686 F.3d 948 (8th Cir. 2012), 11-2901, Bone v. G4S Youth Services, LLC

• Citation: 686 F.3d 948
• Opinion Judge: GRUENDER, Circuit Judge.
• Party Name: Toni BONE, Appellant, v. G4S YOUTH SERVICES, LLC; Todd Speight, Appellees.
• Attorney: Lucien Ramseur Gillham, argued, Benton, AR, for appellant. Khayyam M. Eddings, argued, Sherri L. Robinson, AG, on the brief, Little Rock, AR, for appellees.
• Judge Panel: Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
• Case Date: July 30, 2012
• Court: United States Courts of Appeals, U.S. Court of Appeals — Eighth Circuit

Page 948

686 F.3d 948 (8th Cir. 2012)

Toni BONE, Appellant,

v.

G4S YOUTH SERVICES, LLC; Todd Speight, Appellees.

No. 11-2901.

United States Court of Appeals, Eighth Circuit.

July 30, 2012

Submitted: June 13, 2012.

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Lucien Ramseur Gillham, argued, Benton, AR, for appellant.

Khayyam M. Eddings, argued, Sherri L. Robinson, AG, on the brief, Little Rock, AR, for appellees.

Before LOKEN, GRUENDER, and BENTON, Circuit Judges.

GRUENDER, Circuit Judge.

Toni Bone appeals the district court's ¹ grant of summary judgment in favor of her employer, G4S Youth Services, LLC (" G4S" ), and her supervisor, Todd Speight, on Bone's claims that they terminated her employment based on her race, age, and use of family medical leave. For the reasons that follow, we affirm.

I. BACKGROUND

G4S began operating the Alexander Juvenile Assessment and Treatment Center (" AJATC" ), a youth detention center, in January 2007 under a contract with the Arkansas Department of Human Services Division of Youth Services (" DYS" ). G4S hired Toni Bone in March 2007 as the education director at AJATC. Before she was hired, Bone was interviewed by G4S's chief executive officer, Kerry Knott, G4S's head of education, Jerry Neely, and G4S's facility director for AJATC, Todd Speight. Bone, like Knott and Neely, is Caucasian and was older than forty when she was hired. Before coming to G4S, Bone was the special education supervisor at DYS. In that position, she oversaw special education at six of the eleven juvenile detention facilities in Arkansas, including AJATC. One of her responsibilities at DYS was to oversee compliance with a Corrective Action Plan (" CAP" ) created pursuant to a settlement agreement between DYS and the United States Department of Justice. Once at G4S, Bone worked under Neely to set up an education program at AJATC that complied with the CAP, but she also reported directly to Speight.

It is undisputed that Bone was a valued employee for the first seven months of her employment with G4S. She had a positive working relationship with both Neely and Speight. In October 2007, Bone received a positive performance review from Speight, obtaining a rating of 3.7 out of 4. AJATC achieved several educational goals during this time, and Bone received praise from G4S and DYS for the progress. During this time, no one from DYS came to AJATC to oversee or monitor the special education program at AJATC. In November 2007, DYS hired Valecia Pumphrey as its education director and Mary Steele as Bone's successor as special education supervisor. Like Bone before her, Steele was charged with overseeing compliance with the CAP. Soon thereafter, Steele began to visit AJATC and monitor Bone's progress with the special education program. Bone previously had been Steele's supervisor when they both worked in the Little Rock School District. Pumphrey and Steele quickly experienced problems communicating with Bone.

According to Pumphrey and Steele, Bone told them in regulatory meetings in November 2007, December 2007, and January 2008 that all teachers at AJATC had received " due process training" in August 2007 as required by the CAP. Steele relayed this information to state officials at the Arkansas Department of Education (" ADE" ). These officials requested documentation to confirm the training, and Bone promised to provide it to Steele. After Bone failed to provide the documentation,

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Steele contacted the training provider and determined that only one teacher received the training required by the CAP. Steele testified that she felt like Bone was telling her what Bone thought Steele wanted to hear instead of the truth, causing Steele to lose trust in Bone. Steele notified Speight and Neely that she had provided false information to ADE officials in reliance on Bone's representations. G4S placed Bone on paid administrative leave while it investigated Steele's accusation. In her deposition, Bone testified that she never told Steele that all teachers had been trained but merely told her that all teachers who were available that day had been trained. Bone claimed that her statement was true because only one teacher was available that day. G4S indicated that it would have suspended or terminated Bone if it had determined that she lied to Steele regarding the CAP training, but it never made such a determination.

