United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1654
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Willa Russell, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
City of Kansas City, Missouri, *
*
Defendant - Appellee. *
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Submitted: January 13, 2005
Filed: July 12, 2005
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Before LOKEN, Chief Judge, HANSEN and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
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LOKEN, Chief Judge.
After investigating a complaint by an African-American subordinate, the
Kansas City Water Services Department demoted Willa Russell, a white female
supervisor in the Pipeline Division, reduced her pay, and stripped her of all
supervisory duties. Russell appealed to the City’s Human Resources Board. After
an evidentiary hearing, the Board concluded that Russell had engaged in misconduct,
though it prospectively restored her pay and reduced her demotion. Russell then
commenced this action, alleging intentional race and gender discrimination in
violation of Title VII, 42 U.S.C. § 2000e-2(a), and the Missouri Human Rights Act,
Mo. Rev. Stat. § 213.055. The district court granted the City’s motion for summary
judgment, and Russell appeals. Reviewing the grant of summary judgment de novo
and viewing the summary judgment record in the light most favorable to Russell, the
non-moving party, we reverse. See Brunke v. Goodyear Tire & Rubber Co., 344 F.3d
819, 821 (8th Cir. 2003) (standard of review).
I.
The dispute began in August 2000 when probationary employee Jennifer Love
complained to the City that supervisor Russell had pushed Love and placed her in a
headlock, had made several racially offensive comments, and had used offensive
profanity in the workplace. Love stated that three other employees heard Russell’s
offensive comments and that Russell’s two supervisors failed to take corrective action
in response to Love’s formal complaint.
Two Water Department employees investigated this complaint by interviewing
Love, Russell, and two other Pipeline Division employees. The investigators
concluded that Love’s complaint of physical violence was unfounded but that Russell
“had made repeated inappropriate comments based on race, ethnicity, and sexual
orientation and . . . participated in or condoned activities that can only be termed as
unprofessional, especially in light of her status as a supervisor.” On September 1,
acting on this report, the Director of Water Services sent Russell a letter removing her
from the Pipeline Division offices “effective immediately,” relieving her of all
supervisory duties, and recommending “a five (5) day suspension without pay for
your unprofessional behavior.” The letter advised Russell that a predetermination
hearing had been scheduled for September 12.
The next document in the sparse record on appeal is a January 3, 2001, letter
from an EEO Investigator for the City’s Human Resources Department to the Director
of Water Services summarizing “the investigation that was conducted by the Equal
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Employment Opportunity/Diversity Office in response to allegations of racial
discrimination filed by Jennifer Love.” The letter advised that, after interviewing
Love, Russell, four office staff, and Russell’s two supervisors, the Investigator
concluded that “the following allegations [by Love] were corroborated”:
1. Ms. Russell did have a conversation with Ms. Love regarding
her family picking cotton. However, it appears that both Ms. Love and
Ms. Russell were laughing and joking during the conversation and that
Ms. Love informed Ms. Russell the next day that she did not appreciate
the comments made during the conversation.
2. Ms. Russell did make a comment regarding Mexicans taking
baths in fire hydrants while watching a Water Services video with other
employees, including an employee of Hispanic origin.
3. Ms. Russell regularly referred to a male employee (who is
reported to be homosexual) as a “sissy pants.”
The Investigator reported that the use of inappropriate language, ethnic slurs, and
racial jokes in the office “is commonplace and tolerated” and recommended that
Russell be demoted to a non-supervisory position for at least one year.
On January 4, the EEO Investigator sent Russell a letter advising her of the
findings and the recommendation that Russell be disciplined. Though this letter was
treated as the Department’s statement of reasons at the subsequent due process
hearing before the Personnel Board, the City did not include the document in the Joint
Appendix on appeal. On January 5, Love received a letter from the Human Resources
Department rejecting her complaint because “the use of slurs, racial epithets, and
jokes based on race, ethnicity and sexual orientation is commonplace and tolerated.”
The City did not include this document in the Joint Appendix. On January 27, after
a predetermination hearing, the hearing officer determined that there was sufficient
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evidence to uphold the Director’s recommended discipline. The City likewise did not
include a copy of the hearing officer’s decision in the Joint Appendix.
