United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 11-1467
___________
Lena Gibson; James Gibson, *
*
Plaintiffs - Appellants, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
American Greetings Corporation, *
*
Defendant - Appellee. *
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Submitted: January 10, 2012
Filed: March 5, 2012
___________
Before MURPHY, BYE, and COLLOTON, Circuit Judges.
___________
BYE, Circuit Judge.
James and Lena Gibson, husband and wife, appeal the district court’s1 grant of
summary judgment in favor of American Greetings Corporation (“AGC”) on their
race and age discrimination, and retaliation claims. We affirm.
1
The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
I
Lena Gibson, an African-American female, has worked at AGC since January
1975 in a number of departments, performing a variety of job duties, and is currently
still employed at AGC. She was approximately age fifty-three at the time of events
giving rise to her lawsuit. In this action, Lena claims AGC failed to cross-train her for
higher-level positions due to race discrimination, age discrimination, and retaliation
for filing two internal complaints alleging race and age discrimination.
James Gibson is an African-American male, and is married to Lena Gibson.
AGC hired James in 1990. He was age fifty-two when AGC terminated his
employment. James alleges his termination was the product of age and race
discrimination. In addition, he claims AGC retaliated against him in response to
Lena’s internal complaints, and his own internal complaint alleging discrimination,
which was pending at the time of his termination.
Two AGC policies are particularly useful to understanding the Gibsons’
complaints. First, AGC has in place a Solutions Mediation Program (“Solutions”),
which allows employees to bring disputes before a neutral mediator in an effort to
resolve employees’ grievances amicably. Allegations of race and age discrimination
represent two types of grievances an employee may submit for mediation.
Second, AGC employees are subject to a progressive discipline policy as
described in the Associate Handbook. According to the Handbook, an employee may
be disciplined in the form of a written warning for violations including, but not limited
to, failure to maintain production standards, carelessness or inattention to safety rules,
or a violation of the attendance policy. An employee with two or more written
warnings on file during a twelve-month work period is ineligible for a promotion or
transfer. Furthermore, an employee may be discharged after receiving five written
warnings. If an employee works for a period of one year without receiving any
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written warnings, prior violations are not counted against that employee for purposes
of the progressive discipline. This one year period is based on time worked, not on
a calendar year; thus, time spent on qualified leave or vacation is not credited towards
this one year period.
A. Lena Gibson
In August 2005, Lena began receiving written warnings for things such as
failing to follow proper procedure or having an error rate outside company guidelines.
Although Lena admits to receiving these warnings, she generally denies their validity.
About a month after receiving her third warning in June 2006,2 Lena submitted
a claim to Solutions, alleging her supervisors had discriminated against her because
of her race. She also claimed these individuals’ actions toward her were in retaliation
for filing a discrimination charge against the company several years earlier. In
October 2006, the parties appeared before a neutral mediator and reached an amicable
resolution of Lena’s grievances. There was no finding of discriminatory conduct by
AGC. Lena requested, and was granted, a transfer from first shift to second shift with
retention of her then-current job classification as a Power Truck Operator at her then-
current rate of pay.
On two occasions in 2007, Lena applied for open positions which would have
allowed her to cross-train. AGC claims she was ineligible for the first position of
power truck operator for holiday order filling, which it had posted in July 2007,
because she had three written warnings on her disciplinary record. AGC presented
evidence the position was awarded to Kelvin Street, a thirty-three year-old
African-American male. In August 2007, Lena applied to two job openings: one
2
Lena Gibson has not received any additional written warnings since June 2006.
