Janice Wright v. St. Vincent Health System

United States Court of Appeals
For the Eighth Circuit
___________________________

No. 12-3162
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Janice Wright

lllllllllllllllllllll Plaintiff - Appellant

v.

St. Vincent Health System, (originally named as St. Vincent Infirmary Medical Center)

lllllllllllllllllllll Defendant - Appellee
____________

Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
____________

Submitted: May 24, 2013
Filed: September 18, 2013
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Before RILEY, Chief Judge, GRUENDER and BENTON, Circuit Judges.
____________

RILEY, Chief Judge.

Janice Wright sued her former employer, St. Vincent Health System (hospital),
alleging racial discrimination and retaliation in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e, et seq., and 42 U.S.C.
§ 1981. After a two-day bench trial, the district court1 found in favor of the hospital
on all claims. Wright appeals the judgment, arguing the district court’s factual
findings were clearly erroneous. Having jurisdiction under 28 U.S.C. § 1291, we
affirm.

I. BACKGROUND
In November 2007, Janice Wright began working for the hospital as a surgical
technologist.2 In 2008, Wright accepted a newly created position working the night
shift (7:00 p.m. to 5:30 a.m.) in the operating room (OR). Before Wright accepted the
position, two registered nurses, Bill Rieske, a Caucasian man, and Nancy Bell, an
African-American woman, performed most of the duties the hospital asked Wright
to perform. After training Wright and Bell to complete the night duties as a team,
Rieske moved to a weekend shift. When Wright and Bell were not assisting with
emergency surgeries, they cleaned rooms, moved and made surgical beds, stocked
supplies, assembled equipment, and set up operating rooms for the next day’s
surgeries.

A few months after Wright and Bell began working together, Bell suffered an
injury at home that prevented her from coming to work. Other nurses initially
assisted in covering Bell’s shifts in addition to their regular duties, but Wright was
the only employee dedicated to the night shift. The covering nurses carried the phone
and responded to emergencies, but did not help Wright prepare the operating rooms.
After three months, the nurses stopped taking Bell’s shifts. When Bell did not return

1
The Honorable D. Price Marshall, Jr., United States District Judge for the
Eastern District of Arkansas.
2
A surgical technologist assists the surgical team under the supervision of the
surgeon and a registered nurse. Duties include gathering instruments and supplies for
surgery, assisting during surgery, and maintaining a sterile operating environment.

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as expected, Wright was left alone on the night shift to complete all the duties she and
Bell previously shared.

Wright’s performance began to suffer. On September 25, 2008, in response to
a complaint that Wright had not prepared the operating rooms properly on September
23, 2008, Patient Care Coordinator (PCC)3 Darla Tiner, Wright’s direct supervisor,
issued Wright a Counseling/Corrective Action Form (disciplinary form). Wright
explained she was assisting with surgery for several hours on the night in question,
but Tiner believed Wright could have completed her duties during the rest of her
shift. Wright refused to sign the form, and another PCC, Verda Degerald, reported
that Wright became defensive and did not indicate a “desire to correct [her]
behavior.”

After that incident, Tiner prepared a checklist of equipment Wright was
required to ensure was in each operating room. On September 29, 2008, Wright
received a second disciplinary form for failing to complete the checklist on
September 26, 2008. Tiner also noted Wright failed to report orally the events of the
night shift as required.

On October 6, 2008, Tiner and Laurie Voigt, then Interim Director of Surgical
Services, provided Wright a prioritized, written list of duties the PCCs expected
Wright to perform each night. Tiner and Voigt advised Wright that if there were no
further disciplinary issues for three months, they would remove the September 29,
2008, disciplinary form from Wright’s file. When Wright asked to be returned to the
day shift, Tiner and Voigt advised Wright the staffing matrix was being evaluated and
no permanent changes would be made until further notice.

