Ann Bogren v. State of MN

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________

No. 99-3516
________________

Ann Bogren, *
*
Appellant, *
*
v. *
*
State of Minnesota; Minnesota *
Department of Public Safety; *
Donald Davis, Commissioner of the *
Department of Public Safety, in his * Appeal from the United States
official capacity; Minnesota State * District Court for the
Patrol; Ann Beers, Chief of the State * District of Minnesota.
Patrol, in her official capacity; *
Lieutenant Thomas Fraser of the *
State Patrol, personally and *
individually; Lieutenant Lori *
Hodapp of the State Patrol, *
personally and individually; *
Lieutenant Colonel Stephen *
Mengelkoch of the State Patrol, *
personally and individually, *
*
Appellees. *

________________

Submitted: June 16, 2000
Filed: December 22, 2000
________________

Before LOKEN, ROSS, and HANSEN, Circuit Judges.
 ________________

HANSEN, Circuit Judge.

Ann Bogren, a former probationary trooper with the Minnesota State Patrol,
brings this action against the state alleging she was discriminated against on account
of her race and gender and retaliated against in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1994). She also alleges claims pursuant
to 42 U.S.C. §§ 1981, 1983 and 1985 against three state patrol employees in their
individual capacities. Upon motions by the defendants, the district court1 granted
summary judgment on Bogren's federal law claims, and she appeals. We affirm.2

I.

Bogren was accepted into the Minnesota State Patrol Academy in November
1994 through a program designed to recruit women and minority applicants into the
patrol. Bogren graduated from the academy in February 1995, the first black female
to do so. Around the same time, the Minnesota Department of Public Safety launched
an investigation into the training environment at the academy. The investigation was
spawned by complaints from two former female cadets that academy instructors
engaged in sexually harassing and discriminatory conduct. Bogren was interviewed
during the investigation but did not identify any incidents where she was harassed or
discriminated against.

1
The Honorable Paul A. Magnuson, Chief Judge, United States District Court
for the District of Minnesota.
2
Bogren also brought claims against the state pursuant to the Minnesota Human
Rights Act (MHRA), Minn. Stat. Ann. §§ 363.01-363.15 (West 1991), and common
law negligence claims against all defendants. The district court dismissed the MHRA
claim pursuant to the parties' stipulation and declined supplemental jurisdiction of the
negligence claims after granting summary judgment on Bogren's federal law claims.
2
 Following her graduation from the academy, Bogren began the patrol's phased
field training program. In general, her field training officers (FTOs) provided favorable
reports on her performance, but more than one identified her driving skills as an area
requiring improvement. Her FTOs commented on her ability to comprehend material
quickly and to get along with others, although by the end of her field training period
Bogren had developed an antagonistic relationship with her primary FTO, Trooper
Brian Polansky. According to Polansky, Bogren's driving performance regressed
during the final phase of her field training period. He reported that Bogren committed
traffic violations on an almost daily basis, despite his instruction on the necessity of
avoiding such violations.

Despite Polansky's concerns over her driving skills, Bogren advanced in May
1995 beyond the field training program, was assigned a patrol car and began solo
patrol. As a solo probationary patrol officer, Bogren generally received above average
or satisfactory marks from her initial supervising lieutenant, Lieutenant Al Kutz, yet her
driving problems continued to be a concern. On May 24, 1995, Bogren struck a
metering light with her patrol car, knocking the light over. Another trooper, who
happened upon Bogren and the downed metering light, asked Bogren how the light was
knocked over. Bogren admitted that she struck the light, but when the officer informed
Bogren that she needed to file an accident report with the patrol, Bogren was hesitant
and had to be coaxed to make the report. Although Bogren filed the report the same
day, the trooper reported to Kutz that she had to convince Bogren to make the report
and that Bogren was not happy about it. Kutz later questioned Bogren about the light
and specifically asked whether any damage occurred to her patrol car. Bogren denied
damage but upon Kutz's inspection he noted that there was some. Bogren was also
involved in an incident in August 1995 in which she made a U-turn on an interstate
entrance, causing two other vehicles to crash.