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position was for work as a back up line dispatcher in the shipping department, and the
other was for a back up line control clerk in the receiving and stores department. Lena
was offered, and accepted, the position as a back up line dispatcher in the shipping
department. AGC maintains this position was awarded to Lena in error given the
three written warnings on her record. Despite the error, Lena’s manager allowed her
to retain the position with a higher rate of pay. Because Lena accepted the Back Up
Line Dispatcher position, the Back Up Line Control Clerk position was awarded to
another employee, Vincent Hill, a forty year-old African-American male. Lena denies
she was not eligible for any of the positions, and claims the alleged written warnings
were pretext for denying her the position. She also claims a supervisor named Patsy
Graham told her that Lena’s manager, Charles Singleton, directed that Lena Gibson
was not to be cross-trained.
Lena filed a second Solutions claim in December 2007, alleging race
discrimination, age discrimination, and retaliation.
B. James Gibson
James initially worked at AGC as a Power Truck Operator in Returned Goods.
From August 1990 through October 2005, James received performance reviews that
were “commendable,” “exceeding expectations,” or “distinguished,” and had a clean
record with the exception of two informatives,3 and two written warnings. James
denies the validity of those disciplinary actions.
In February 2006, James began receiving a series of verbal and written
warnings which culminated in his termination. On February 21, 2006, management
3
According to AGC’s policy manual, an “informative” is a verbal warning,
documented in writing. It does not rise to the level of a written warning, and is not
counted towards the progressive discipline policy.
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verbally reprimanded James for failing to adhere to the call-in policy, which required
employees to report an absence at least thirty minutes before a scheduled shift.
Although James admits these events occurred, he denies the validity of the warning,
and claims he had provided a written doctor’s excuse. On June 29, 2006, James again
violated the thirty-minute call-in policy and received the next level of discipline, an
informative. James similarly denies the validity of this informative, and again claims
he had provided a written doctor’s excuse.
On November 21, 2006, and December 19, 2006, James received his first and
second written warning, respectively, for again failing to follow the thirty-minute
call-in policy. James admits receiving the written warnings, but currently denies their
validity. On March 9, 2007, James received an informative for safety violations after
he was observed operating his power truck in an unsafe manner. James denied he was
driving in an unsafe manner in writing on the informative, claiming “[t]he person
accusing me would be wrong.” J.A. at 122.
James received his third written warning on September 19, 2007, for safety
violations, when a load of stock fell off the power truck he was operating, nearly
striking another employee. As a result, James was relieved of his power truck
operator job and placed elsewhere within the facility. He was replaced by Earnest
Tunstall, a sixty-three year-old African-American male. James denies the factual
allegations underlying the third warning, and states the allegations were used as a
pretext to relieve him of his power truck operator job. On November 1, 2007, James
received his fourth written warning after he failed to follow the thirty-minute call-in
policy. James again denies the validity of this warning.
On December 7, 2007, James submitted a dispute through Solutions, alleging
he was subjected to discrimination on the basis of his race and age, and that he had
been retaliated against because his wife, Lena, had filed a Solutions claim.
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James’s fifth and final written warning arose because he allegedly failed to meet
uniform time standard for the four-week period beginning January 6, 2008, through
January 27, 2008. According to AGC, as of January 2008, all employees were
required to meet or exceed a 90% efficiency rating, irrespective of race or age. James
denies this standard was applied uniformly. In addition, James claims he worked in
a group which made it impossible to determine his individual standard because of the
group performance, and asserts this false accusation was used as a pretext for his
discharge. As a result of this final warning, on February 19, 2008, AGC informed
James he was being terminated under AGC’s progressive discipline policy.4 AGC
presented evidence it replaced James with a fifty-six year-old African-American male.
