Johnson v. At & T Corp.

• Decision Date: 07 September 2005
• Docket Number: No. 04-2305.,04-2305.
• Citation: 422 F.3d 756
• Parties: Michael JOHNSON, Plaintiff-Appellant, v. AT & T CORP., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

422 F.3d 756

Michael JOHNSON, Plaintiff-Appellant, v. AT & T CORP., Defendant-Appellee.

No. 04-2305.

United States Court of Appeals, Eighth Circuit.

Submitted: February 17, 2005.

Filed: September 7, 2005.

Sarah A. Brown, argued, Lenexa, Kansas, for appellant.

Brian N. Woolley, argued, Kansas City, Missouri (Patrick M. Gavin, on the brief), for appellee.

Before WOLLMAN, HANSEN, and BENTON, Circuit Judges.

HANSEN, Circuit Judge.

After being fired from his job, Michael Johnson filed suit against his employer, AT & T Corporation, alleging race and age discrimination in violation of 42 U.S.C. § 1981 (2000), Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e2000e-17 (2000), and the Missouri Human Rights Act ("MHRA"), Mo.Rev.Stat. § 213.010-213.137 (2000). The district court¹ granted AT & T's motion for summary judgment and dismissed the case. Johnson appeals the district court's judgment. After careful review, we affirm.

I.

In 2001 Johnson, a forty-year-old African American male, worked as an account representative for the National Telemarketing Agency ("NTA"), a division of AT & T with a facility in Lee's Summit, Missouri. Another AT & T department, the Consumer Sales and Service Center, was also located at the Lee's Summit facility. On the evening of July 6, 2001, a receptionist at the Consumer Sales and Service Center answered the phone and received a bomb threat. She reported the threat to AT & T's corporate security team and to the Lee's Summit Police Department. The facility was evacuated and searched, but no bomb was found. The police report for the July 6 incident states that the AT & T receptionist who took the call believed that the caller was an African American male between the ages of thirty and forty. Johnson was not at work on that day. Because the July 6 call was made to a number with which mainly AT & T employees would be familiar, there was a suspicion that the caller was an AT & T employee. On the morning of July 7, 2001, another receptionist at the Consumer Sales and Service Center received a bomb threat over the phone. The building was again evacuated and searched, but no bomb was found. Michael Johnson was at work on July 7, allegedly on the phone with a customer. The police attempted to trace both the July 6 and 7 calls, but they were unsuccessful.

The next weekend, on July 13, 2001, an unidentified male called 911 and reported that he had left a bomb at the AT & T Lee's Summit facility. The Lee's Summit police alerted AT & T, and the facility was again evacuated and searched, but no explosives were uncovered. Michael Johnson was at work at the time the police received the July 13, 2001, bomb threat. AT & T records showed that he was logged into the system and on hold waiting for a customer to be transferred to another AT & T department. The police dispatcher who answered the call said that the caller sounded like an African American male between the ages of thirty and forty, that he spoke in a calm and slow manner, and that he sounded educated. The police were also able to ascertain that the call came from a cell phone. The next day, July 14, 2001, an unidentified male caller made two calls to 911. The first call was made that morning, and the caller said that he had overheard an AT & T employee named Jeffrey Wright discussing his plans to bomb the AT & T facility. The caller said that Wright was an Hispanic male between the ages of thirty and forty. In the second call, about three hours later, a male caller reported that Jeffrey Wright planned to detonate the bomb between 2:30 and 3:30 that afternoon. Both of these July 14 calls were received before Johnson arrived at work for the day.

In the days following the bomb threats, both the police and the corporate security managers at AT & T investigated the bomb threats. Several people at AT & T checked to see if there were any current employees named Jeffrey Wright and none were found.² On July 18, 2001, AT & T was provided with a tape containing a copy of the 911 calls made on July 13 and July 14. Neither Craig Johnson, center director for the National Telemarketing Center ("NTC"), nor Steve McCord, staff manager for the NTC, heard anything that helped them identify the caller. The two receptionists who had received the July 6 and July 7 bombs threats also did not recognize the voice on the 911 tape. They believed that the 911 caller was a different voice than the voice that they had heard on July 6 and 7.