3
The hospital designated some surgical nurses as PCCs, giving them
supervisory authority within individual departments.

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 On January 21, 2009, Tiner gave Wright a final warning for two incidents
occurring in December 2008. The disciplinary form indicated that on December 16,
2008, Wright was wrapped in a blanket and sleeping in a recliner, and she failed to
prepare properly the operating rooms for surgery. At trial, Wright admitted she was
reclined in the chair and covered with a blanket, but denied she was sleeping or that
it was unusual for staff to be in the lounge during down periods. The disciplinary
form further indicated that on December 18, 2008, “Wright delayed emergency care
for a patient in the ICU who needed surgical treatment for a nose bleed.” Tiner
advised Wright any further disciplinary action “could result in further corrective
action up to and including termination.”

Wright appears to have worked without further incident until July 2009. On
July 9, 2009, Cindy Sacker, then Director of Surgical Services,4 received a complaint
from a doctor that Wright had failed to inform the day staff that the doctor wanted to
perform surgery the morning of July 3, 2009, forcing the doctor to delay the surgery.
Degerald also advised Sacker that Wright had not been properly setting up the
operating tables. On July 9, 2009, at 11:14 a.m., Sacker contacted Wright at home
by telephone to discuss the complaints and schedule a meeting for Monday, July 13,
2009. Wright attempted to explain each of the issues and complained of a double
standard at the hospital. Wright testified Sacker became angry, while Wright
remained agreeable. In contrast, Sacker testified Wright became “belligerent” and
“insubordinate” and told Sacker, “Just fire me, go ahead and fire me.”

After the call, Sacker contacted Chris Cockrell, the hospital’s Employee
Relations Coordinator, to inform him of Wright’s “inappropriate” and “aggressive”
behavior and ask what disciplinary steps she could take. Cockrell advised Sacker she
could discipline Wright, including termination. When Sacker called Cockrell again

4
Sacker, who supervised the PCCs, reported directly to Wes Garrison, Service
Line Administrator, who in turn reported to Brenda Baird, Chief Nursing Officer.

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to determine whether she could terminate Wright over the phone, Cockrell advised
it was permissible, but not ideal. Sacker testified she also met with the PCCs that
afternoon to inform them, for scheduling purposes, of the decision to terminate
Wright and, later that day, confirmed her decision with Garrison and Baird.

Wright denies reacting negatively during the phone call and challenges
Sacker’s timeline of events. Wright testified that when the call with Sacker ended,
Wright “thought everything was fine.” Wright worked her regular shift that night
without incident and without speaking to Sacker or anyone else. Wright testified she
expected to meet with Sacker on July 13, 2009, as planned, to discuss the issues
raised during the call. On July 10, 2009, at 10:30 a.m., Wright called the hospital’s
human resource department to complain of racial discrimination. The receptionist
transferred Wright’s complaint call to Cockrell. Wright testified Cockrell placed her
call on hold for several minutes, and when Wright hung up and called back, Cockrell
was unavailable.

Denying he placed Wright on hold, Cockrell testified Wright complained
during the call that she was being treated unfairly and harassed due to racial
discrimination. Cockrell advised Wright he would like to meet with her in person to
obtain her statement and would prepare the necessary paperwork for her to pick up
that afternoon. Wright never gave a statement or retrieved the paperwork.

Sacker called Wright on her cell phone on July 10, 2009, at 11:18 a.m. and
terminated Wright’s employment at the hospital effective immediately. Sacker
testified neither Wright’s race nor her discrimination complaint played any role in
Sacker’s decision to terminate Wright. After the call from Sacker, Wright contacted
an attorney, who quickly prepared and sent by facsimile a letter to Cockrell on
Wright’s behalf accusing Cockrell of informing Sacker of Wright’s discrimination
complaint and causing Wright’s termination. Wright asserts Cockrell never
responded to her letter. At trial, Cockrell testified he tried unsuccessfully to contact

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Wright by phone to explain (1) Cockrell had not contacted Sacker regarding Wright’s
complaint before Wright’s termination, and (2) Wright could challenge her
termination through the hospital’s grievance process.

Later on July 10, 2009, Cockrell asked Sacker to prepare a timeline of events
leading to Wright’s termination. Sacker sent Cockrell a timeline by email on July 10,
2009, at 4:03 p.m.