C. The Gibsons’ Legal Claims
Lena and James Gibson brought suit against AGC alleging race discrimination,
age discrimination, and retaliation pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e, 42 U.S.C. § 1981, the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. § 621, the Civil Rights Act of 1991, and the Arkansas Civil
Rights Act of 1993, Ark. Code Ann. §§ 16-123-101 to 16-123-108. Lena alleged in
her complaint that throughout her employment she had been subjected to different
standards than her younger, white colleagues, she had been blamed for the mistakes
of others, and that AGC generally failed to acknowledge her seniority and refused her
cross-training while giving such opportunities to younger, white employees. She
asserts these discrepancies in treatment were a result of racial and age discrimination,
4
James also received an automatically generated letter in mid-February,
informing him the company had determined he had abandoned his job because he
failed to show up for three consecutively-scheduled work days. James claims this was
because of a misunderstanding between him and his manager that occurred after his
fifth warning, but prior to his formal termination. For purposes of this appeal, we only
need address James’s termination pursuant to the progressive discipline policy.
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and retaliation for filing Solutions claims. James similarly alleged he was blamed for
the mistakes of others and subjected to different efficiency standards compared to his
younger, white colleagues. He claims these differences in treatment were a result of
race and age discrimination, as well as retaliation in response to his wife’s and his
own participation in AGC’s Solutions Mediation program, and for filing an EEOC
discrimination charge.
The district court granted summary judgment in favor of AGC on all claims.
It stated neither plaintiff had produced direct evidence of discrimination, and
concluded under the McDonnell Douglas burden-shifting framework, McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 807 (1973), neither James nor Lena had
produced sufficient evidence to make out a prima facie case of race or age
discrimination. The district court reasoned “unsupported and conclusory allegations
cannot defeat summary judgment,” and generally found the discrimination claims
failed because neither plaintiff offered “proof beyond speculation and conjecture.”
Alternatively, the district court found that even if the Gibsons had presented a prima
facie case, they had failed to prove any actions taken by AGC were pretext for either
race or age discrimination. As for the Gibsons’ retaliation claims, the district court
concluded Lena offered no evidence to demonstrate she suffered an adverse
employment action as a result of her participation in the Solutions program, and that
no reasonable fact finder could infer a causal connection between James’s Solutions
claim or the EEOC charge and his termination. In addition, the court noted AGC had
offered legitimate, non-retaliatory reasons for terminating James, which he failed to
show were pretextual.
On appeal, the Plaintiffs argue the district court improperly granted summary
judgment because genuine issues of material fact exist. The Gibsons specifically
raise two issues which they contend the district court failed to address. First, the
Gibsons argue their testimony corroborates each other’s, particularly in light of the
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district court’s acknowledgment their claims are parallel. Second, the Gibsons claim
the district court failed to account for the testimony of former AGC employee Mary
Clarksenior. The Gibsons presented Clarksenior’s testimony via a deposition
transcript recorded on January 4, 2006, in an unrelated case in which numerous
employees alleged age and race discrimination claims against AGC. See Bell v. Am.
Greetings Corp., 279 F. App’x. 415 (8th Cir. 2008) (summarily affirming the district
court’s grant of summary judgment on all claims in favor of AGC). The Gibsons
assert Clarksenior worked at AGC for twenty-one years,5 and held positions including
a checker6 in the packaging department and a data entry operator in computer
operations. The Gibsons pointed to portions of Clarksenior’s testimony where she
alleged some supervisors applied different production standards to employees based
on age and race, often relaxing or removing standards for white employees, while
maintaining strict production standards for black employees. See J.A. at 227-28, 232-
33; Tr. at 87-88, 99-100.7 Clarksenior further testified to differences in pay rates
among black and white employees. See J.A. at 233; Tr. at 100.8
5
Clarksenior’s deposition on file in case 3:04-cv-00303-BRW in the Eastern
District of Arkansas, Document 154-Exhibit H, from which the Gibsons produced
excerpts in this case, indicates Clarksenior was employed at AGC between 1981 and
2002. Tr. at 10.
6
According to Clarksenior, a checker works directly with supervisors to assign
and set up jobs, and handles confidential documents, and enters data into the
computer. See supra note 5, Tr. at 65.
7
See also the transcript on file in the district court, supra note 5, Tr. at 121-22,
148.
8
See also the transcript on file in the district court, supra note 5, Tr. at 139-41,
148.
