Cleotis Johnson v. Arkansas State Hospital

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 07-1810
___________

Cleotis Johnson, *
*
Appellant, *
*
Kenneth Loew, *
*
Plaintiff, *
* Appeal from the United States
James Butler, * District Court for the
* Eastern District of Arkansas.
Appellant, *
* [UNPUBLISHED]
Willie Moore, *
*
Plaintiff, *
*
v. *
*
Arkansas State Hospital; Glenn Sago; *
Larry Jordan; Charles Smith, *
*
Appellees. *
___________

Submitted: June 25, 2008
Filed: June 27, 2008
___________

Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
___________
PER CURIAM.

Cleotis Johnson and James Butler (appellants), both African American, appeal
the district court’s1 adverse grant of summary judgment in their civil rights action
alleging violations of 42 U.S.C. §§ 1981, 1983, 2000e, and the First and Fourteenth
Amendments, as well as a state law claim. We affirm. See Jacob-Mua v. Veneman,
289 F.3d 517, 520 (8th Cir. 2002) (de novo review standard).

Appellants were security officers for Arkansas State Hospital (ASH). In 2004,
Butler’s physician reported that, due to an injury, Butler would be limited in his
performance in all categories of primary job duties. ASH terminated Butler on the
basis that he was no longer able to perform the essential functions of his job with or
without accommodation. Butler claimed that he was terminated because of his race,
alleging that similarly situated Caucasian employees were treated more favorably. In
April 2005, Johnson was asked to take a polygraph examination as part of an internal
investigation; he responded that he would not take the examination at that time, but
would take it the next day with his attorney present. Pursuant to its policies, ASH
terminated Johnson for insubordination and failure to cooperate in an internal
investigation. Johnson asserted that he was merely exercising his right under Ark.
Code Ann. § 12-12-702 to have counsel present during a polygraph examination and
that ASH’s explanation for his termination was a pretext for race discrimination. He
further claimed discrimination in the terms and conditions of his employment, alleging
that he was given job assignments that were beneath his rank and that similarly
situated Caucasian employees were treated more favorably.

In addition, appellants each claimed retaliation for filing discrimination charges
with the Equal Employment Opportunity Commission (EEOC), noting that Butler was
terminated four months after filing a discrimination charge, and Johnson was

1
The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.

-2-
terminated two months after filing a discrimination charge. Johnson also claimed
retaliation in violation of his First Amendment rights, noting that in March 2005,
approximately one month before his termination, he made a report to the Disability
Rights Center, Inc. (DRC) regarding patient abuse.

Finally, Johnson claimed that, in view of his asserted state statutory right to
have counsel present during a polygraph examination, his termination violated public
policy and constituted a wrongful discharge.

As to the race-discrimination claims, we conclude that appellants failed to
create a genuine issue of fact as to whether the proffered reasons for their terminations
were pretextual. See Gill v. Reorganized Sch. Dist. R-6, 32 F.3d 376, 378 (8th Cir.
1994) (burden-shifting analysis applies equally to discriminatory-discharge claims
brought under Title VII and under §§ 1981 and 1983). Butler failed to show that the
Caucasian employees to whom he compared himself were similarly situated in all
relevant respects. See Phillips v. Union Pac. R.R. Co., 216 F.3d 703, 706 (8th Cir.
2000) (compared parties must be similarly situated in all relevant respects). Johnson
failed to create a genuine dispute as to whether ASH’s explanation for his termination
(insubordination) was pretextual. See Arnold v. Nursing & Rehab. Ctr. at Good
Shepherd, 471 F.3d 843, 847 (8th Cir. 2006) (proof of pretext includes evidence that
employer failed to follow its own policies, treated similarly situated employees in
disparate manner, or over time substantially changed proffered reason for employment
decision); Putnam v. Unity Health Sys., 348 F.3d 732, 733-34, 736 (8th Cir. 2003)
(insubordination is legitimate reason for termination; to survive summary judgment,
plaintiff must substantiate allegations with more than speculations, conjecture, or
fantasy). Further, the unfair job assignments alleged by Johnson do not constitute
adverse employment actions absent evidence of material disadvantage. See Duffy v.
McPhillips, 276 F.3d 988, 991-92 (8th Cir. 2002) (adverse employment action must
effectuate material change in terms or conditions of employment; “not everything that
makes an employee unhappy is an actionable adverse action”); Harlston v. McDonnell

-3-
Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994) (changes in duties or working
conditions that cause no materially significant disadvantage do not establish adverse
employment action).

As to the retaliation claims, we conclude that the temporal proximity between
appellants’ EEOC filings and their respective terminations was insufficient to
establish a causal connection. See Arraleh v. County of Ramsey, 461 F.3d 967, 977-
78 (8th Cir. 2006) (while inference of causal connection can be drawn from timing
between protected activity and adverse employment action, more than temporal
connection is required to present genuine factual issue of retaliation; three-week
separation without more was insufficient to prove pretext). Johnson’s First
Amendment retaliation claim is equally unavailing. Even assuming he engaged in
protected speech, he presented no evidence of a causal connection between the speech
and his termination (except for the temporal proximity), and he presented no evidence
to rebut ASH’s legitimate nondiscriminatory reason for his termination. See Morris
v. City of Chillicothe, 512 F.3d 1013, 1018-19 (8th Cir. 2008) (First Amendment
employment retaliation claim analyzed with three-step burden-shifting test).

Finally, as to Johnson’s claim of wrongful discharge, we conclude that he was
not terminated for exercising a statutory right, because section 12-12-702 on its face
applies to law enforcement personnel and criminal investigations, not an employer’s
own internal investigation. See Ark. Code Ann. § 12-12-702; Sterling Drug, Inc. v.
Oxford, 743 S.W.2d 380, 385 (Ark. 1988) (Arkansas’s public policy is found in its
constitution and statutes).

Accordingly, we affirm.
______________________________

-4-