Wright did not appeal her termination or any of the hospital’s other disciplinary
actions through the hospital’s grievance procedures. On September 16, 2009, Wright
filed a Charge of Discrimination with the United States Equal Employment
Opportunity Commission (EEOC), alleging she was discharged because of her race
and in retaliation for complaining of discrimination. The EEOC issued a Dismissal
and Notice of Rights, authorizing Wright to sue the hospital.

On April 23, 2010, Wright filed suit in the district court, alleging racial
discrimination and retaliation in violation of Title VII and 42 U.S.C. § 1981. The
district court conducted a two-day bench trial beginning August 16, 2012. The
district court found in favor of the hospital on all of Wright’s claims, issuing oral
findings of fact and conclusions of law from the bench. On August 21, 2012, the
district court entered judgment in favor of the hospital and dismissed Wright’s
complaint with prejudice. Wright timely appealed.

II. DISCUSSION
A. Standard of Review
“In reviewing a judgment after a bench trial, this court reviews ‘the [district]
court’s factual findings for clear error and its legal conclusions de novo.’” Outdoor
Cent., Inc. v. GreatLodge.com, Inc., 688 F.3d 938, 941 (8th Cir. 2012) (quoting
Tadlock v. Powell, 291 F.3d 541, 546 (8th Cir. 2002)); see also Fed. R. Civ. P.
52(a)(6) (“Findings of fact, whether based on oral or other evidence, must not be set

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aside unless clearly erroneous, and the reviewing court must give due regard to the
trial court’s opportunity to judge the witnesses’ credibility.”). “Under the clearly
erroneous standard, ‘we will overturn a factual finding only if it is not supported by
substantial evidence in the record, if it is based on an erroneous view of the law, or
if we are left with the definite and firm conviction that an error was made.’” Urban
Hotel Dev. Co. v. President Dev. Grp., L.C., 535 F.3d 874, 879 (8th Cir. 2008)
(quoting Roemmich v. Eagle Eye Dev., LLC, 526 F.3d 343, 353 (8th Cir. 2008)).

B. Retaliation
Wright contends the district court clearly erred in concluding she failed to
prove the hospital terminated her in retaliation for complaining of racial
discrimination. According to Wright, the district court “apparently adopted a
standard of requiring direct evidence to prove that Ms. Wright was the victim of
retaliation, because the evidence was overwhelming that [the hospital] terminated Ms.
Wright due to her desire to file a complaint of discrimination against Cindy Sacker.”
Wright is wrong.

Title VII and 42 U.S.C. § 1981 prohibit employers from retaliating against
employees for opposing racial discrimination. See 42 U.S.C. § 2000e-3(a); CBOCS
W., Inc. v. Humphries, 553 U.S. 442, 454-55, 457 (2008); Kim v. Nash Finch Co.,
123 F.3d 1046, 1059 (8th Cir. 1997). Though each statute provides “separate,
distinct, and independent” remedies for unlawful retaliation, Johnson v. Ry. Express
Agency, Inc., 421 U.S. 454, 461 (1975), the elements of Wright’s Title VII and 42
U.S.C. § 1981 retaliation claims “are identical.” Kim, 123 F.3d at 1060, 1063 (“Title
VII and § 1981 set forth parallel, substantially identical, legal theories of recovery in
cases alleging intentional discrimination in employment on the basis of race.”); see
also Takele v. Mayo Clinic, 576 F.3d 834, 838 (8th Cir. 2009) (“We apply the same
analysis to claims of discrimination and retaliation under Title VII and 42 U.S.C.
§ 1981.”). To prevail on her retaliation claims under either statute, Wright must
prove (1) she engaged in protected activity; (2) she suffered a materially adverse

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employment action; and (3) the materially adverse action was causally connected to
Wright’s protected activity. See Kim, 123 F.3d at 1060; see also Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006) (discussing materiality).

