United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1417
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Richard Gacek, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Owens & Minor Distribution, Inc.; * District of Minnesota.
Marc W. Johnson; Gregory Frank *
Mattson, *
*
Appellees. *
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Submitted: October 19, 2011
Filed: January 27, 2012
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Before MELLOY, BEAM, and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
Richard Gacek appeals the decision of the district court1 granting summary
judgment to defendants Owens & Minor Distribution, Inc. (“Owens & Minor”) and
Marc Johnson on Gacek’s 42 U.S.C. § 1981 retaliation claim and to defendant
1
The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
Gregory Mattson on Gacek’s state-law defamation claim. For the reasons discussed
below, we affirm.
I. BACKGROUND
Gacek, a white male, was employed by Owens & Minor as a materials handler
(i.e., a forklift operator) at its warehouse in Mounds View, Minnesota. In September
2008, a recently terminated Owens & Minor materials handler, Mesfin Tewolde, filed
a racial discrimination suit against Owens & Minor. Owens & Minor advanced as a
legitimate reason for terminating Tewolde’s employment that Tewolde violated a
company policy by routinely failing to sign a forklift checkout sheet. Tewolde
countered that this reason was a pretext for discrimination because Owens & Minor
never disciplined other employees who failed to sign the sheet and that, in fact, a few
employees routinely signed improperly on behalf of other materials handlers. In a
deposition, Gacek supported Tewolde’s argument, testifying that he (Gacek) often
failed to sign the checkout sheet because he knew someone else would sign for him.
Other employees, including Sean Tyo and Rick Flannigan, gave similar deposition
testimony. Owens & Minor thereafter settled Tewolde’s suit.
Johnson, the general manager of the Mounds View warehouse, attended the
depositions. Ten days after the depositions, Johnson summoned Gacek, Tyo,
Flannigan, and another materials handler, Rodney Foner, into a meeting to investigate
the checkout-sheet violations discussed in the depositions. Johnson determined that
Tyo and Foner were the individuals signing the checkout sheet on behalf of other
employees and issued disciplinary warnings to them. Gacek was not disciplined.
Meanwhile, in November 2008, Owens & Minor management authorized
another employee, Bill Showers, to start and end his shifts one hour early for personal
reasons. Other employees complained to Gacek that Showers might be manipulating
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the system so that he could leave early to go hunting.2 On November 4, Gacek
complained to Johnson about Showers’s schedule, and Johnson caused Showers to be
summoned at the end of his shift for questioning. Showers left that meeting, went
home, and took his own life with a firearm.
Defendant Mattson, another employee at the warehouse, had been a friend of
Showers. It is undisputed that on November 6, Mattson told co-workers that Gacek’s
complaint about Showers’s work schedule “pushed Showers over the edge,” that it
was “the straw that broke the camel’s back,” and that Gacek “was the reason for Bill’s
death.” Gacek learned of these comments on November 13 and filed a complaint
against Mattson with management. That same day, Gacek confronted Mattson in front
of a large gathering of employees. Gacek loudly stated, “Greg, what is this I hear you
have been telling people I killed Bill Showers?” Mattson responded, “Is that so hard
to believe?” Gacek concedes that he then swore loudly at Mattson, that another
employee spoke in Mattson’s defense, and that Gacek responded by repeatedly
bumping that employee while making statements such as “hit me, I dare you to hit me
right now.”
The following day, management warned Gacek and Mattson to stay away from
each other. Gacek concedes, however, that later the same day he stopped his forklift
and stared at Mattson until a supervisor instructed Gacek to return to work. In January
2009, another employee witnessed Gacek drive his forklift into Mattson’s foot. In
March 2009, while Mattson was standing next to a large open space in the break room,
yet another employee witnessed Gacek walk through and “bump” Mattson. That day
Mattson decided to file a written complaint concerning Gacek’s conduct.
2
At times during his employment with Owens & Minor, Gacek served as a
union steward. The parties dispute whether Gacek was acting as a union steward in
November 2008, but this is not a material fact.