The Water Services Department demoted Russell and reduced her pay on
March 26, 2001. Russell appealed to the Human Resources Department, and a
hearing was held before its Personnel Board on June 15, 2001. Regarding the EEO
Investigator’s finding that Russell made a disparaging comment regarding Mexican
children bathing in fire hydrants in the presence of an Hispanic employee, the
employee in question, Rita Hernandez, testified that she never heard Russell make an
inappropriate ethnic comment. Hernandez testified that Love and other employees
including Russell frequently used profanity and racial slurs and that, in Hernandez’s
opinion, Russell had been singled out for punishment because she is white “in an
office where all supervisors condone the types of things she’s being accused of.”
Regarding the EEO Investigator’s finding that Russell regularly referred to a
male employee as a “sissy pants,” the employee in question, William Recar, testified
that he is openly homosexual and has never been offended when Russell occasionally
called him “sissy boy” (not “sissy pants”); that Russell’s comments to Recar were
always friendly and non-malicious; that black and white employees regularly used
profanity and engaged in racial banter without appearing to be offended; that
Russell’s two supervisors knew of this verbal environment but took no action; and
that he had seen at least five supervisors “do the same things that Willa Russell is
being accused of and not be disciplined.” Like Hernandez, Recar opined that Russell
had been singled out for discipline because she is white.
After the hearing, the Board issued a written decision concluding that Russell
“engaged in misconduct when, in the presence of, and often directed towards, her
subordinate employees, she regularly used profanity, made inappropriate comments
about race, and called a subordinate employee ‘sissy pants’ and that her actions are
cause for disciplinary action.” However, the Board reduced Russell’s demotion from
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two position levels to one and reinstated her prior salary without back pay. In
addition, the Board expressed concern “with the fact that [Russell’s] supervisors were
not disciplined for failing to address [Russell’s] behavior and with allegations of the
pervasive use of profanity and demeaning language by both employees and
supervisors.” In response to this criticism, the Water Department issued reprimand
letters one month later to Russell’s two supervisors, a black male and a white male,
but did not demote them or reduce their pay. This lawsuit followed.
II.
As an initial matter, we agree with Russell that the district court committed an
error of law in construing the Supreme Court’s decision in Desert Palace, Inc. v.
Costa, 539 U.S. 90 (2003), as modifying the summary judgment standard applied by
this court in employment discrimination cases. See Griffith v. City of Des Moines,
387 F.3d 733, 735-36 (8th Cir. 2004). Under that standard, as we have explained in
Griffith and many other cases, an employee can survive the employer’s motion for
summary judgment in one of two ways. First, the employee can produce direct
evidence of discrimination, that is, “evidence showing a specific link between the
alleged discriminatory animus and the challenged decision, sufficient to support a
finding by a reasonable fact finder that an illegitimate criterion actually motivated the
adverse employment action.” 387 F.3d at 736 (quotation omitted). Alternatively, if
the employee lacks direct evidence of intentional discrimination, she may survive the
employer’s motion for summary judgment by “creating the requisite inference of
unlawful discrimination” through the familiar three-step burden-shifting analysis
originating in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
To apply the standard in this case, it is essential to focus on the specific reasons
Russell was demoted. The dispute began with Love’s complaint that she had been
physically assaulted and racially harassed by Russell. But viewing the evidence in
the light most favorable to Russell, as we must, those complaints were completely
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discredited by the end of the Personnel Board hearing. The EEO Investigator’s only
finding regarding Love was that Russell and Love engaged in light-hearted racial
banter that Love complained about the next day. At the evidentiary hearing, Russell,
Hernandez, and Recar all refuted Love’s allegations, and the Board’s post-hearing
findings do not even mention the alleged misconduct against Love. Thus, for
summary judgment purposes, Love’s complaint of racial harassment, though it
certainly warranted initial investigation by the City, is immaterial. Instead, the EEO
Investigator found Russell guilty of derogatory and offensive comments to Hernandez
and Recar and of tolerating a profane workplace where inappropriate racial jokes and
banter were common. The Board upheld these findings and concluded they “are
cause for disciplinary action.”
Direct Evidence. At oral argument, Russell’s attorney conceded that she does
not have direct evidence of discrimination. The concession may be ill-advised. The
City’s primary stated reasons for disciplining Russell, as reflected in the
Investigator’s report and in the Board’s decision, were her comment about Mexican
children in Hernandez’s presence and her calling the homosexual Recar “sissy
pants.”1 On appeal, the City characterizes these as “derogatory comments based on
1
Although the Personnel Board held an evidentiary due process hearing, it is
well-settled that Russell is entitled to a trial de novo of her Title VII claim. See Univ.
of Tenn. v. Elliott, 478 U.S. 788, 796 & n.5 (1986). Russell of course has no
evidence that the members of the Board were guilty of intentional race or gender
discrimination. But one issue is whether the Board served as a conduit or cat’s paw
for Water Department officials who were acting on an unlawful motive (at least in
part) in initially imposing the discipline. Compare Kramer v. Logan County Sch.