To establish causation, Wright must prove “the desire to retaliate was the but-
for cause of” her termination—that is, “that the unlawful retaliation would not have
occurred in the absence of the alleged wrongful action or actions of the [hospital].”
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. ___, ___, 133 S. Ct. 2517, 2528,
2533 (2013); see also Van Horn v. Best Buy Stores, L.P., 526 F.3d 1144, 1148 (8th
Cir. 2008) (“To make out a retaliation claim, the plaintiff must show that the
protected conduct was a ‘determinative—not merely a motivating—factor’ in the
employer’s adverse employment decision.” (quoting Carrington v. City of Des
Moines, Iowa, 481 F.3d 1046, 1053 (8th Cir. 2007))).

After reviewing the trial evidence, the district court determined “the greater
weight of the evidence” indicated “retaliation did not play a part . . . . and . . . was
certainly not the determining factor” in Wright’s termination.5 Noting the “incredibly
suspicious timing” of Wright’s termination, the district court found the evidence
would permit an inference of retaliation, but stated the district court’s “view of the
proof, listening to the witnesses and considering the exhibits, is that the decision to
terminate Ms. Wright was made on July 9th before [Wright] called Mr. Cockrell and
alleged racial discrimination.” Among other things, the district court credited

5
Deciding this case without the benefit of the decision in Nassar, the district
court noted some uncertainty about the standard of causation for Wright’s retaliation
claims. Although the district court correctly determined the determining-factor
standard applied, the district court also applied the motivating-factor standard “out
of an abundance of caution.” Cf. 8th Cir. Civil Jury Instr. §§ 5.00, 5.90, 10.00, 10.40
(2013). In light of Nassar and our precedent, it is now definitively established that
the determining-factor standard logically must be met in both Title VII and § 1981
retaliation cases. See Nassar, 570 U.S. at ___, 133 S. Ct. at 2534; Bennett v. Riceland
Foods, Inc., 721 F.3d 546, 551 (8th Cir. 2013); Kim, 123 F.3d at 1063.

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Sacker’s testimony based on Sacker’s candor regarding her memory and the
reasonableness of Sacker’s explanation for calling Wright on July 10. The district
court also found Sacker’s post-termination timeline “was a good faith attempt to
document what had happened.”

Highlighting the temporal proximity between her complaint and her
termination, Wright argues “[t]he fact that the adverse employment action occurred
within forty-five (45) minutes of the protected activity is strong circumstantial
evidence that no reasonable fact-finder can overlook.” Even stronger is the evidence
Sacker decided to terminate Wright before the discrimination complaint: Sacker’s
preparation began on July 9 amid termination discussions with Cockrell and the
PCCs, and on the afternoon of July 9—the day before Wright complained—Sacker
informed the PCCs of Wright’s impending termination.

The district court did not “overlook” Wright’s evidence. Rather, it concluded
her evidence was outweighed by substantial record evidence indicating Sacker did not
terminate Wright in retaliation for claiming discrimination. “Where there are two
permissible views of the evidence, the [district court’s] choice between them cannot
be clearly erroneous.” Schaub v. VonWald, 638 F.3d 905, 915 (8th Cir. 2011) (citing
Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)). Such is the case here.

The district court described the timing as “incredibly suspicious,” but
reasonably found the timing alone was not sufficient to carry Wright’s burden. While
a “temporal link” between the protected activity and a materially adverse employment
action may be “sufficient to create an inference of retaliation,” Bassett v. City of
Minneapolis, 211 F.3d 1097, 1105 (8th Cir. 2000), abrogated on other grounds by
Torgerson v. City of Rochester, 643 F.3d 1031, 1043, 1059 app. (8th Cir. 2011) (en
banc), we have generally required “more than a temporal connection” to establish a
retaliation claim, Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999)
(en banc). See EEOC v. Kohler Co., 335 F.3d 766, 773 n.7 (8th Cir. 2003)

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(“[T]iming alone is usually insufficient to establish that the employer’s legitimate
non-discriminatory reason for discharge is pretext.”). The district court found
Sacker’s testimony adequately explained the timing of Wright’s termination.