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II
“We may affirm a district court’s grant of summary judgment on any basis
supported by the record.” Menz v. New Holland N. Am., Inc., 507 F.3d 1107, 1110
(8th Cir. 2007). “We review a district court’s decision to grant a motion for summary
judgment de novo, applying the same standards for summary judgment as the district
court.” Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 514 (8th Cir.
2011). We have recently described the appropriate standard in considering summary
judgment motions, including employment discrimination cases, as follows:
Summary judgment is proper if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law. The movant bears the initial responsibility
of informing the district court of the basis for its motion, and must
identify those portions of the record which it believes demonstrate the
absence of a genuine issue of material fact. If the movant does so, the
nonmovant must respond by submitting evidentiary materials that set out
specific facts showing that there is a genuine issue for trial. On a motion
for summary judgment, facts must be viewed in the light most favorable
to the nonmoving party only if there is a genuine dispute as to those
facts. Credibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not
those of a judge. The nonmovant must do more than simply show that
there is some metaphysical doubt as to the material facts, and must come
forward with specific facts showing that there is a genuine issue for trial.
Where the record taken as a whole could not lead a rational trier of fact
to find for the nonmoving party, there is no genuine issue for trial.
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc)
(internal quotation marks and citation omitted). To clarify, “[a]lthough the burden of
demonstrating the absence of any genuine issue of material fact rests on the movant,
a nonmovant may not rest upon mere denials or allegations, but must instead set forth
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specific facts sufficient to raise a genuine issue for trial.” Wingate v. Gage Cnty. Sch.
Dist., No. 34, 528 F.3d 1074, 1078-79 (8th Cir. 2008). “The mere existence of a
scintilla of evidence in support of the plaintiff’s position will be insufficient; there
must be evidence on which the jury could reasonably find for the plaintiff.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). We also note that we analyze the
Gibsons’ Title VII and Arkansas Civil Rights Act claims under the same standards.
McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 860 (8th Cir. 2009).
A. Race Discrimination
The Gibsons may survive AGC’s motion for summary judgment in one of two
ways. They may either “present admissible evidence directly indicating unlawful
discrimination,” or alternatively, they could create “an inference of unlawful
discrimination under the burden-shifting framework established in McDonnell
Douglas Corp. . . . .” Humphries v. Pulaski Cnty. Special Sch. Dist., 580 F.3d 688,
692 (8th Cir. 2009) (internal quotation marks and citations omitted). To prove
intentional discrimination through direct proof, a plaintiff must establish “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 employer’s decision.” Putnam v. Unity Health Sys., 348 F.3d 732, 735
(8th Cir. 2003) (internal quotation marks and citation omitted). Because neither James
nor Lena presented direct evidence of race discrimination, we analyze their claims
under the McDonnell Douglas burden-shifting framework. See Barber v. C1 Truck
Driver Training, LLC, 656 F.3d 782, 792 (8th Cir. 2011).
Under the McDonnell Douglas burden-shifting framework, a “plaintiff must
[first] establish a prima facie case of discrimination.” Jackson v. United Parcel Serv.,
Inc., 643 F.3d 1081, 1086 (8th Cir. 2011). To establish a prima facie case for race
discrimination, a plaintiff “must show (1) he is a member of a protected class, (2) he
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met his employer’s legitimate expectations, (3) he suffered an adverse employment
action, and (4) the circumstances give rise to an inference of discrimination (for
example, similarly situated employees outside the protected class were treated
differently).” Lake v. Yellow Transp., Inc., 596 F.3d 871, 874 (8th Cir. 2010). If the
plaintiffs succeed in establishing a prima facie case, “the defendant may rebut the
prima facie case by articulating a non-discriminatory rationale for its action.”
