Davis v. Fleming Companies, Inc., 94-3431

• Decision Date: 08 June 1995
• Docket Number: No. 94-3431,94-3431
• Citation: 55 F.3d 1369
• Parties: 68 Fair Empl.Prac.Cas. (BNA) 17, 66 Empl. Prac. Dec. P 43,586 Chris DAVIS, Appellant, v. FLEMING COMPANIES, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1369

55 F.3d 1369

68 Fair Empl.Prac.Cas. (BNA) 17, 66 Empl.

Prac. Dec. P 43,586

Chris DAVIS, Appellant, v. FLEMING COMPANIES, INC., Appellee.

No. 94-3431.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 16, 1995.

Decided June 8, 1995.

Michael William Manners, Independence, MO, argued, for appellant.

Ann Mesle, Kansas City, MO, argued (Mark A. Ferguson, on the brief), for appellee.

Before McMILLIAN, Circuit Judge; HEANEY, Senior Circuit Judge; and MORRIS SHEPPARD ARNOLD, Circuit Judge.

HEANEY, Senior Circuit Judge.

Chris Davis filed an action against Fleming Companies, Inc., (Fleming) claiming that his employment was terminated in retaliation for reporting the sexual harassment of another employee, in violation of Title VII and the Missouri Human Rights Act. The district court granted summary judgment for Fleming and Davis appeals. We reverse and remand.

BACKGROUND

Fleming hired Davis as a shipping clerk in September 1983. Beginning in December 1984 Davis received a "4" rating ("commendable") on a five-point scale. In December of 1987 his rating decreased to a "3" ("competent"). In January 1989 he was promoted to warehouse superintendent.

On October 8, 1991, Julie Martin, a management trainee, told Davis about an incident of possible sexual harassment by a Fleming manager, Ed Clark, during a recent company golf outing. Clark outranked Davis in the company hierarchy. Davis reported the incident to the Human Resources Department, in accordance with company policy, but he also disclosed details to others, in violation of the policy. In January 1992 Clark was fired. That same month Davis's performance rating decreased to a "2B" ("marginal"), and he received a lateral transfer to become supervisor of a smaller warehouse. On May 28, 1992, Davis was fired for allegedly poor job performance, leadership, and attitude. He subsequently filed an action for retaliatory discharge under Title VII and the Missouri Human Rights Act. The district court granted summary judgment in favor of Fleming and Davis appeals.

DISCUSSION

In granting summary judgment for Fleming, the district court concluded that Davis had failed to make out a prima facie case of retaliatory discharge because he did not show that a genuine issue of fact existed concerning a causal link between his report of sexual harassment and his termination. In the alternative, the court ruled that even if a prima facie case were made, Fleming had articulated a nonretaliatory, legitimate business reason for Davis's termination, and Davis failed to produce evidence to establish that the company's proffered reason was pretextual. We review de novo a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986).

In reviewing summary judgment we must decide whether the nonmoving party has presented evidence sufficient to show a genuine dispute of material fact, i.e., evidence from which a reasonable jury could return a verdict for the nonmoving party. Id. at 247-48, 106 S.Ct. at 2509-10; Fed.R.Civ.P. 56(c). The nonmovant must present more than a scintilla of evidence and must set forth specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 250, 252, 106 S.Ct. at 2511, 2512. "The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. at 2513.

To establish a prima facie case of retaliatory discharge, Davis must show that he engaged in protected activity under Title VII when he reported the alleged sexual harassment, that he thereafter was terminated, and that the termination resulted from his report of harassment. See White v. McDonnell Douglas Corp., 985 F.2d 434, 437 (8th Cir.1993). It is undisputed that the first two elements of the prima facie case have been satisfied, i.e., that Davis's report of sexual harassment was protected activity under Title VII, 42 U.S.C. Sec. 2000e-3(a), and that he was terminated. To determine the appropriateness of summary judgment, then, we must review the evidence Davis presented to establish a causal connection between his protected activity and his termination by Fleming. If we conclude that Davis has carried his burden to set forth a prima facie case, we address whether as a matter of law Davis's evidence is insufficient to rebut Fleming's assertion that Davis was fired for substandard job performance. See Rath v. Selection Research, Inc., 978 F.2d 1087, 1089-90 (8th Cir.1992) (once employer articulates legitimate business reason for discharge, burden shifts back to employee to prove the proffered reason is pretextual). For both analyses we focus on whether Davis has presented evidence sufficient to support a jury finding that retaliation was the reason for his termination by Fleming.