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Upon receiving Mattson’s complaint, Owens & Minor’s corporate headquarters
in Virginia sent human resources specialist Neal Gifford to Mounds View to
investigate. Although Gifford initially intended to investigate solely the incidents
involving Gacek and Mattson, he found that warehouse employees were eager to
report other alleged wrongdoing by Gacek. Gifford concluded that Gacek had
committed a number of violations of company policy, including the following actions
that are not disputed by Gacek: (1) refusing to sign Owens & Minor’s Warehouse
Rules because he disagreed with them; (2) writing “don’t agree” on his
acknowledgment form for Owens & Minor’s materials handling equipment safety
policy; (3) striking out language on his acknowledgment form for Owens & Minor’s
Code of Honor obligating him to comply with its policies, and writing “I disagree with
signing this pledge” under his signature; (4) yelling at a human resources employee
in April 2004 that she was not doing her job and that she did not know what she was
talking about, and again in May 2004 that she was not doing her job and that “this is
bullshit”; (5) physically intimidating the employee who spoke in defense of Mattson
on November 13, 2008 and attempting to instigate a fight with him in front of other
employees; and (6) stopping his forklift and staring at Mattson on November 14,
2008—after being told to stay away from Mattson earlier that day—until a supervisor
ordered him to return to work. Gifford also concluded that Gacek had disrupted team
meetings, left security doors propped open on at least two occasions, and driven his
forklift dangerously close to Mattson to harass him.
Pursuant to Gifford’s recommendation, Owens & Minor terminated Gacek’s
employment on April 13, 2009 for “violations of company policies, including but not
limited to creation of a hostile and intimidating work environment and engaging in
unsafe work practices.” Gacek’s union initially filed a grievance but decided not to
pursue it. Gacek then filed this lawsuit for retaliation under 42 U.S.C. § 1981 against
Owens & Minor and Johnson, and for defamation under Minnesota law against
Mattson. Gacek timely appeals the district court’s adverse grant of summary
judgment on both claims.
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II. DISCUSSION
We review a grant of summary judgment de novo, viewing the record in the
light most favorable to the nonmoving party. Lake v. Yellow Transp., Inc., 596 F.3d
871, 873 (8th Cir. 2010). “Summary judgment is proper if the record shows ‘that
there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(c)). The
nonmoving party may not rest upon mere allegations or denials, but instead must set
forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986).
A. Retaliation under 42 U.S.C. § 1981
Gacek contends that Owens & Minor and Johnson retaliated against him for
giving deposition testimony that aided Tewolde in Tewolde’s racial discrimination
suit. Under § 1981, “[a]ll persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and enforce contracts . . . as
is enjoyed by white citizens.” A non-minority individual such as Gacek can bring a
claim under § 1981 if he is discriminated or retaliated against for attempting to
“vindicate the rights of minorities protected by” § 1981, because allowing such
discrimination or retaliation to stand unchallenged “would give impetus to the
perpetuation of racial restrictions.” See Sullivan v. Little Hunting Park, Inc., 396 U.S.
229, 237 (1969) (addressing a similar claim under 42 U.S.C. § 1982).
Section 1981 claims are analyzed under the same framework as Title VII
claims. Lake, 596 F.3d at 873 n.2. Under that framework, if the plaintiff can establish
a prima facie retaliation case, the defendant must provide a legitimate,
nondiscriminatory reason for its decision. Green v. Franklin Nat’l Bank of
Minneapolis, 459 F.3d 903, 914 (8th Cir. 2006). If the defendant does so, the burden
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then shifts back to the plaintiff to show that the proffered reason was merely a pretext
for discrimination. Id.
The elements of a prima facie case of retaliation are that “(1) [the plaintiff]
engaged in statutorily protected activity; (2) an adverse employment action was taken
against him or her; and (3) a causal connection exists between the two events.” Id.
(quoting Gilooly v. Mo. Dep’t of Health & Senior Servs., 421 F.3d 734, 739 (8th Cir.
2005)). As an initial matter, we note that while Gacek’s deposition testimony on
behalf of Tewolde likely would qualify as “protected activity” under Title VII, see 42
U.S.C. § 2000e-3(a) (prohibiting discrimination against an employee because he has
“testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under this subchapter”), this does not establish that Gacek’s deposition
testimony qualifies as “protected activity” under § 1981. See Welzel v. Bernstein, 436
F. Supp. 2d 110, 118 (D.D.C. 2006) (“At a minimum, courts agree that an act of
retaliation for engaging in activity protected by Title VII ‘does not give rise to a claim
for retaliation that is cognizable under § 1981 unless that activity was also protected
by § 1981.’” (quoting Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 693 (2d Cir.
