Carraher v. Target Corp.

• Citation: 503 F.3d 714
• Decision Date: 19 September 2007
• Docket Number: No. 06-3857.,06-3857.
• Parties: Richard CARRAHER, also known as Tom Carraher, Plaintiff-Appellant, v. TARGET CORPORATION, a Minnesota Corporation, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

503 F.3d 714

Richard CARRAHER, also known as Tom Carraher, Plaintiff-Appellant, v. TARGET CORPORATION, a Minnesota Corporation, Defendant-Appellee.

No. 06-3857.

United States Court of Appeals, Eighth Circuit.

Submitted: June 14, 2007.

Filed: September 19, 2007.

Steve G. Heikens, argued, Minneapolis, MN, for appellant.

Joseph G. Schmitt, argued, Donald M. Lewis and Nicole J. Druckrey, on the brief, Minneapolis, MN, for appellee.

Before MURPHY, BEAM, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Richard "Tom" Carraher appeals from the entry of summary judgment on his age discrimination claim against Target Corporation. Carraher alleges that Target terminated his employment in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and the Minnesota Human Rights Act (MHRA), Minn.Stat. §§ 363A.01-.41. On appeal, Carraher contends that the district court¹ erred in its pretext analysis and did not view the evidence in the light most favorable to him. We affirm.

I.

Target hired Carraher, then 56 years old, as a recruiter in June 2003. In September 2003, Carraher became an executive recruiter for Target's southern region, which stretches from Texas to Florida. Carraher, however, worked in Minneapolis, Minnesota.

In August 2004, Dan Caspersen became Target's Vice President for Stores Human Resources. Caspersen sought to "decentralize" Target's executive recruiting by moving recruiters to the regions for which they were recruiting. As a result of the decentralization, Carraher's position was relocated to Texas, the region for which he primarily recruited. When Carraher's supervisor, Kim Strong, asked Carraher if he would be willing to relocate, Carraher informed her that he preferred to remain in Minneapolis and would seek another position with Target there.

After unsuccessfully seeking four different recruiting positions at Target's Minneapolis headquarters, Carraher e-mailed Strong on January 24, 2005, and informed her that he was interested in the possibility of relocating to Texas. On January 27, 2005, Carraher met with Strong to discuss the issue. According to Carraher, Strong presented him with only one option at that meeting: termination with severance. Strong asserts that they discussed three options: severance, the prospect of Carraher relocating to Texas, and a different recruiting position, located in Minneapolis, that Carraher had originally proposed.

On February 2, 2005, Carraher sent a letter to Todd Blackwell, Target's Executive Vice President for Human Resources, alleging that his impending termination was motivated by age bias. Carraher failed to return to work after February 4, 2005. On March 4, 2005, Target terminated his employment.

On October 11, 2005, Carraher filed suit alleging age discrimination in violation of the ADEA and the MHRA, and retaliation.² The district court granted summary judgment to Target on all Carraher's claims. Carraher appeals.

II.

Carraher contends that the district court erred by confusing the two separate prongs of the pretext analysis, see Haas v. Kelly Servs., Inc., 409 F.3d 1030, 1035 (8th Cir.2005) (discussing prongs), and by granting summary judgment to Target despite direct evidence that Target's proffered reason for his termination was false and circumstantial evidence that Target discriminated against him because of his age. Carraher further contends that the district court did not view the evidence in the light most favorable to him.

We review a district court's grant of summary judgment de novo. Wittenburg v. Am. Express Fin. Advisors, Inc., 464 F.3d 831, 836 (8th Cir.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 2936, 168 L.Ed.2d 262 (2007). Summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We must view the evidence, and the inferences that may be reasonably drawn from it, in the light most favorable to the nonmoving party. Williams v. City of Carl Junction, Mo., 480 F.3d 871, 873 (8th Cir.2007).