Jackson, 643 F.3d at 1086. In response, “the plaintiff must prove that the defendant’s
proffered rationale was merely pretext for discrimination.” Id. The plaintiff may
prove pretext by “adducing enough admissible evidence to raise genuine doubt as to
the legitimacy of [the defendant’s] motive.” Anderson v. Durham D & M, L.L.C., 606
F.3d 513, 521 (8th Cir. 2010) (internal quotation marks and citation omitted).
We begin by acknowledging Lena and James do raise similar claims, which
may shed some light on managerial motives: both Gibsons generally allege they were
subjected to differing efficiency standards based on their race and age, and assert they
were blamed for the mistakes of others, leading to what the Gibsons claim were
unwarranted written warnings in their records. See Sandoval v. Am. Bldg. Maint.
Indus., Inc., 578 F.3d 787, 802-03 (8th Cir. 2009) (finding evidence of other sexual
harassment claims highly probative of the type of workplace environment the plaintiff
experienced); Williams v. ConAgra Poultry Co., 378 F.3d 790, 794 (8th Cir. 2004)
(“We believe that evidence of racial bias in other employment situations could
permissibly lead to the inference that management was similarly biased in the case of
[the plaintiff’s] firing.”). In addition, similar allegations regarding differing standards
were also made by Clarksenior, though the events she described must have occurred
prior to her termination in 2002, well before the Gibsons began receiving the warnings
at issue here in 2005 and 2006, respectively. We also acknowledge that deposition
testimony of non-parties may, depending on the facts and circumstances, be used to
show discriminatory intent in the context of a § 1981 claim. See Bennett v. Nucor
Corp., 656 F.3d 802, 809-810 (8th Cir. 2011).
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But even assuming the Gibsons collective evidence established a prima facie
case of race discrimination, summary judgment was still proper for both Lena and
James because the evidence they presented was insufficient to prove AGC’s actions
were merely pretext for discrimination. See, e.g., Anderson, 606 F.3d at 521 (noting
the court would assume plaintiff could establish a prima facie case and proceed
directly to analyzing the discrimination claim under the pretextual prong of the
analysis). “A plaintiff may show pretext, among other ways, by showing that an
employer (1) failed to follow its own policies, (2) treated similarly-situated employees
in a disparate manner, or (3) shifted its explanation of the employment decision.”
Lake, 596 F.3d at 874. “We have observed that there are ‘at least two routes’ for
demonstrating a material question of fact as to pretext.” Anderson, 606 F.3d at 521
(citing Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1120 (8th Cir. 2006)).
“First, a plaintiff may succeed indirectly by showing the proffered explanation has no
basis in fact. Second, a plaintiff can directly persuade the court that a prohibited
reason more likely motivated the employer.” Id. (internal quotation marks and
citation omitted).
AGC explained it denied Lena one opportunity to cross-train as a power truck
operator for holiday order filling, a position it had posted in July 2007, because she
had three written warnings in her record. Lena’s general allegations other employees
did not receive written warnings for similar actions, or that younger, white employees
with less seniority were given more favorable opportunities—without specifically
identifying a similarly situated employee who is not African-American—is
insufficient to survive summary judgment. See Wheeler v. Aventis Pharm., 360 F.3d
853, 858 (8th Cir. 2004) (noting the burden for establishing a “similarly situated”
employee at the pretext stage is rigorous; plaintiff must prove that employees were
similarly situated in all relevant respects), abrogated on other grounds by Torgerson,
643 F.3d at 1043. In addition, Lena has not presented any evidence, other than her
own allegations, to demonstrate the warnings issued to her were not based in fact. See
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Davenport v. Riverview Gardens Sch. Dist., 30 F.3d 940, 945 (8th Cir. 1994)
(affirming summary judgment on race discrimination claims where “plaintiff
presented no such evidence other than his own unsubstantiated allegations in
deposition[,]” and concluding that “[i]n light of plaintiff’s failure to adduce any
independent evidence to substantiate his disparate treatment claim, we agree with the
district court that there is no genuine issue of fact on the issue of pretext . . . .”)