1998))). We need not decide the issue of whether Gacek’s deposition testimony
qualifies as “protected activity” for § 1981 purposes, however, because even assuming
for purposes of argument that Gacek presented a prima facie case of retaliation,
Gacek’s failure to produce any evidence of pretext dooms his claim.3
Owens & Minor’s proffered legitimate reason for Gacek’s termination was
Gifford’s conclusion that Gacek committed multiple “violations of company policies,
3
Gacek also alleges that his termination was in retaliation for a series of
complaints he filed with the Occupational Health and Safety Administration
(“OSHA”) against Owens & Minor and for his participation in the union. Because
none of these additional activities bear even a remote connection to the rights of
minorities “to make and enforce contracts,” it is clear that they are not protected under
§ 1981.
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including but not limited to creation of a hostile and intimidating work environment
and engaging in unsafe work practices.” Gacek contends that this reason is pretextual
because other employees who violated the same policies were not terminated. See
Lake, 596 F.3d at 874 (“A plaintiff may show pretext, among other ways, by showing
that an employer . . . treated similarly-situated employees in a disparate manner.”).
In particular, Gacek relies on evidence that one employee was suspended for a day,
rather than terminated from employment, for harassing other employees; two other
employees who drove forklifts in a dangerous manner were cautioned and given a
written warning, respectively, rather than terminated from employment; and another
employee who unleashed a profane tirade and attempted to initiate a fight received
only a final written warning. However, the comparators cited by Gacek involve
discipline for single incidents of harassment or single safety infractions, while
Gacek’s employment was terminated for accumulating multiple violations of company
policy. “To be probative evidence of pretext, the misconduct of more leniently
disciplined employees must be of comparable seriousness” to the plaintiff’s conduct.
Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 853 (8th Cir. 2005) (quotation omitted),
abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031 (8th
Cir. 2011) (en banc). Because none of the proffered single incidents is of comparable
seriousness to the litany of violations accumulated by Gacek, the purported evidence
of disparate treatment fails to meet the “rigorous” test at the pretext stage for
determining whether employees who were treated differently are similarly situated to
the plaintiff. See id.
Gacek presented no evidence from which a jury could conclude that Owens &
Minor’s proffered legitimate reason for his termination was pretextual. Accordingly,
summary judgment on Gacek’s § 1981 retaliation claim was appropriate.
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B. Defamation
Gacek contends that Mattson defamed him by telling other employees that
Gacek caused Showers’s death. Under Minnesota law, “[o]nly statements that present
or imply the existence of fact that can be proven true or false are actionable” in
defamation. Schlieman v. Gannett Minn. Broad., Inc., 637 N.W.2d 297, 308 (Minn.
Ct. App. 2001). “Thus, if it is plain that the speaker is expressing a ‘subjective view,
an interpretation, a theory, conjecture, or surmise,’ rather than claiming to be in
possession of ‘objectively verifiable facts,’ the statement is not actionable.” Id.
(quoting Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993)).
It is undisputed that Mattson told other employees that Gacek’s complaint
“pushed Showers over the edge” and was “the straw that broke the camel’s back,” and
that Gacek “was the reason for Bill’s death.”4 None of these statements, however,
express “objectively verifiable facts” about Showers’s decision process. See
Schlieman, 637 N.W.2d at 308 (quoting Haynes, 8 F.3d at 1227). Rather, they express
Mattson’s “theory” or “surmise” as to Showers’s motives in taking his own life. Id.
The Schlieman court’s reliance on Haynes indicates that Minnesota follows the
principle that “anyone is entitled to speculate on a person’s motives from the known
facts of his behavior.” Haynes, 8 F.3d at 1227 (holding that an author’s statement that
the plaintiff decided to abandon one woman for another based on financial reasons
4
Gacek also claims that Mattson told other employees that Gacek “killed”
Showers. However, there is no evidence Mattson publicized such a statement.
Instead, it was Gacek who stated “what is this I hear you have been telling people I
killed Bill Showers?” to a large audience, and Mattson merely responded, “Is that so
hard to believe?” Because it was Gacek himself, not Mattson, who publicized the
allegedly defamatory statement, it is not actionable in defamation. See Nw. Airlines,
Inc. v. Friday, 617 N.W.2d 590, 594 (Minn. Ct. App. 2000) (“The ‘publication’ of a
defamatory statement . . . require[s] . . . the act of the alleged defamer in making the
statement.”).
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was not actionable in defamation because it did not express “objectively verifiable
facts”).
Because Gacek’s defamation claim is not premised on statements that “present
or imply the existence of fact that can be proven true or false,” Schlieman, 637
N.W.2d at 308, summary judgment was appropriate on that claim as well.
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s grant of summary
judgment to the defendants on each of Gacek’s claims.
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