On the evening of October 22, 1995, Bogren, while off-duty, went to the home
of her former boyfriend, Steve Johnson, to retrieve a set of keys. While in Johnson's

3
home, Bogren attempted to take a set of oriental tea cups she had previously given
Johnson, and an argument ensued. During the argument, according to Bogren,
Johnson's dog jumped up on her, causing her to drop the cups. She then left, and
Johnson called the local police department to report the cup-breaking incident. He also
called the patrol office and left a message complaining about Bogren's conduct.

A local police officer responded to Johnson's call. Johnson told the officer that
Bogren threw the cups at his feet. The same officer later called Bogren to ask her
about the incident. Bogren admitted to the officer that she was at Johnson's home, that
an argument occurred, and that cups were broken. The officer informed Bogren that
he would be issuing and sending her a citation. In the officer's report of the incident,
he noted that Bogren informed him that she threw down the cups, although Bogren
denies ever making such an admission. Bogren received a citation for criminal damage
to property.

Lieutenant Thomas Fraser, the patrol supervisor on duty the night of the incident,
returned Johnson's call around midnight to discuss the complaint against Bogren. He
also contacted the local police officer who responded to Johnson's call. The next
morning, Fraser relayed Johnson's complaint to his supervisor, Captain Stephen
Mengelkoch, who in turn filed a complaint with the patrol's internal affairs division,
reporting a charge that Bogren allegedly engaged in conduct unbecoming an officer.
The task of investigating the complaint was ultimately assigned to Fraser. Fraser
conducted taped interviews with Bogren, Johnson and a female companion of Johnson's
who was at Johnson's home on the night of the incident. In his report, Fraser concluded
that the charge of conduct unbecoming an officer was sustained. He further reported
that Bogren was "untruthful and evasive" during her taped interview with him and that
his investigation revealed Bogren had trouble controlling her anger.

Following his investigation of the incident at Johnson's home, Fraser
recommended to Captain Mengelkoch that Bogren's employment with the patrol be

4
terminated. Captain Mengelkoch agreed and assigned Lieutenant Lori Hodapp the
responsibility of preparing a supervisors' report documenting the reasons for Bogren's
termination. The final decision to terminate Bogren was made by Michael Chabries,
Chief of the Patrol. Chabries stated in an affidavit that he made the termination
decision based on conversations with and reports by Hodapp, Fraser and Mengelkoch.
Bogren was notified of the termination decision on November 8, 1995, and was
ultimately terminated on November 14, 1995. Shortly thereafter, Bogren pleaded guilty
to the reduced charge of petty misdemeanor criminal damage to property.

II.

We review a district court's issuance of summary judgment de novo, applying the
same standards as those employed by the district court. See Callas Enters., Inc. v.
Travelers Indem. Co. of Am., 193 F.3d 952, 955 (8th Cir. 1999). Under Fed. R.
Civ. P. 56(c), "[s]ummary judgment is proper if the evidence, viewed in the light most
favorable to the nonmoving party, demonstrates that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law."
Lynn v. Deaconess Med. Ctr.-W. Campus, 160 F.3d 484, 486 (8th Cir. 1998).
A. Discriminatory Discharge

Bogren advances theories of discriminatory discharge and hostile work
environment in support of her Title VII claims against the state. As the district court
recognized, her Title VII discriminatory discharge claim is analyzed under the well-
recognized McDonnell-Douglas burden-shifting framework. See Roark v. City of
Hazen, 189 F.3d 758, 761 (8th Cir. 1999) (citing McDonnell-Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)). To survive summary judgment, a plaintiff must first
demonstrate a prima facie case of discrimination. See id. A prima facie showing
creates a legal presumption of unlawful discrimination and shifts the burden to the
defendant to articulate a legitimate, nondiscriminatory reason for the plaintiff's
termination. See O'Sullivan v. Minnesota, 191 F.3d 965, 969 (8th Cir. 1999). If the

5
defendant presents a nondiscriminatory reason, "the presumption of discrimination
drops from the case" and the burden reverts to the plaintiff to show that the defendant's
proffered reason for her termination is pretextual. Id. "The ultimate burden of
persuading the trier of fact that the defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff." Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981).