Wright questions Sacker’s credibility and the reliability of Sacker’s timeline.
But “[a] district court’s credibility determinations in a bench trial, like a jury’s
credibility determinations in a jury trial, are ‘virtually unassailable’ on appeal.”
Dollar v. Smithway Motor Xpress, Inc., 710 F.3d 798, 806 (8th Cir. 2013) (quoting
United States v. Quintana, 340 F.3d 700, 702 (8th Cir. 2003)). Giving due weight to
the district court’s “superior position to determine the witnesses’ credibility, and to
resolve conflicts in the testimony,” see Johnson v. Bunny Bread Co., 646 F.2d 1250,
1253 (8th Cir. 1981), we conclude the district court’s factual findings with respect to
Wright’s retaliation claims are supported by the evidence.

C. Disparate Treatment—Termination
Wright next contends the district court clearly erred in finding Wright “failed
to prove that race was the motivating factor behind” Wright’s termination. See
Nassar, 570 U.S. at ___, 133 S. Ct. at 2526 (describing the “lessened causation
standard” of 42 U.S.C. § 2000e-2(m), which enables a complaining party to prove
“unlawful employment” discrimination by “demonstrat[ing] that race . . . was a
motivating factor for any employment practice, even though other factors also
motivated the practice”). “The ultimate question in every employment discrimination
case involving a claim of disparate treatment is whether the plaintiff was the victim
of intentional discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 153 (2000). Wright can meet her burden of proving the hospital “‘intentionally
discriminated against’” her based on her race in violation of Title VII and 42 U.S.C.
§ 1981 “‘either directly by persuading the [district] court that a discriminatory reason
. . . motivated the employer or indirectly by showing that the employer’s proffered
explanation is unworthy of credence.’ In short, the district court must decide which
party’s explanation of the employer’s motivation it believes.” U.S. Postal Serv. Bd.

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of Governors v. Aikens, 460 U.S. 711, 715-16, 103 (1983) (quoting Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)) (explaining we must focus on
discrimination vel non when an appeal in a discrimination case follows a bench trial
on the merits); see also Ross v. Kan. City Power & Light Co., 293 F.3d 1041, 1050
(8th Cir. 2002) (recognizing that, following the Civil Rights Act of 1991, Pub. L. No.
102–166, Tit. I, 105 Stat. 1071 (1991), we apply substantially the same standards to
similar racial discrimination claims under Title VII and 42 U.S.C. § 1981); Kim, 123
F.3d at 1063 (“The elements of claims alleging disparate treatment on the basis of
race under Title VII and intentional employment discrimination on the basis of race
under § 1981 are identical.”).6

Here, the district court believed Sacker’s explanation that she terminated
Wright for being insubordinate during the July 9, 2009, call—not because Wright is
African-American. After considering Wright’s testimony suggesting the call “ended
in sweetness and light,” the district court credited testimony from Sacker and Cockrell
regarding Wright’s “passionate, angry conduct” during the call. The district court
explained its “best judgment . . . [was] that [Wright] lost [her] temper and had had
enough of all of this, and that [Wright was] angry in that call and [Wright’s anger
during the call] prompted the termination rather than a racial motivation or
discrimination.”

6
The parties do not dispute that the motivating-factor standard applied to
Wright’s discrimination claims under both Title VII and § 1981, and the district court
applied that standard, finding no racially discriminatory motive. However, the
comments to the Eighth Circuit model jury instructions suggest there is some
confusion as to the appropriate causation standard to apply in § 1981 racial
discrimination claims. See 8th Cir. Civil Jury Instr. §§ 5.00, 11.00, 11.40 n.5 (stating
“[t]he appropriate standard in a section 1981 case is not clearly resolved”), 11.41; cf.
EEOC v. Con-Way Freight, Inc., 622 F.3d 933, 937 (8th Cir. 2010) (declining to
decide whether the mixed-motive amendments to Title VII “apply in § 1981 actions”).
Our holding in Kim necessarily determined the same causation standard applies in
parallel Title VII and § 1981 racial discrimination claims.
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 Wright’s challenge to the district court’s reasoned judgment is primarily based
on the “demographics of the operating room.” Quoting Carter v. Ball, 33 F.3d 450,
456 (4th Cir. 1994), for the proposition that “[s]tatistics can provide important proof
of employment discrimination,” Wright avers Sacker terminated three African-
American employees, including Wright, and no Caucasian employees in the nine
months Sacker was with the hospital. Wright further notes eight of twelve employees
the hospital terminated from the surgical department from 2008 to 2010 were African-
American, including Wright.