The ADEA and the MHRA both forbid an employer from taking adverse employment actions against an employee because of his age. 29 U.S.C. § 623(a)(1); Minn.Stat. § 363.03, subd. 2; see Chambers v. Metro. Prop. & Cas. Ins. Co., 351 F.3d 848, 855 (8th Cir.2003) (age discrimination claims under the MHRA are analyzed in the same fashion as claims under the ADEA). To establish a claim of intentional age discrimination, a plaintiff may present direct evidence of such discrimination or may prove his claim through circumstantial evidence. See Mayer v. Nextel W. Corp., 318 F.3d 803, 806 (8th Cir. 2003). "[D]irect 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." Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir.2004) (quoting Thomas v. First Nat'l Bank of Wynne, 111 F.3d 64, 66 (8th Cir.1997)). Where the plaintiff presents only circumstantial evidence of discrimination, as Carraher does in the instant case, we apply the familiar burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green. See 411 U.S. 792, 800-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).³

Under McDonnell Douglas, the plaintiff must first establish a prima facie case of discrimination. In the instant case, Target concedes that Carraher has established a prima facie case with respect to the termination of his employment.⁴

Because Carraher has established a prima facie case, Target must articulate a legitimate non-discriminatory reason for Carraher's termination. See Haas, 409 F.3d at 1035. Target contends that it terminated Carraher in March 2005 after Carraher walked off the job in February and failed to return to work or otherwise inform his supervisor of his plans. Accordingly, Target has proffered a legitimate, non-discriminatory reason for Carraher's termination, and "the presumption of unlawful discrimination disappears. . . ." See Thomas v. Corwin, 483 F.3d 516, 529 (8th Cir.2007).

The burden then falls to Carraher, who can avoid summary judgment if the evidence creates (1) a fact issue as to whether Target's proffered reason is pre-textual and (2) a reasonable inference that age was a determinative factor in his termination. See Haas, 409 F.3d at 1035. In some cases, "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

In an attempt to establish that Target's proffered reason for his termination is pretextual, Carraher provides contradictory explanations for his absence. In both his opposition to summary judgment and opening brief, Carraher contends that he was using accrued vacation during the month of February 2005 and that he planned to return in March.⁵ In his reply brief, Carraher provides a second explanation: he was absent because he "understood from the severance package that he was directed to stop working on site as of February 11 and terminated effective March 4." In a further attempt to create a fact issue, Carraher presents a letter from Strong that, he contends, terminates him for rejecting the severance agreement.

Carraher abandoned his first explanation for his absence in the penultimate page of his reply brief after Target noted, without contradiction, that Strong did not give Carraher approval to use his vacation and that Carraher had not accrued enough vacation to take an entire month off. As for Carraher's second explanation, he did not raise it before the district court in his opposition to summary judgment. Accordingly, we will not consider it. See Winthrop Res. Corp. v. Eaton Hydraulics, Inc., 361 F.3d 465, 469 (8th Cir.2004) ("We review de novo only the evidence and arguments that were before the district court when it made its determination in the [summary judgment] order[] challenged on appeal."). We do, however, note that this explanation does not account for Carraher's unexcused one-week absence between February 4, the last day he reported to work, and February 11.

Carraher's contention that he was terminated because he had not signed the severance agreement does not create a fact issue as to whether Target's proffered reason is pretextual because it is not supported by the evidence. The letter by Strong to Carraher on March 2, 2005, does not give a reason for his termination; instead, it informs Carraher of the date when his salary and benefits will expire. The letter informs Carraher that Target has kept him on the payroll "[a]s a result of the consideration period," but that because he has rejected the severance agreement, "your last actual date on the payroll will be March 4, 2005." Thus, it is not inconsistent with Target's proffered reason.

Also, Carraher's contention that Strong withdrew two previously available options at the January 27 meeting does not explain how or why the withdrawal undermines the veracity of Target's proffered reason for Carraher's termination. Further, it is undisputed that Target first offered the recruiting job in Texas to Carraher and that he initially declined it because he preferred to stay in Minneapolis. Accordingly, Carraher has not created a fact issue as to whether Target's proffered reason is false, and he cannot carry his burden. See Reeves, 530 U.S. at 148, 120 S.Ct. 2097; Haas, 409 F.3d at 1035. Although we may end our analysis here, we will address the second prong of the test.

As for the second prong, Carraher concedes he has no direct evidence that age was a determinative factor in Target's...