387 F.3d 733 (8th Cir. 2004), 03-3266, Griffith v. City of Des Moines

Docket Nº:03-3266.
Citation:387 F.3d 733
Party Name:David GRIFFITH, Plaintiff--Appellant, v. CITY OF DES MOINES, et al., Defendants--Appellees.
Case Date:October 15, 2004
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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387 F.3d 733 (8th Cir. 2004)

David GRIFFITH, Plaintiff--Appellant,


CITY OF DES MOINES, et al., Defendants--Appellees.

No. 03-3266.

United States Court of Appeals, Eighth Circuit

October 15, 2004

Submitted: April 15, 2004

Rehearing and Rehearing En Banc Denied Dec. 17, 2004.

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Danielle Foster-Smith, argued, West Des Moines, IA (John O. Haraldson, on the brief), for appellant.

Steven C. Lussier, argued, Des Moines, IA (Chester C. Woodburn, III, on the brief), for appellee.

Before LOKEN, Chief Judge, BYE, Circuit Judge, and MAGNUSON, [*] District Judge.

LOKEN, Chief Judge.

David Griffith, who is Hispanic, joined the Des Moines Fire Department in 1989. He commenced this action in August 2001, alleging on-going disparate treatment and retaliation by the City of Des Moines, Fire Chief Ronald Wakeham, and Assistant Fire Chief Jerry Cohoon in violation of Title VII, 42 U.S.C. § 2000e-2; 42 U.S.C. §§ 1981 and 1983; and the Iowa Human Rights Act, Iowa Code § 216.6. The district court 1 granted summary judgment dismissing Griffith's Third Amended Complaint. Griffith appeals. Reviewing the grant of summary judgment de novo, and viewing the summary judgment record in the light most favorable to Griffith, the nonmoving party, we affirm. See Putman v. Unity Health Sys., 348 F.3d 732, 733 (8th Cir. 2003) (standard of review).

I. A Threshold Issue of Law.

Title VII and the Iowa Human Rights Act prohibit an employer from discriminating against an employee with respect to his compensation, terms, or conditions of employment on account of his race, color, religion, sex, or national origin. Griffith complains that he was suspended and then denied retraining, unfairly disciplined, and

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harassed by co-workers because of his Hispanic background.

Griffith urges us to conclude, as some district courts have concluded, that the Supreme Court in Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003), implicitly directed us to modify our Circuit's use of the familiar framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), at the summary judgment stage of an employment discrimination lawsuit. Griffith's brief does not explain how our summary judgment analysis must be modified. But he relies on Dunbar v. Pepsi-Cola General Bottlers of Iowa, Inc., 285 F.Supp.2d 1180, 1197 (N.D.Iowa 2003), where the court concluded that, at the summary judgment stage, the third step in the McDonnell Douglas analysis must be modified "so that it is framed in terms of whether the plaintiff can meet his or her 'ultimate burden' to prove intentional discrimination, rather than in terms of whether the plaintiff can prove 'pretext.' " We do not agree that Desert Palace affected controlling Eighth Circuit precedents in this fashion.

Desert Palace involved the post-trial issue of when the trial court should give a "mixed motive" jury instruction under 1991 Title VII amendments codified at 42 U.S.C. §§ 2000e-2(m) and 2000e-5(g) (2) (B). The Court's opinion did not even cite McDonnell Douglas, much less discuss how those statutes impact our prior summary judgment decisions. While in general the standard for granting summary judgment "mirrors" the standard for judgment as a matter of law, Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), the contexts of the two inquiries are significantly different. At the summary judgment stage, the issue is whether the plaintiff has sufficient evidence that unlawful discrimination was a motivating factor in the defendant's adverse employment action. If so, the presence of additional legitimate motives will not entitle the defendant to summary judgment. Therefore, evidence of additional motives, and the question whether the presence of mixed motives defeats all or some part of plaintiff's claim, are trial issues, not summary judgment issues. Thus, Desert Palace, a decision in which the Supreme Court decided only a mixed motive jury instruction issue, is an inherently unreliable basis for district courts to begin ignoring this Circuit's controlling summary judgment precedents. For concrete evidence confirming that Desert Palace did not forecast a sea change in the Court's thinking, we need look no further than Raytheon Co. v. Hernandez, 540 U.S. 44, 124 S.Ct. 513, 517-18 & n. 3, 157 L.Ed.2d 357 (2003), a post- Desert Palace decision in which the Court approved use of the McDonnell Douglas analysis at the summary judgment stage.