Following the Supreme Court's recent decision in Reeves v. Sanderson Plumbing
Prods., Inc., 120 S. Ct. 2097, 2108-09 (2000), a plaintiff's prima facie case of
discrimination, combined with sufficient evidence from which a reasonable fact finder
could disbelieve an employer's nondiscriminatory explanation and make the ultimate
fact-finding that illegal discrimination occurred, may form the requisite evidentiary
basis upon which to submit to a jury the question of an employer's intentional, unlawful
discrimination.3

The district court assumed, as we do on appeal, that Bogren set forth sufficient
evidence to support a prima facie case of discriminatory discharge. The court
concluded, however, that she failed to establish a genuine issue that the state's proffered
reason for her termination was a pretext for discrimination. After a thorough review
of the record, we agree with the district court and conclude Bogren has not
demonstrated that the state's proffered nondiscriminatory reason for her termination is
pretextual.

The state meets its burden of advancing a legitimate, nondiscriminatory reason
for Bogren's termination from her probationary status. It contends Bogren's termination
was triggered by the incident at Johnson's home, but that the decision was based on a

3
Although Reeves involved an Age Discrimination in Employment Act case, the
reasoning is equally applicable in the Title VII context, within which the McDonnell-
Douglas framework initially arose.
6
combination of considerations, including: 1) Bogren's conduct at Johnson's home; 2)
her poor driving performance; 3) concerns over her accountability; 4) her evasiveness
during the investigation of Johnson's complaint; and 5) concern that she might present
a disciplinary problem after completion of her probationary period. We find sufficient
evidence in the record to support the state's proffered explanation. Consequently, any
presumption of discrimination "drops out of the picture." St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 511 (1993).

Bogren therefore bears the burden to produce sufficient evidence from which a
reasonable fact finder could conclude that the state's explanation is pretextual. As
proof of pretext, Bogren presents evidence that white male troopers were not treated
as harshly when disciplinary or performance issues arose in the past. While we
recognize that instances of disparate treatment may be enough to present a jury
question of whether an employer's proffered explanation is pretextual, Bogren must
show that these other troopers were "similarly situated [to her] in all relevant respects."
Lynn, 160 F.3d at 487. The district court rejected Bogren's reliance on comparable-
trooper evidence because, with the exception of one officer, all of the troopers to whom
Bogren compared herself were beyond the probationary period and were thus governed
by a collective bargaining agreement. The court reasoned the collective bargaining
agreement, with its attendant grievance procedures, would create a different response
by the patrol in disciplining or terminating those officers.

We agree with the premise underlying the district court's conclusion; troopers
beyond the probationary period are not similarly situated to a probationary trooper. See
Blanding v. Pennsylvania State Police, 12 F.3d 1303, 1309-10 (3d Cir. 1993)
(recognizing that tenured troopers are not similarly situated to probationary troopers);
see also Ghane v. West, 148 F.3d 979, 982 (8th Cir. 1998) (rejecting comparisons to
similarly-situated, nonprotected employees because the comparable employees were
not probationary employees and because their conduct did not rise to the same level as
the plaintiff's). Consequently, assuming nonprobationary troopers were treated more

7
favorably than Bogren, we do not find that fact probative of whether the state's
explanation is pretextual.4

We respectfully disagree with the district court's conclusion that Bogren only
compared herself to nonprobationary troopers. On appeal, Bogren presents scant
evidence that the patrol did not discipline several white male probationary officers

