustrol as a flagger on the seasonal heating crew in 1997 and 1998. The duties of a flagger involve controlling traffic in road construction zones by setting up and taking down traffic signs, signaling cars to stop or slow, and driving a lead vehicle through the work area. Although Mohr was occasionally reproached about her performance — e.g., driving too fast and not doing her share of the more tedious sign-holding work — she received raises on a regular basis and there is nothing to suggest that she was not considered, in general, a valuable employee. At some point after the start of the 1998 season, and thus after all hiring and assignment decisions had been made, a new foreman, Criz Sanchez, was assigned to the heating crew. According to Mohr, Sanchez made derogatory comments throughout the 1998 season about the few white workers on the crew and often said he wanted an all-Hispanic crew.

Mohr testified in her deposition that she expected to be called back for the 1999 season. When she hadn't heard from Dustrol by early spring, she called and spoke with Sanchez. According to Mohr, Sanchez told her she would not be on his crew that year because he was not going to have any females on his crew. Mohr nevertheless submitted a formal application on March 19, 1999, and placed the heating crew as her preferred assignment.

Dustrol's hiring and assignment decisions were officially made by Marc Heald and Harlan Baehr. Per their affidavits, they were aware that Sanchez did not want Mohr assigned to the heating crew for the 1999 season. They referenced Sanchez's reported problems with Mohr during the 1998 season — specifically that Mohr refused to do the more menial work of placing and removing signs (because, inter alia, she didn't want to "break her long (fake) fingernails") and wanted only to drive the flagger truck. Heald's affidavit explicitly states that Sanchez "had requested that [Mohr] not be put on the heater crew again because of work performance problems he had with her."

Mohr was initially told there was no work available for her that season. In response, she filed a complaint with the Nebraska Equal Opportunity Commission (NEOC) alleging that Dustrol's failure to rehire her constituted race, national origin and gender discrimination. Around this same time, Dustrol called Mohr and offered her flagging work on the milling crew, a job Mohr considered a demotion because it offered less favorable hours and fewer opportunities for advancement to machine operation. Mohr took the position and started work on April 26, 1999. On May 18th, she quit. One month later, Mohr filed another complaint with the NEOC, alleging that Dustrol retaliated against her for her earlier filing. In this second charge, Mohr marked only "retaliation" as the basis for discrimination and left the boxes for race, sex and national origin unchecked.

On August 24, 2000, the NEOC issued a right to sue letter for each of the filings. Mohr's subsequent federal suit alleged discriminatory failure to hire, failure to train and constructive discharge. The district court granted summary judgment to Dustrol on all claims. On appeal, Mohr argues that genuine issues of material fact remain as to whether she was discriminated against in failing to be rehired for the heating crew and whether she was treated differently with respect to training. She also argues that the district court erred in resolving the failure to train claim on grounds not raised by Dustrol in its summary judgment motion.

II.

"We review a district court's grant of summary judgment de novo, giving the nonmoving party the most favorable reading of the record." Gentry v. Georgia-Pacific Corp., 250 F.3d 646, 649 (8th Cir.2001). Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "When the evidence would support conflicting conclusions, summary judgment should be denied." Kells v. Sinclair Buick-GMC Truck, Inc., 210 F.3d 827, 830 (8th Cir.2000) (citation omitted).

A. Failure to Hire

Mohr's failure to hire claim alleges that Dustrol's decision not to rehire her for the 1999 heating crew was the result of sex, race and national origin discrimination. The district court found that Mohr applied too late to be considered for a position on the heating crew, and, therefore, she could not establish a prima facie case of discrimination.

The framework for evaluating a Title VII discrimination claim depends on the type of evidence presented in support of the claim. Where the plaintiff relies primarily on circumstantial evidence, courts apply a tripartite analysis as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that test, the plaintiff must first establish a prima facie case of discrimination by showing that she was a member of a protected class and suffered an adverse employment action that others outside her class did not suffer. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (discussing burden-shifting framework established by McDonnell Douglas and progeny). The defendant may then offer legitimate, nondiscriminatory reasons for the challenged action. Id. (citing Tex. Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). If the defendant meets this production burden, the plaintiff must prove by the preponderance of the evidence that the nondiscriminatory reasons offered by the defendant are not true, and instead were pretext for discrimination. Id. at 143, 120 S.Ct. 2097 (citations omitted). Significantly, "`[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Id. (quoting Burdine, 450 U.S. at 253, 101 S.Ct. 1089).

In some situations, however, a plaintiff can produce direct evidence that an illegal criterion was a motivating factor in the disputed employment decision. See 42 U.S.C. § 2000e-2(m) ("[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice."). In those cases, the plaintiff is relieved of the ultimate burden of persuasion and the so-called "mixed motive" analysis is applied. See generally Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989); Gagnon v. Sprint Corp., 284 F.3d 839, 847-49 (8th Cir.), petition for cert. filed, 71 U.S.L.W. 3162 (U.S. Aug. 19, 2002) (No. 02-273). Under the mixed motive analysis, "once the plaintiff persuades a factfinder that, more likely than not, discrimination was `a motivating part in an employment decision,' the burden shifts to the employer to prove that the employment decision would nevertheless have been made for legitimate, nondiscriminatory reasons." Yates v. McDonnell Douglas, 255 F.3d 546, 548 (8th Cir.2001) (quoting Price Waterhouse, 490 U.S. at 254, 109 S.Ct. 1775). Such a showing will preclude an award of damages although declaratory judgment, injunctive relief, and attorney's fees would still be possible. See 42 U.S.C. § 2000e-5(g)(2)(A) & (B); Gagnon, 284 F.3d at 847-48; Browning v. President Riverboat Casino-Missouri, 139 F.3d 631, 634 (8th Cir.1998).

In this case, Mohr alleged that Sanchez made repeated derogatory comments about non-Hispanics throughout the 1998 season, and told Mohr directly that she would not be on his crew in 1999 because he was going to have an all-male crew. The district court did not treat these comments as direct evidence of discrimination because it found "no evidence to indicate that [Sanchez] was `closely involved in employment decisions.'" Mohr v. Dustrol, Inc., No. 4:00CV3280, slip op. at 7 (D.Neb. Sept. 6, 2001) (internal quotation omitted). Accordingly, the district court analyzed Mohr's claim under McDonnell Douglas. We disagree with the district court's characterization of the evidence and conclude that Sanchez's alleged remarks could reasonably be deemed direct evidence of discrimination for Title VII purposes.

"Direct evidence is that which demonstrates `a specific link between the alleged discriminatory animus and the challenged [employment] decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated [the employer's] decision' to take the adverse employment action." Deneen v. Northwest Airlines, Inc., 132 F.3d 431, 436 (8th Cir.1998) (quoting Thomas v. First Nat'l Bank of Wynne, 111 F.3d 64, 66 (8th Cir.1997)). Not every prejudiced remark made at work supports an inference of discrimination. See Price Waterhouse, 490 U.S. at 277, 109 S.Ct. 1775 (O'Connor, J., concurring). Thus, "[w]e have carefully distinguished between `comments which demonstrate a "discriminatory animus in the decisional process' or those uttered by individuals closely involved in employment decisions," from "stray remarks in the workplace," "statements by...