McCord gave the tape to Ronald Johnson, a sales manager for the NTC, who played the tape for his sales team leaders during their weekly staff meeting that morning. Sales team leaders supervised account representatives such as Michael Johnson. No other sales managers were provided with a copy of the tape to play for their sales team leaders. Of the twelve AT & T employees present at the staff meeting, nine³ recognized the voice as that of Michael Johnson, including Michael Johnson's sales team leader, Lloyd Lopez. Tracy Randolph was the first to recognize the voice. As the first 911 call played, she stated to the group, "That sounds like Michael Johnson." (J.A. at 357.) Including Ronald Johnson, eight others agreed with her. All of those who identified the appellant's voice had worked with him or listened to him while he spoke on the phone with customers. Later, after litigation was initiated, the nine employees who had identified Johnson's voice all gave deposition testimony that they had not been informed before hearing the tape that the police dispatcher had identified the 911 caller as a black male between the ages of thirty and forty.

Ronald Johnson informed Craig Johnson that several employees had identified the voice on the tapes. Over the next few days, all nine employees composed and typed statements in which they reported that they were fairly confident that the voice on the tape was that of Michael Johnson. The statements were witnessed by Patty Saccone and/or Steve McCord. When the appellant returned to work on Saturday, July 21, 2001, he was called to a meeting with AT & T Corporate Security Manager Patty Saccone. Much of what occurred during his meeting with Saccone is disputed. Johnson alleges that he was not initially told that it was a disciplinary meeting or that he was suspected of having made the bomb threats and that Saccone spoke to him in an intimidating and aggressive manner. He also alleges that Saccone told him that she had traced the calls to his cell phone, that the voice on the tape was that of a black male and AT & T knew that it was him, and that he should just tell her why he had done it. Johnson repeatedly denied any involvement in the bomb threats. Nevertheless, Craig Johnson decided to terminate Michael Johnson, relying on the identifications of Michael Johnson by the nine employees.

After Johnson was terminated, the police were able to trace the cell phone numbers used to call 911 on July 13 and 14, and neither number was connected to Johnson. Johnson's cell phone records also did not show any calls to AT & T or to 911 on the dates and times in question. Two of his coworkers, Kendra Thomas and Tyshecia Baskin-McGrone, submitted affidavits in March 2004 stating that they each saw Johnson at work on July 13 and July 14, 2001, that they talked to him during the evacuations, and that they never heard or saw him use his cell phone at work.

After obtaining a right-to-sue letter from the Missouri Commission on Human Rights and the Equal Employment Opportunity Commission, Johnson filed suit in federal court in September 2002. On April 5, 2004, the district court granted AT & T's motion for summary judgment. Applying the burden-shifting analysis to the race discrimination claim, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the court held that Johnson had not established the fourth prong of the prima facie case because he had failed to explain his assertions or support his assertions with evidence permitting an inference of unlawful discrimination. Next the court stated that even if Johnson had established all four prongs of the prima facie inquiry, AT & T had articulated a legitimate, nondiscriminatory reason for terminating Johnson-AT & T believed that Johnson had violated its code of conduct by making bomb threats—and Johnson had failed to show that AT & T's proffered reason was pretextual. As to Johnson's claim of age discrimination, the court found that he had established a prima facie case, but the claim again failed because AT & T had articulated a legitimate and nondiscriminatory reason for the termination, and Johnson had not shown pretext. The court denied Johnson's motion to alter or amend the judgment, and Johnson now appeals.

II.

We review de novo a district court decision granting a motion for summary judgment, using the same standard as the district court and construing the record in the light most favorable to Johnson, the nonmoving party. Chambers v. Metro. Prop. and Cas. Ins. Co., 351 F.3d 848, 852 (8th Cir.2003). Summary judgment is appropriate only if the evidence establishes that there exists no genuine issue of material fact and that the moving party, AT & T, is entitled to judgment as a matter of law.⁴ Id. at 853; Fed.R.Civ.P. 56(c).

Because Johnson relies upon circumstantial evidence of discrimination, we assess both the Title VII race discharge claim and § 1981 discharge claim using the burden-shifting framework of McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. See Kincaid v. City of Omaha, 378 F.3d 799, 806 (8th Cir.2004) (stating that the McDonnell Douglas analysis applies to Title VII and § 1981 claims); Putman v. Unity Health Sys., 348 F.3d 732, 735 n. 2 (8th Cir.2003) (same). In order to establish a prima facie case of race discrimination under McDonnell Douglas, Johnson must show that (1) he belongs to a protected class; (2) he was qualified for his position as an account representative; (3) he was...