4
Bogren attempts to show there is little difference between herself and the
nonprobationary troopers, asserting that she could only be terminated by the patrol for
just cause as specified in Minn. Stat. Ann. § 299D.03 subd. 8 (Supp. 2000).
Subdivision 8 provides: "A trooper who has completed six months of continuous
employment shall not be suspended, demoted or discharged except for just cause."
(Emphasis added). We agree with the district court, however, that Bogren could be
terminated without cause because she had not completed her 12-month probationary
period, a triggering event for subdivision 8's just cause provision and the attendant
termination proceedings identified in § 299D.03.

Our conclusion is based on subdivision 7 of the same statute:

Every person employed and designated as a state trooper under and
pursuant to the provisions of this section, after 12 months of continuous
employment, shall continue in service and hold the position without
demotion, until suspended, demoted, or discharged in the manner
hereinafter provided for one or more of the causes specified herein.

(Emphasis added). Bogren was "employed and designated" as a trooper on February
24, 1995. (Appellant's App. at 82). Because Bogren's termination occurred within a
year after her designation as a trooper, we read subd. 7 to expressly provide that subd.
8 is inapplicable, and the patrol was therefore entitled to terminate Bogren without
reason. Our reading of § 299D.03 is consistent with the state patrol's collective
bargaining agreement (CBA). See CBA, Article 15 § 7, Appellees' App. at 120
("Probationary employees shall not be subject to any arbitration provision of the
Agreement nor shall the employee be subject to the provisions of M.S.A. § 299D.03.).
We accordingly reject Bogren's assertion that there is little difference between herself
and the nonprobationary officers.
8
when citizen complaints were lodged against the troopers or when disciplinary issues
arose. The same probationary officers were also identified in Bogren's response to the
state's memorandum in support of summary judgment.5 The state argues, and we agree,
however, that the probationary-trooper evidence offered by Bogren is insufficient to
establish pretext. "To be probative evidence of pretext, the misconduct of more
leniently disciplined employees must be of 'comparable seriousness.'" Harvey v.
Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994) (quoting Lanear v. Safeway
Grocery, 843 F.2d 298, 301 (8th Cir. 1988)). Bogren presents no evidence that any
of the probationary officers ever received a comparable criminal citation nor that
concerns over their accountability, driving performance or tendency to prevaricate were
raised during their probationary period. Nor does she show that they were involved in
motor vehicle accidents while on patrol. Rather, the record reflects only that two
probationary troopers received a single citizen complaint, both of which were
investigated and found to be unsustained, and a third received two citizen complaints.
Moreover, Bogren has not shown that the supervisor or supervisors responsible for her
termination were also involved in the disciplinary action, or lack thereof, of the white
male probationary officers. See id. (recognizing that individuals are generally not
similarly situated when different decision makers are involved in the respective
disciplinary action).

5
Bogren identifies five alleged probationary troopers in her brief to whom she
seeks to compare herself. The record evidence upon which Bogren relies does not
establish that the five officers were probationary troopers. "[A] party opposing a
motion for summary judgment may not rest upon the mere allegations or denials of the
pleadings, but by affidavits or as otherwise provided in Rule 56 must set forth specific
facts showing that there is a genuine issue for trial." Jaurequi v. Carter Mfg. Co., 173
F.3d 1076, 1085 (8th Cir. 1999) (quotation omitted). The state concedes, however,
that three of the troopers were probationary. (See State's Br. at 19.) For that reason,
we consider the state's treatment of those individuals in determining whether summary
judgment is appropriate.
9
 Bogren advances other arguments in support of her burden. She argues there is
evidence of "blatant lies and inaccuracies" in the supervisors' report recommending her
termination. For the most part, the supervisors' report merely presents issues and
concerns raised by other troopers during Bogren's probationary period, which are
supported by the record, and summarizes the tea-cup incident at Johnson's home. We
find no evidence supporting Bogren's assertion that the report contains blatant lies,
included by her supervisors to justify her termination, nor any evidence related to the
report's preparation which would cause a fact finder to question the explanation offered
by the state.