Shortly thereafter, G4S created a new special education supervisor position separate from that of education director. Speight asked Bone whether she wanted to continue as education director or as special education supervisor. Bone chose the special education supervisor position because that was her area of expertise. The change became effective on February 3, 2008. Although Bone was no longer responsible for the entire educational program at AJATC, her salary remained the same. G4S hired Dr. William Thomas, a seventy-three-year-old African-American man, to fill the education director position. Dr. Thomas had twenty-five years of experience as a school superintendent and received a higher salary than Bone.

In March 2008, Bone underwent shoulder surgery while on paid leave for spring break. She took additional paid leave the following week to recover. According to Bone, Speight was wonderful to her regarding the surgery, he gave her advice based on his experience with the same surgery, and G4S even sent her flowers. Bone's doctor cleared her to return to work on April 1, 2008 with the restriction that she could not use her right arm. Bone emailed Speight to inform him that she could not be hit or bumped in the shoulder. One day after she returned to work, G4S required Bone to substitute temporarily for an absent teacher.

Steele at DYS continued to have problems with Bone after Bone's responsibilities were limited to special education. Steele testified that Bone repeatedly refused Steele's requests and resisted making any changes. On April 10, 2008, ADE officials informed Steele that the parental rights of the mother of an AJATC student had been terminated. Steele instructed Bone to appoint a surrogate parent for the student. Bone responded that she could not comply without a copy of the court's parental-rights termination order. Steele instructed Bone not to hold a special education conference for the student until Steele could obtain a copy of the termination order and appoint a surrogate parent. Three days later with no surrogate parent appointed, Bone conducted a special education conference for the student despite Steele's instructions. Steele reported her concerns about Bone to G4S. On May 7, 2008, Knott met with Bone and Speight. Knott gave Bone the option to resign in lieu of her employment being terminated. Bone signed a letter of resignation that day. G4S hired Misty Hunt, a forty-two-year-old Caucasian woman, to replace Bone.

Bone filed a complaint in September 2008 with the Equal Employment Opportunity Commission (" EEOC" ) and later received a right-to-sue letter. In August 2009, Bone brought this lawsuit against G4S, Speight, Steele, Pumphrey, and DYS.

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Bone alleged that she was terminated based on her race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and in violation of the Arkansas Civil Rights Act (" ACRA" ), Ark.Code Ann. § 16-123-101 et seq. She also alleged that the termination was based on her age in violation of the Age Discrimination in Employment Act (" ADEA" ), 29 U.S.C. § 621 et seq., in retaliation for engaging in protected speech in violation of 42 U.S.C. § 1983 and ACRA, and in violation of her rights under the Family and Medical Leave Act (" FMLA" ), 29 U.S.C. § 2601 et seq. After the close of discovery, the district court granted the defendants' motions for summary judgment on all counts. The court concluded that Bone had not established pretext in the race and age claims, that Bone had not engaged in protected speech, and that Bone did not establish that G4S interfered with or retaliated against Bone's exercise of her FMLA rights. Bone appeals solely the grant of summary judgment in favor of G4S and Speight, and solely on her race, age, and FMLA claims.

II. DISCUSSION

Bone contends that the district court erred in granting summary judgment because she provided direct evidence of race and age discrimination and, alternatively, demonstrated that G4S's legitimate, non-discriminatory reason for terminating her employment was merely a pretext for intentional discrimination on the basis of race and age. She also contends that the district court erroneously granted summary judgment on her FMLA claims. We review the district court's grant of summary judgment de novo. Taylor v. St. Louis Cnty. Bd. of Election Comm'rs, 625 F.3d 1025, 1026 (8th Cir.2010) (per curiam). " Summary judgment is appropriate where, viewing the record in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Id. " There is no ‘ discrimination case exception’ to the application of summary judgment...." Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir.2011) (en banc).

Bone can survive summary judgment on her race and age discrimination claims either by providing direct evidence of discrimination or by creating an inference of unlawful discrimination through the McDonnell Douglas ² analysis. See Gibson v. Am. Greetings Corp., 670 F.3d 844, 855 (8th Cir.2012) (" 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. ....’ " (quoting Haigh v. Gelita USA, Inc., 632 F.3d 464, 468 (8th Cir.2011))). " We also note that we analyze [Bone's] Title VII and Arkansas Civil Rights Act claims under the...