Pope v. Esa Services, Inc.

• Decision Date: 29 June 2005
• Docket Number: No. 04-1848.,04-1848.
• Citation: 406 F.3d 1001
• Parties: Andre POPE, Appellant, v. ESA SERVICES, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

406 F.3d 1001

Andre POPE, Appellant, v. ESA SERVICES, INC., Appellee.

No. 04-1848.

United States Court of Appeals, Eighth Circuit.

Submitted: December 17, 2004.

Filed: May 10, 2005.

Rehearing and Rehearing En Banc Denied June 29, 2005.^*

COPYRIGHT MATERIAL OMITTED

Clayton D. Halunen, argued, Minneapolis, MN, for appellant.

Steven R. Anderson, argued, Minneapolis, MN (Holly M. Robbins, on the brief), for appellee.

Before BYE, JOHN R. GIBSON, and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Andre Pope ("Pope") appeals the decision of the district court¹ granting summary judgment to ESA Services, Inc. ("ESA"), on his claims of employment discrimination based on race, retaliation, violation of the Minnesota Whistleblower Act, and defamation. On appeal, Pope contends that there was sufficient material evidence on each claim such that a reasonable jury could find in his favor. We affirm the district court's summary judgment in favor of ESA on all claims.

I. BACKGROUND

On summary judgment "[t]he burden of demonstrating that there are no genuine issues of material fact rests on the moving party." Winthrop Resources Corp. v. Eaton Hydraulics, Inc., 361 F.3d 465, 468 (8th Cir.2004). The non-moving party, however, must still "present[] evidence sufficiently supporting the disputed material facts that a reasonable jury could return a verdict in [his] favor." Gregory v. City of Rogers, Ark., 974 F.2d 1006, 1010 (8th Cir.1992). Because Pope is the non-moving party, "we must view the evidence and the inferences that may be reasonably drawn from the evidence in the light most favorable" to him. Winthrop Resources, 361 F.3d at 468.

Andre Pope is a black male of Liberian descent. In January 2001, Pope began working as a general manager in training for ESA, a nationwide chain of hotels. Shortly thereafter, he became general manager of ESA's Bloomington, Minnesota hotel. Pope initially performed his duties in a satisfactory manner.

Early in his tenure as general manager of the Bloomington hotel, Pope claims to have discovered that ESA had hired several illegal aliens based on falsified documents, which he reported to his district managers, Trevor Dulka and later, John Hulet.

In the summer of 2001, Pope attended a regional meeting in Chicago. Pope formed the impression that his regional manager, Gary Rumsey, ignored him and some other black managers. He alleges that Rumsey took several white managers to lunch and did not include Pope and two other black managers from his region.

Around the same time as the Chicago conference, ESA began soliciting applications for a district-manager-in-training position in the Bloomington area. Pope initially sought the advice of Dulka, his district manager, who told him that he should have one year of experience as a general manager before being promoted to managing multiple hotels. Pope inquired of both Susan Rebi in ESA's Chicago office and Rumsey about the position, prefacing his inquiries with the observation that there were no black district managers in the region. Rumsey told Pope that he would talk to Dulka to get a recommendation about whether Pope was ready for a promotion.

Rumsey talked to Dulka about the possibility of promoting Pope to the position of district manager in training. Dulka advised Rumsey that he did not think Pope was ready to manage multiple hotels. In August 2001, Rumsey hired John Hulet, a white male who previously was an area manager for a grocery-store chain, for the district-manager-in-training position. Rumsey hired Hulet because he felt he had the right qualifications for the position; in particular, Hulet had experience managing multiple grocery store locations, which Rumsey considered very important.

During a December inspection of the Bloomington hotel, Rumsey found the state of the rooms unacceptable. He gave the property a failing score and gave Pope a midrange rating of "Effective." Hulet met with Pope and explained the problems he and Rumsey found with the hotel. In a follow-up inspection, Hulet noted improvements but still found the rooms unacceptable.