Bogren also contends the fact that she is the only black female trooper (and one
of few black troopers) ever employed by the patrol is circumstantial proof of pretext.
In essence, she advances simplistic demographic evidence of the patrol's workforce to
meet her pretext burden. In Hutson v. McDonnell Douglas Corp., we recognized that
statistical evidence "may support a finding of pretext, particularly where there are
independent, direct grounds for disbelieving the employer's explanation for discharge."
63 F.3d 771, 778 (8th Cir. 1995) (internal quotations omitted); see also Kim v. Nash
Finch Co., 123 F.3d 1046, 1059 (8th Cir. 1997) (in addition to other evidence that the
proffered reason was false, pretext was established by evidence that out of 3,500
employees, only 2 management employees in 25 years were nonwhite). The evidence
Bogren presents, however, is insufficient to establish a genuine issue of pretext for two
reasons. First, there is no independent evidence to support a finding of pretext.
Second, we conclude the generic type of employment statistics presented by Bogren
are not probative of the reason for her termination. See Bullington v. United Air Lines,
Inc., 186 F.3d 1301, 1319 (10th Cir. 1999) ("[B]ecause overall employment statistics
have little bearing on the specific intentions of the employer in making particular hiring
decisions, such statistical evidence will rarely suffice to rebut an employer's legitimate,
nondiscriminatory reasons for a particular adverse employment action."); LeBlanc v.
Great Am. Ins. Co., 6 F.3d 836, 848 (1st Cir. 1993) ("[S]tatistical evidence in a
disparate treatment case, in and of itself, rarely suffices to rebut an employer's

10
legitimate, nondiscriminatory rationale for its decision to dismiss an individual
employee."); cf. Hutson, 63 F.3d at 777 (statistical evidence is probative of pretext
when it analyzes the treatment of comparable employees).

In sum, we conclude Bogren has not presented sufficient evidence from which
a reasonable fact finder could disbelieve the state's nondiscriminatory explanation for
her termination. Her evidence of pretext is wholly insufficient to create a genuine issue
of material fact under Rule 56.

B. Hostile Work Environment

Bogren's Title VII hostile work environment theory is based primarily on alleged
harassing comments made and conduct engaged in by academy instructors during
Bogren's academy training. She also advances that she was subjected to a hostile work
environment when her supervisors presumed she lied or was evasive during the
investigation of the tea-cup incident and when they determined she was not accountable
for her actions as a trooper. To establish a Title VII hostile work environment claim,
Bogren must establish the following: "(1) she is a member of a protected group; (2)
unwelcome harassment occurred; (3) a causal nexus existed between the harassment
and her protected-group status; (4) the harassment affected a term, condition, or
privilege of employment; and (5) her employer knew or should have known of the
harassment and failed to take prompt and effective remedial action."6 Austin v.
Minnesota Mining & Mfg. Co., 193 F.3d 992, 994 (8th Cir. 1999). The district court

6
A plaintiff need not show that her employer failed to take remedial action with
knowledge of the harassing conduct if the alleged harassers are supervisory employees.
See Bradley v. Widnall, No. 00-1046, 2000 WL 1689711, at *3 & n.5 (8th Cir. Nov.
13, 2000). The element requires no further discussion in this case because Bogren
failed to present evidence supporting the second element of her hostile work
environment claim--that she was subjected to unlawful harassment.
11
determined that Bogren had not shown any evidence of conduct creating a hostile work
environment. We agree.