(internal citation omitted). Furthermore, Lena has not persuaded us AGC issued those
warnings with the intent to discriminate. On the contrary, AGC presented excerpts
from Lena’s employment record, which included the written warnings at issue.
Although Lena refused to sign the two written warnings for failing to meet quality
standards, she also refused to include any comments on the warnings. No
evidence—other than Lena’s later accusations—indicates that Lena’s supervisors
falsely accused her of failing to meet required quality levels. Accordingly, the district
court properly granted AGC summary judgment on Lena Gibson’s race discrimination
claim.
Similarly, AGC explained James was terminated only after he accumulated five
written warnings on his record. Because the record reflects each of these warnings
was given in response to conduct prohibited by company policies, “the burden
ultimately rests on [James] to show a genuine issue for trial about whether the
employer acted based on an intent to discriminate rather than on a good-faith belief
that the employee committed misconduct justifying termination.” Wierman v. Casey’s
Gen. Stores, 638 F.3d 984, 995 (8th Cir. 2011) (internal quotation marks and citation
omitted). Because James has failed to “point to enough admissible evidence to raise
genuine doubt as to the legitimacy of the defendant’s motive,” he has failed to prove
pretext on the part of AGC. Id. (internal quotation marks and citation omitted); see
also Richmond v. Bd. of Regents of Univ. of Minn., 957 F.2d 595, 598 (8th Cir. 1992)
(finding employer produced documentation that employee’s performance was
unsatisfactory, that plaintiff ignored progressive warnings and discipline, and that
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plaintiff’s performance did not improve, sufficient to support legitimate,
non-discriminatory reason for termination). Thus, summary judgment in favor of
AGC on James Gibson’s race discrimination claim was also proper.
B. Age Discrimination
“The ADEA prohibits discrimination against employees, age 40 and over,
because of their age.” Rahlf v. Mo-Tech Corp., Inc., 642 F.3d 633, 636-37 (8th Cir.
2011) (citing 29 U.S.C. § 623(a)(1), 631(a)). Similar to claims of race discrimination,
when a plaintiff “has no direct evidence of [age] discrimination, his claims are
analyzed under the familiar burden-shifting scheme of McDonnell Douglas Corp.
. . . .” Haigh v. Gelita USA, Inc., 632 F.3d 464, 468 (8th Cir. 2011). Because the
Gibsons have failed to show direct evidence of age discrimination, we apply this
approach.
First, “[t]o establish a prima facie case of age discrimination, [a plaintiff] must
show he (1) was at least forty years old, (2) suffered an adverse employment action,
(3) was meeting his employer’s legitimate expectations at the time of the adverse
employment action, and (4) was replaced by someone substantially younger.” Morgan
v. A.G. Edwards & Sons, Inc., 486 F.3d 1034, 1039 (8th Cir. 2007). Once a plaintiff
“establishes a prima facie case, the burden shifts to [the employer] to provide a
legitimate, nondiscriminatory reason for the [adverse employment action].” Haigh,
632 F.3d at 468. “Finally, if [the employer] provides such a reason, the burden returns
to [the plaintiff] to prove [the employer’s] reason was mere pretext for
discrimination.” Id. Furthermore, to succeed in proving age discrimination, a plaintiff
“must show, by a preponderance of the evidence, that age was the ‘but-for’ cause of
the challenged adverse employment action.” Id.