Shortly after Hulet's inspection, Pope requested and was allowed to take off the week of December 29, 2001 through January 4, 2002. Hulet saw this as an opportunity to work with Phil Current, assistant manager of the Bloomington hotel, who recently had done poorly on an assistant-manager test. It was immediately apparent to Hulet, however, that Current's poor performance on the assistant-manager test was due in large part to Pope's inadequate training of Current. As Hulet began to provide Current with training, Hulet found that the Bloomington hotel was still in poor condition. For example, Hulet found poor filing, incomplete employee files, incomplete petty-cash receipts and expired gift certificates which Pope failed to give his employees as a gift from ESA. Hulet also discovered that Benedict Brown, a front-desk representative at the Bloomington hotel, was due to earn overtime pay if he were to complete his scheduled nine-hour shift on January 4. Finally, Hulet discovered a shortage of $18.18 in the petty cash and $246.00 from the back-up drawer. In fact, on December 31, 2001, Hulet drafted an ESA Counseling Report, where he wrote, "I discovered funds missing from the petty cash fund and the second drawer fund, during an audit at site # 733." The draft Counseling Report indicates that the action to be taken was termination. However, no action was taken at that time to effect Pope's termination. Rather, the record reflects that Hulet chose to further investigate the situation.

In a January 3, 2002, telephone conversation with Current, Pope claimed that he had taken the money from the back-up drawer to buy office supplies. Pope also told Current that he would "fix" the problem of paying overtime to Brown and replace him at 7:00 p.m. the next day. Hulet asked to speak to Pope, but Pope refused. After the conversation was recounted to Hulet, he construed Pope's statement as meaning that Brown would continue to work until 11:00 p.m. with the time worked after 7:00 p.m. to be added to a subsequent pay period, thereby improperly avoiding a claim by Brown to overtime pay.

Hulet immediately reported his findings to Rumsey and ESA's human resources department. Hulet testified that he talked to Rumsey "about the fact that we are missing money in petty-cash, that we are missing money in the second drawer, that our cash overages and shortages aren't being documented, that the AGM ... hadn't been trained. He didn't even know what was going on at the property." An ESA Communication Summary opened by Kristin Long on January 4, 2002 stated:

DM, John Hulet, called regarding termination of GM, Andre Pope.... [Hulet] conducted an audit of monies on property and found $260 (approx.) missing consistently from petty-cash. AGM [Phil Current] stated that [Pope] loaned previous [assistant general manager] $200 for moving costs when leaving Company. [Pope] has not completed a cash over/short form in six months. In addition, [Current] called [Pope] to alert him to the fact that an employee, if worked scheduled 9 hour shift, would be eligible for overtime. [Pope] advised [Current] to stop the employee's payroll at 40 hours and record the extra time on the next pay period. Advised [Hulet] to confront [Pope] with findings. [Hulet] to then terminate for misconduct. Support decision.

On January 7, 2002, Hulet and Dulka called Pope into a meeting in the hotel's front office in order to confront Pope regarding Current's lack of training, the cash shortages and the alleged timecard fraud. Pope claims that other hotel employees were able to overhear the ensuing discussions.

In response to the petty-cash issue, Pope provided a partial accounting of the money by producing purchased office supplies, receipts for those office supplies, and the remaining cash.² Hulet was concerned about Pope's explanation, in part, because Pope claimed to have purchased office supplies on January 3, but the receipt was dated January 5.

The meeting was adjourned for a short time so that Hulet and Dulka could meet privately. When the meeting resumed Pope was questioned about the alleged timecard fraud and a six-minute discrepancy on Brown's January 4 timecard. As to the alleged timecard fraud, Pope claimed that he relieved Brown at 7:00 p.m. the night before. Hulet and Dulka were not convinced by Pope's explanation; instead, they relied on the fact that Brown had not logged out of the computer system until 11:00 p.m. and that Brown's name was on the top of the cashier's report envelope that had been started at the beginning of his shift and submitted at the end of the day. In response to Hulet's inquiry about the six-minute discrepancy on Brown's timecard, Pope responded, "Who cares."

At this point, Hulet decided to terminate Pope's employment with ESA. The decision was based on the accumulation of issues Hulet had discovered: Pope's poor management as reflected in the earlier hotel inspection by Rumsey and Pope's failure to train Current; the undocumented shortage in the petty cash and in the back-up drawer; and the alleged timecard fraud involving Brown. Pope's dismissive attitude and failure to adequately explain the discrepancies resulted in Hulet's decision to terminate Pope's employment with ESA.

In July 2002, Pope filed a complaint alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964 and the Minnesota Human Rights Act ("MHRA"), violation of the Minnesota Whistleblower Act, and defamation. ESA moved for summary judgment. In opposing ESA's motion for summary judgment, Pope asserted that his complaint also included claims of retaliation under Title VII and the MHRA. In its decision on the summary-judgment motion, the district court noted that although the retaliation claims were not properly pled, it would consider them. The district court concluded that Pope failed to demonstrate a disputed...