Bogren's supervisors' conclusions that she was evasive and unaccountable do
not, as a matter of law, rise to the level of a hostile work environment. See Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) ("Conduct that is not severe
or pervasive enough to create an objectively hostile or abusive work environment--an
environment that a reasonable person would find hostile or abusive--is beyond Title
VII's purview." (quotation omitted)). As for the environment at the academy, Bogren
identifies no instances in which she was subjected to racially or sexually harassing
conduct or language, nor does she demonstrate that race or gender played any part in
how she was treated by the instructors. When interviewed about the former cadets'
complaints, Bogren made a general complaint about cadets being treated
inappropriately but stated there were incidents involving both males and females. See
Kopp v. Samaritan Health Sys., Inc., 13 F.3d 264, 269 (8th Cir. 1993) (stating the key
issue in a hostile work environment claim "is whether members of one sex are exposed
to disadvantageous terms or conditions of employment to which members of the other
sex are not exposed." (quotation omitted)).

C. Retaliation

Bogren next claims she was unlawfully terminated from the patrol for
complaining to the investigator about harassing and discriminatory conduct at the
academy. To establish a prima facie case of Title VII retaliation, Bogren must show:
(1) she engaged in activity protected by Title VII; (2) she suffered an adverse
employment action; and (3) a causal connection between her protected activity and the
adverse employment action. See Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136
(8th Cir.) (en banc), cert. denied, 120 S. Ct. 59 (1999). The district court concluded
Bogren's claim fails because she presents no evidence of the first element--that she
engaged in activity protected by Title VII.

12
 Title VII prohibits employers from retaliating against employees for engaging in
two broad categories of protected activity: 1) opposing any discrimination made
unlawful by Title VII or 2) making a charge or participating in any manner in an
investigation or proceeding under Title VII. See 42 U.S.C. § 2000e-3(a) (1994).
Bogren alleges in her complaint that she opposed activity made unlawful by Title VII,
but upon review of the record we find no evidence to support her claim. During the
interview, as we previously noted, Bogren identified a limited number of instances in
which instructors intimidated cadets, but she explained that the intimidation was
directed at both male and female cadets--a complaint unprotected by Title VII.
Moreover, as the district court noted, Bogren's answers to the interviewer's questions
did not support the claims of harassment made by her fellow cadets. Because Bogren
presents no evidence that she opposed discrimination made unlawful by Title VII, we
conclude the court properly granted summary judgment on her retaliation claim.

III.
A. Equal Protection

We turn next to Bogren's claims against Lieutenants Fraser and Hodapp, and
Captain Mengelkoch in their individual capacities. To begin, she brings a § 1983 claim
against the three, asserting they violated her right to equal protection. In general, the
Equal Protection Clause requires that state actors treat similarly situated people alike.
See Klinger v. Department of Corrections, 31 F.3d 727, 731 (8th Cir. 1994), cert.
denied, 513 U.S. 1185 (1995). State actors may, however, treat dissimilarly situated
people dissimilarly without running afoul of the protections afforded by the clause. See
id. Consequently, Bogren must as a threshold matter demonstrate that Fraser, Hodapp
and Mengelkoch treated her less favorably than similarly-situated troopers on account
of her membership in a protected class. See Keevan v. Smith, 100 F.3d 644, 647-48
(8th Cir. 1996). The district court concluded that Bogren failed to show that similarly
situated white and male probationary troopers were treated more favorably, and her
equal protection claim fails for that reason. For the same reasons discussed in relation

13
to Bogren's Title VII discriminatory discharge claim, see supra § II.A., we too agree
that Bogren fails to present sufficient evidence that she was treated less favorably than
other similarly situated troopers.