Courts have recognized the difficulty in disposing of issues of discriminatory or retaliatory intent at the summary judgment stage. "Summary judgments should be sparingly used and then only in those rare instances where there is no dispute of fact and where there exists only one conclusion. All the evidence must point one way and be susceptible of no reasonable inferences sustaining the position of the nonmoving party." Johnson v. Minnesota Historical Soc'y, 931 F.2d 1239, 1244 (8th Cir.1991) (citations omitted); see also Gill v. Reorganized Sch. Dist. R-6, Festus, Missouri, 32 F.3d 376, 378 (8th Cir.1994) (reviewing summary judgment "with caution in employment discrimination cases ... because intent is inevitably the central issue"). "There will seldom be 'eyewitness' testimony as to the employer's mental processes." U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983).

Davis has offered the following evidence to support his position that there was a causal link between his report of harassment and his termination, and that deficient performance was merely a pretext for his termination. He states that prior to his October 8, 1991, report to Human Resources, he had never received complaints about poor job performance. Although his performance rating declined from a "4" to a "3" in 1987, the "3" rating of "competent" nonetheless reflects a fully satisfactory job performance. The company describes its performance category "3" as follows:

This associate is doing a full, complete and satisfactory job. Performance is what is expected of a fully qualified and experienced person in the assigned position.

You would not require significant improvement. If improvement does occur, it's a plus factor for your group's effectiveness. If it does not, you have no reason to complain.

If all your associates were as good, your total group's performance would be completely satisfactory (in your judgment and your manager's, too).

You get few complaints from others with whom the associate's work interfaces.

Errors are few and seldom repeated.

Demonstrates a sound balance between quality and quantity.

Does not spend undue time on unimportant items, neglecting problems or projects that should have priority.

You feel reasonably secure in quoting the associate's inputs or recommendations.

Requires only normal supervision and follow-up and usually completes regular work and projects on schedule.

Has encountered almost all the activity [illegible] of the position and has proved quite capable in each.

You consider the associate a good solid member of your team and feel reasonably secure in making any kind of an assignment within the scope of the job and level.

App. 1143. Davis continued to receive raises while in category "3" as well as a promotion to warehouse superintendent in January 1989. Id. at 1144-49, 1168. He received three letters and a plaque applauding his job performance in April and October 1991. Id. at 1170, 1177, 1178.

On October 23, 1991, a couple of weeks after he reported the possible sexual harassment, Davis was summoned to a meeting at the Kansas City International Airport with Matthew Jonas, president of the company's Kansas City Division; Gary Capshaw, Operations Manager; and Mel Willming, Sr., an executive at Fleming's corporate headquarters in Oklahoma. Deposition of Christopher Davis (May 17, 1994), App. 389. Davis says that Willming told him that the meeting was to discuss his job performance and his "character assassination" of Clark, the perpetrator of the golf course incident. Id. at 391. When asked for specifics, however, Willming told Davis that neither Clark nor Scott Black, Davis's immediate supervisor, had a problem with his performance. Id. Willming also told Davis that Clark thought he would be a good candidate for promotion for two jobs that were opening up in two other cities. Id.

In his deposition Davis asserted that at this airport meeting, Jonas told him that Clark was running the team, and if Davis did not like it, he should get off the team. Id. at 393. Willming told him that the golf course incident never happened, that Davis was skating on very thin ice, that Davis should not have told anyone outside the Human Resources Department about the golf course incident, and that he should see the company counselor. Id. at 394-95, 404. No record of this meeting was put in Davis's personnel file.

A week later, on October 30, 1991, Davis was called in to meet with his supervisor, Scott Black, to discuss his job performance. Black's notes of the meeting, copies of which were sent to Capshaw and Willming, contain some positive comments about Davis's abilities and job performance but also mention some specific areas where he should be making extra efforts in his role as superintendent. Id. at 1164-66....