McDonnell Douglas and most subsequent cases in which the Supreme Court has applied McDonnell Douglas came to the Court on a trial record, not a summary judgment record. Prior to Desert Palace, in two recent cases involving the sufficiency of the plaintiff's evidence at trial, the Court held that a finding of pretext does not compel judgment for the plaintiff, St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), but conversely, that the plaintiff's prima facie case combined with sufficient evidence of pretext may permit the jury to find unlawful discrimination, Reeves, 530 U.S. at 148, 120 S.Ct. 2097. Hicks and Reeves are far more pertinent to our summary judgment analysis than Desert Palace, particularly because the Court reiterated the principle that the McDonnell Douglas burden-shifting analysis is not the only way for a plaintiff to prove unlawful

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discrimination: "Proof that the defendant's explanation is unworthy of credence [i.e., pretextual] is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive." Reeves, 530 U.S. at 147, 120 S.Ct. 2097.

We have long recognized and followed this principle in applying McDonnell Douglas by holding that a plaintiff may survive the defendant's motion for summary judgment in one of two ways. The first is by proof of "direct evidence" of discrimination. Direct evidence in this context is not the converse of circumstantial evidence, as many seem to assume. Rather, direct evidence is evidence "showing 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 adverse employment action. Thomas v. First Nat'l Bank of Wynne, 111 F.3d 64, 66 (8th Cir. 1997). Thus, "direct" refers to the causal strength of the proof, not whether it is "circumstantial" evidence. A plaintiff with strong (direct) evidence that illegal discrimination motivated the employer's adverse action does not need the three-part McDonnell Douglas analysis to get to the jury, regardless of whether his strong evidence is circumstantial. But if the plaintiff lacks evidence that clearly points to the presence of an illegal motive, he must avoid summary judgment by creating the requisite inference of unlawful discrimination through the McDonnell Douglas analysis, including sufficient evidence of pretext. See, e.g., Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 971 (8th Cir. 1994). This formulation is entirely consistent with Desert Palace. Thus, we conclude that Desert Palace had no impact on prior Eighth Circuit summary judgment decisions. 2

In this case, Griffith has produced no strong (direct) evidence that racial or ethnic discrimination motivated any alleged adverse employment action against him. While he presented co-worker testimony that Chief Wakeham made insensitive remarks about African American and women employees on other occasions, Griffith presented no evidence that Chief Wakeham, Assistant Chief Cohoon, or any other City decisionmaker ever uttered a single negative racial remark about Griffith's Hispanic background. Thus, the requisite causal link between remarks reflecting racial or gender bias and actions taken against Griffith is lacking. See Simmons v. Oce-USA, Inc., 174 F.3d 913, 915-16 (8th Cir. 1999). In these circumstances, Griffith must produce sufficient circumstantial evidence of illegal discrimination under the McDonnell Douglas paradigm--by presenting a prima facie case of intentional discrimination plus sufficient evidence that one or more of the City's

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proffered nondiscriminatory reasons is a pretext for unlawful discrimination.

II. The Merits.

On appeal, Griffith surrounds his specific allegations with a broad ranging attack on work conditions and employee relations in the Des Moines Fire Department. We will ignore this polemic and limit our discussion to Griffith's specific claims, stating the relevant facts as pertinent to each.

1. Discriminatory Leave of Absence.

In December 1999, Griffith was charged with three counts of third degree sexual abuse, including one charge of abusing a minor. On the day the Des Moines Register published a story headlined, "Fireman Charged For Alleged Abuse," Griffith through his attorney requested an unpaid leave of absence from the Fire Department, which Chief Wakeham granted. In May 2000, Griffith pleaded guilty to lesser offenses. He was given a suspended sentence and probation on conditions that included avoiding contact with the victim. The City then allowed Griffith to return to work. On appeal, he argues that he was the victim of disparate treatment because the City did not take action for nine months when a white firefighter was charged with sex abuse in 1998. This contention is without merit. It is uncontested that Griffith requested the leave of absence.

2. Failure To Retrain upon Griffith's Return.

When Griffith returned to work in May 2000, he believed that his firefighting skills had deteriorated during his leave of absence. He declined one or more emergency assignments, asked for additional...

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