B. § 1981

Bogren also seeks to recover against the individual defendants pursuant to 42
U.S.C. § 1981 (1994). Section 1981, as amended by the Civil Rights Act of 1991,
provides a cause of action for discrimination in the employment relationship. See 42
U.S.C. 1981(a), (b); see also Richmond v. Board of Regents of the Univ. of Minn.,
957 F.2d 595, 597 (8th Cir. 1992) (recognizing that prior Supreme Court precedent to
the contrary, see Patterson v. McLean Credit Union, 491 U.S. 164 (1989), was
superceded by the 1991 amendments). As an initial matter, Fraser and Hodapp argue
Bogren's § 1981 claim fails as a matter of law because she was an at-will employee.
Whether an at-will employee may maintain a § 1981 claim is a matter of first
impression in this circuit. For those circuits which have addressed the issue, the
resounding view is that an at-will employee has a cause of action under § 1981 for
discrimination occurring in the employment relationship. See, e.g., Lauture v.
International Bus. Machs. Corp., 216 F.3d 258, 260 (2d Cir. 2000) ("We join the
emerging consensus of the district courts in this circuit, and the other circuit courts of
appeal that have squarely decided this issue, to hold that an at-will employee may sue
under § 1981 for racially discriminatory termination."). But see Gonzalez v. Ingersol
Milling Mach. Co., 133 F.3d 1025, 1035 (7th Cir. 1998) (questioning, in dictum,
whether an at-will employee has sufficient contractual rights to support a § 1981 claim).

We need not weigh in on the question, however, because even assuming Bogren
may maintain a § 1981 claim despite her at-will status, her claim fails on other grounds.
As the district court recognized, a plaintiff must demonstrate purposeful discrimination
to support a § 1981 claim, see General Bldg. Contractors Ass'n v. Pennsylvania, 458

14
U.S. 375, 391 (1982), and thus, the McDonnell-Douglas burden-shifting framework is
equally applicable on summary judgment to a § 1981 claim, see Roark, 189 F.3d at
761. Because Bogren cannot meet her burden of demonstrating a genuine issue of
pretext, which would give rise first to an inference of, and then be of sufficient strength
to support an actual finding of, purposeful discrimination, her § 1981 claim fails.

C. § 1985

Lastly, Bogren claims the individual defendants conspired in violation of 42
U.S.C. § 1985(3) (1994) to deprive her of her right to equal protection. To prove a
constitutional conspiracy, a plaintiff must show that the defendants:

(1) "conspir[ed] ..." (2) "for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of the
laws, or of equal privileges and immunities under the laws." [She] must
then assert that one or more of the conspirators (3) did, or caused to be
done, "any act in furtherance of the object of [the] conspiracy," whereby
another was (4a) "injured in his person or property" or (4b) "deprived of
having and exercising any right or privilege of a citizen of the United
States."

Andrews v. Fowler, 98 F.3d 1069, 1079 (8th Cir. 1996) (quoting Griffin v.
Breckenridge, 403 U.S. 88, 102-03 (1971)). The showing requires a plaintiff to prove
an agreement between the conspirators, which can be satisfied by "pointing to at least
some facts which would suggest that appellees reached an understanding to violate her
rights." Larson by Larson v. Miller, 76 F.3d 1446, 1454 (8th Cir. 1996) (brackets and
quotation omitted). As the district court concluded, Bogren's claim fails because she
has not shown sufficient facts to support a finding that Hodapp, Fraser or Mengelkoch
agreed to violate her right to equal protection.

15
 Bogren suggests a fact finder could infer an agreement between the individual
defendants to violate her rights based on their hand in preparing the supervisors' report.
She claims all three participated in its preparation and that the three included lies and
inaccuracies in the report, or adopted the others' lies, to justify her release from the
patrol. As we have already said, we do not believe the record supports the allegedly
insidious nature of the supervisors' report that Bogren advances nor do we agree that
a jury could infer an unlawful agreement merely because the three may have assisted
in the report's preparation. Although the point of the report was to justify Bogren's
termination, there is no evidence that the three superiors were motivated by Bogren's
race or her gender in documenting the events included in the report or in recommending
her termination. The record simply does not justify any inference that an agreement
was made between the three to deprive Bogren of her right to equal protection.

IV.

For the foregoing reasons, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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