Wright’s inchoate statistical analysis falls short of showing clear error. See
Williams v. Ford Motor Co., 14 F.3d 1305, 1310 (8th Cir. 1994) (holding “bare
statistics, without more [i.e., a cogent comparison to similarly situated7 non-minority
employees who were treated differently], were insufficient . . . to prove” unlawful
racial discrimination). In admitting Wright’s statistical evidence over the hospital’s
relevance objection, the district court stated there was “some marginal evidentiary
value in having the big picture, having the context,” but cautioned Wright the district
court was “very wary of moving from those numbers en masse to an inference of
discrimination.” See Furnco Constr. Corp. v. Waters, 438 U.S. 567, 580 (1978)
(deciding trial courts are “entitled to consider the racial mix of the work force when
trying to make the determination as to motivation”). When the district court advised
Wright of the importance of apt comparators and warned the statistical evidence alone
was “not much of a case if that’s all there is,” Wright assured the district court that

7
“The test for whether employees are similarly situated ‘is rigorous and requires
that the other employees be similarly situated in all relevant aspects before the
plaintiff can introduce evidence comparing herself to the other employees.’” Davis
v. Jefferson Hosp. Ass’n, 685 F.3d 675, 681 (8th Cir. 2012) (alteration omitted)
(quoting Fields v. Shelter Mut. Ins. Co., 520 F.3d 859, 864 (8th Cir. 2008)). “‘The
individuals used for comparison must have dealt with the same supervisor, have been
subject to the same standards, and [have] engaged in the same conduct without any
mitigating or distinguishing circumstances.’” Id. (alteration in original) (quoting
Morgan v. A.G. Edwards & Sons, Inc., 486 F.3d 1034, 1043 (8th Cir. 2007)).
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the statistical evidence was offered “to kind of give the Court some kind of picture
of what the racial makeup is of the department.”

On appeal, Wright does not even discuss the racial makeup of the entire
surgical department during the relevant period or otherwise provide context for her
claims, cf. Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 310 (1977) (“What
the [employment] figures prove obviously depends upon the figures to which they are
compared.”), much less address the differences in supervisors and discharge
circumstances that might affect her rudimentary statistical analysis. See Hutson v.
McDonnell Douglas Corp., 63 F.3d 771, 777 (8th Cir. 1995) (declaring “statistical
evidence is not probative of pretext [if] it fails to analyze the treatment of comparable
employees”). “For the statistical comparison to be probative in persuading the trier
of fact on the ultimate issue of discrimination, [Wright] must establish that the
Caucasian employees who were [purportedly treated differently] were ‘similarly
situated in all relevant respects’ to the African-American employees.” Williams, 14
F.3d at 1309 (quoting Smith v. Monsanto Chem. Co., 770 F.2d 719, 723 (8th Cir.
1985)). Wright has not done that.

Wright vaguely relies on the testimony of Zenobia Smith, the only African-
American PCC in the OR, presumably to imply discrimination in the department
based on Smith’s experiences in her impressive thirty-four years at the hospital. But
Smith testified (1) none of the terminations of African-American employees in the
surgical department during the relevant time “raise[d] a question in [her] mind as to
the fairness of the termination,” and (2) Sacker treated Smith fairly and supported
Smith’s authority when challenged by Caucasian nurses. Smith further explained one
of the two other African-American employees Sacker terminated was a “no call, no
show,” suggesting a non-discriminatory reason for the termination. And Wright did
not ask Smith for details regarding the third employee Sacker terminated reportedly
for failing to meet expectations. Even if Wright’s evidence would somehow permit
a reasonable inference of racial discrimination, it certainly did not compel the district

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court to conclude Sacker terminated Wright because of her race. See Williams, 14
F.3d at 1309-10 (concluding a record “devoid of any evidence” that similarly situated
comparators were treated differently was insufficient to prove discriminatory motive).