Dist. No. R-1, 157 F.3d 620, 624 (8th Cir. 1998), with Lacks v. Ferguson Reorg. Sch.
Dist. R-2, 147 F.3d 718, 725 (8th Cir. 1998), cert. denied, 526 U.S. 1012 (1999). In
this case, there is at least some evidence that the Board was a mere conduit, or
perhaps an inattentive rubber stamp -- its decision repeated the EEO Investigator’s
error in reporting that Russell and others called Recar “sissy pants,” rather than “sissy
boy,” after Recar pointedly corrected that mistake at the evidentiary hearing.
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. . . ethnicity and sexual orientation.” But at the hearing, both Hernandez and Recar
testified, under oath, that Russell had never made comments they considered bigoted,
derogatory, or offensive. Moreover, they opined that Russell had been singled out
for discipline on account of her race. When two co-workers who are the alleged
victims of misconduct deny that misconduct occurred and assert that the plaintiff is
herself the victim of discrimination by the employer, that may well be direct evidence
of discrimination sufficient to withstand the employer’s motion for summary
judgment. And if this testimony is not by itself sufficient, it is a powerful showing
of the pretext needed to defeat summary judgment under McDonnell Douglas.
The McDonnell Douglas Analysis. The three-part McDonnell Douglas
analysis begins with the plaintiff employee establishing a prima facie of
discrimination, followed by the employer articulating a legitimate, nondiscriminatory
reason for its adverse employment action. Neither of those steps is at issue here.
Rather, as is usually the case, the question is whether Russell countered the City’s
non-discriminatory explanation with a sufficient showing that the City’s stated reason
is merely a pretext for unlawful intentional discrimination.
One common way to show pretext is with evidence that other similarly situated
individuals who were not in the plaintiff’s protected class engaged in the same
conduct but were treated differently. See Harvey v. Anheuser-Busch, Inc., 38 F.3d
968, 972 (8th Cir. 1994). In a case of alleged discriminatory discipline, such as this,
the plaintiff must produce evidence that the acts of other employees who were not
disciplined or were disciplined less severely were of “comparable seriousness” to her
infraction. Lanear v. Safeway Grocery, 843 F.2d 298, 301 (8th Cir. 1988) (quoting
McDonnell Douglas, 411 U.S. at 804).
In the district court, Russell named twenty-eight Pipeline Division employees
who regularly used profanity or told racist jokes and were not disciplined or demoted.
The district court concluded that these “broad, general allegations” did not meet the
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“rigorous” test that the compared employees be similarly situated in all material
respects. In our view, the district court’s general survey of this overgrown forest
overlooked the two most important trees.
Viewing the summary judgment record most favorably to Russell, the evidence
is that Love’s initial complaint -- that Russell was guilty of offensive racial comments
to Love, Hernandez, and Recar -- was either invalidated by the City’s investigations
or discredited by the hearing testimony of Hernandez and Recar. The remaining valid
basis for Russell’s demotion was that she tolerated as a supervisor, and indeed helped
to foster, a workplace in which unacceptable profanity was rampant and inappropriate
racial and ethnic joking was common. But as to that misconduct, there were two
similarly situated employees: Russell’s two immediate supervisors who tolerated the
same workplace for years, who participated in the friendly but unacceptable verbal
environment, and who reported to the same City officials who demoted Russell. Yet
these two supervisors, one a black male and the other a white male, initially received
no discipline at all and then were given a slap on the wrist after the Personnel Board
had upheld a reduced but still severe punishment of Russell. When combined with
Russell’s other evidence casting doubt on the bona fides of the City’s decision,
particularly the above-described testimony of Hernandez and Recar, we conclude that
the showing of pretext was more than enough to defeat the City’s motion for
summary judgment.
Conclusion. Title VII does not bar an employer, particularly a public employer,
from taking decisive action to clean up a workplace where racial and ethnic jokes are
common and the use of offensive profanity is rampant. That action may of course
include relieving responsible supervisors of their supervisory duties. But when the
only white female supervisor in the relevant work force presents strong evidence of
double standards, selective enforcement of human resource policies, and
scapegoating, as Willa Russell has in this case, it is for a jury to decide whether she
is the victim of intentional race or gender discrimination.
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The judgment of the district court is reversed, and the case is remanded for
further proceedings not inconsistent with this opinion.
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