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Again, even assuming both Lena and James presented sufficient evidence to
make out a prima facie case of age discrimination, they have both failed to present
adequate proof to overcome AGC’s proffered legitimate, nondiscriminatory reasons
for its employment actions—limiting Lena’s cross-training opportunities and
terminating James. See Tusing, 639 F.3d at 515 (“[W]e will assume without deciding
that [the plaintiff] has established a prima face case [of age discrimination].”). “When
an employer articulates a nondiscriminatory reason for an [employment action,] the
factual inquiry proceeds to a new level of specificity.” Rahlf, 642 F.3d at 638
(internal quotation marks and citation omitted). “The showing of pretext necessary
to survive summary judgment requires more than merely discrediting an employer’s
asserted reasoning for [an employment action]. A plaintiff must also demonstrate that
the circumstances permit a reasonable inference of discriminatory animus.” Haigh,
632 F.3d at 470 (internal quotation marks and citation omitted). Lena generally
claims she was denied cross-training—thereby limiting her chances for a
promotion—while most of the people who got better jobs were younger and had less
seniority. James claims he was replaced by a younger, white male, a claim AGC
successfully rebutted. The Gibsons’ general allegations are not “sufficient, specific
evidence of disparate treatment to survive summary judgment.” Anderson, 606 F.3d
at 524.
C. Retaliation
“Title VII’s anti-retaliation provision prevents employers from retaliating
against employees who have acted to vindicate their statutorily protected rights by
reporting harassment or discrimination in the workplace.” Brannum v. Mo. Dep’t of
Corr., 518 F.3d 542, 547 (8th Cir. 2008) (internal quotation marks and citation
omitted). “When no direct evidence of discriminatory retaliation is asserted, as is the
case at hand, the McDonnell Douglas analysis applies.” Twymon v. Wells Fargo &
Co., 462 F.3d 925, 936 (8th Cir. 2006). “First, the plaintiff must put forth a prima
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facie case of retaliation.” Id. To establish a prima facie case of retaliation, “an
employee must show that he engaged in protected activity; he suffered a materially
adverse action that would deter a reasonable employee from making a charge of
employment discrimination; and there is a causal connection between the protected
activity and the adverse action.” Barber, 656 F.3d at 801-02 (internal quotation marks
and citation omitted). “[I]f the plaintiff puts forth a prima facie case, the employer
may rebut the resulting presumption of discrimination by articulating a legitimate,
non-retaliatory reason for the adverse employment action. Finally, if the employer
proffers a race-neutral rationale, the plaintiff may attempt to refute the asserted reason
as mere pretext.” Twymon, 462 F.3d at 936 (internal citation omitted).
Lena has not produced sufficient evidence to indicate AGC’s employment
actions allegedly denying her cross-training were retaliatory in nature. “A party’s
unsupported self-serving allegation that her employer’s decision was based on
retaliation does not establish a genuine issue of material fact.” Jackson, 643 F.3d at
1088 (internal quotation marks and citation omitted). Thus, the district court properly
determined Lena failed to make out a prima facie case of retaliation. As for James,
even if we assumed he established a prima facie case of retaliation simply by nature
of the fact AGC terminated him while his Solutions claim was pending, see O’Bryan
v. KTIV Television, 64 F.3d 1188, 1193-94 (8th Cir. 1995) (noting “close proximity
in time between plaintiff’s administrative filings and his termination established, at
minimum, a genuine issue of material fact on the elements of his prima facie case”)
(internal quotation marks and citation omitted), AGC offered legitimate, non-
discriminatory reasons for James’s termination. Because James “presented no
evidence from which a jury could conclude that [AGC’s] proffered legitimate reason
for his termination was pretextual . . ., summary judgment on [James Gibson’s] § 1981
retaliation claim was appropriate.” Gacek v. Owens & Minor Distrib., Inc., No. 11-
1417, 2012 WL 246524 at *4 (8th Cir. Jan. 27, 2012). See also Hervey v. Cnty. of
Koochiching, 527 F.3d 711, 723 (8th Cir. 2008) (“Where timing is the only basis for
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a claim of retaliation, and gradual adverse job actions began well before the plaintiff
had ever engaged in any protected activity, an inference of retaliation does not arise.”)
(quoting Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2nd Cir. 2001)).
III
For the foregoing reasons, we affirm the district court’s grant of summary
judgment in favor of AGC on all claims.
______________________________
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