“The district court, sitting as the finder of fact, rejected [Wright’s] proof and
elected to believe” the testimony of Sacker and Cockrell. Bowen v. Celotex Corp.,
292 F.3d 565, 567 (8th Cir. 2002). “The district court was certainly entitled to
believe the account given by [hospital] management,” over Wright’s account. Id.
(citing Anderson, 470 U.S. at 574). On cross-examination, Wright admitted making
several misrepresentations in her employment history and testified she had
“somewhat” of “a history of not being truthful.” “[T]he decision to credit the
testimony of certain witnesses and not others is virtually never clear error.” Bowles
v. Osmose Utils. Servs., Inc., 443 F.3d 671, 674 (8th Cir. 2006). “On the record
before us, we cannot say that the credibility determinations and findings of fact made
by the district court, and upon which it relied in [concluding Sacker fired Wright for
non-discriminatory reasons], are clearly erroneous.” Willis v. Henderson, 262 F.3d
801, 809 (8th Cir. 2001).

D. Disparate Treatment—Terms and Conditions of Employment
Wright also contends the district court’s “finding that [Wright] was not
subjected to disparate terms and conditions of her employment based on race was
clearly erroneous.” See 42 U.S.C. §§ 1981, 2000e-2(a)(1) (prohibiting such racial
discrimination); Bennett v. Nucor Corp., 656 F.3d 802, 818 (8th Cir. 2011).
Asserting she “was placed in a situation where it was not possible for her to perform
all of the duties that had been placed upon her,” Wright proposes “[t]he testimony
demonstrated that [she] was required to perform jobs that similarly situated white
employees were not required to perform.” Wright again fails to show clear error.

Wright’s disparate treatment claim is predicated on the hospital (1) requiring
Wright to do alone the work she previously shared with Bell; (2) expecting Wright

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to act “in the capacity” of a supervisor; (3) allowing Caucasian nurses filling in for
Wright to perform fewer duties; (4) transferring some of Wright’s janitorial duties to
the housekeepers after her termination; (5) replacing Wright with two surgical
technologists with fewer duties; and (6) refusing Wright’s request for a transfer to the
day shift, while permitting a Caucasian surgical technologist with family issues to
transfer to weekends.

Having carefully reviewed the record, we conclude the district court properly
found that Wright failed to adduce sufficient evidence that any difference in the terms
and conditions of Wright’s employment “was a product of discrimination based on
race.” See Williams, 14 F.3d at 1310 (holding the trial court did not clearly err in
finding insufficient evidence of pretext where “non-discriminatory factors could have
accounted for” any difference in treatment). After hearing trial testimony from
Wright, Sacker, and others regarding the hospital’s staffing practices and performance
measures, the district court determined the hospital’s profit motive and desire for
greater productivity—“pushing work off on Ms. Wright” and “ask[ing] people to do
more with less,”—better explained the hospital’s allocation of greater responsibility
to Wright.

The district court’s finding that the challenges Wright faced in her job were
related to “the human cost that comes from a large scale business operation”—not to
racial discrimination—is supported by substantial evidence and does not leave us
“‘with the definite and firm conviction that an error was made.’” Urban Hotel, 535
F.3d at 879 (quoting Roemmich, 526 F.3d at 353). “In the absence of any evidence
of discriminatory intent, . . . it is not the prerogative of the courts or a jury to sit in
judgment of employers’ management decisions.” Kiel, 169 F.3d at 1136.

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III. CONCLUSION
Because this case does not “fall[] within that narrow class of exceptional cases”
in which we overturn the district court’s factual findings,8 LaRoche v. United States,
779 F.2d 1372, 1374 (8th Cir. 1985) (per curiam), we affirm.
______________________________

8
We also reject Wright’s unsubstantiated allegations the district court was
biased and prejudiced as a result of her counsel’s prior advocacy. “We have
thoroughly examined the record and find absolutely no evidence to support” Wright’s
bias and prejudice claim—such speculation is both unjustified and unprofessional.
Kostelec v. State Farm Fire and Cas. Co., 64 F.3d 1220, 1230 (8th Cir. 1995); see also
Souder v. Owens-Corning Fiberglas Corp., 939 F.2d 647, 653 (8th Cir. 1991).
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