Carla Rodgers v. U.S. Bank, N.A.

COLLOTON, Circuit Judge,

concurring in the judgment.

I concur in the judgment of the court. It seems unnecessary, in a case like this *856one, to devote extensive analysis to whether the plaintiff established the elements of a prima facie case of race discrimination. Given that U.S. Bank proffered a legitimate, non-discriminatory reason for discharging Carla Rodgers, and Rodgers presented whatever evidence she had to show that the proffered reason was a pretext for discrimination, the summary judgment record before the district court includes everything the parties would present even assuming Rodgers did make a prima facie case. As the Supreme Court said in the context of a case that had been through trial, “[t]he prima facie case method established in [McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973),] was never intended to be rigid, mechanized, or ritualistic,” and “[w]here the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.”' U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983) (internal quotation omitted). I agree with the court that Rodgers has not generated a genuine issue for trial on the “ultimate question of discrimination vel non,” id. at 714, 103 S.Ct. 1478, and that ought to be enough to resolve this appeal. See, e.g., George v. Leavitt, 407 F.3d 405, 411-412 (D.C.Cir.2005) (applying Aikens in summary judgment context); Fairchild v. Forma Scientific, Inc., 147 F.3d 567, 572 (7th Cir.1998) (same); Wixson v. Dowagiac Nursing Home, 87 F.3d 164, 170 (6th Cir.1996) (same).

The court, however, addresses what it describes an apparent conflict in our cases concerning the standard for determining the existence of a prima facie case in a case of alleged unlawful disparate treatment. I respectfully disagree with its conclusion on this point. The court’s analysis concerns the definition of “similarly situated” employees who are offered for comparison at the prima facie stage of the McDonnell Douglas burden-shifting analysis. The majority labels one definition of “similarly situated” a “low-threshold standard,” while the district court’s definition is said to be “rigorous,” and therefore incorrect. Ante, at 851. In my judgment, the divergence in definitions is more apparent than real, but to the extent there is a material difference, the standard applied by the district court is more deeply rooted in our precedents, more consistent with the law of other circuits, and more consonant with the legal presumption that accompanies the establishment of a prima facie case. Therefore, I would reaffirm our use of the district court’s standard— whether the plaintiff is “similarly situated in all relevant respects” with the employees offered for comparison — and uphold the district court’s conclusion that Rodgers did not provide sufficient evidence to raise an inference that her termination was more likely than not the result of discrimination based on race.

First, a prima facie standard that inquires whether employees are “similarly situated in all relevant respects” is more deeply rooted in our precedents. This standard was employed as early as 1992 in Jones v. Frank, 973 F.2d 673 (8th Cir.1992), where we explained that Jones’s claim of unlawful disparate treatment based on her sex “must rest on proof that she and the three men are ‘similarly situated in all relevant respects,’ ” id. at 676, and then held that Jones had “failed to prove a prima facie case of sex discrimination.” Id. at 677. We have equated the phrase “similarly situated in all relevant respects” with the statement that “[e]m-ployees are similarly situated when they are involved in or accused of the same offense and are disciplined in different ways.” Wheeler v. Aventis Pharm., 360 *857F.3d 853, 858 (8th Cir.2004) (internal quotation and emphasis omitted). This latter formulation of “similarly situated” dates to Boner v. Board of Commissioners, 674 F.2d 693 (8th Cir.1982), where we held that a plaintiff “did not establish a prima facie case of discrimination” under this standard. Id. at 696, 697 (quoting Rohde v. K.O. Steel Castings, Inc., 649 F.2d 317, 322 (5th Cir.1981)). Several more recent cases have applied the standard of “similarly situated in all relevant respects” or its equivalent in determining the existence of a prima facie case. Tatum v. City of Berkeley, 408 F.3d 543, 553 (8th Cir.2005) (rejecting plaintiffs’ prima facie case of disparate treatment where comparator was “not similarly situated to them in one material respect”); Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir.2003); La-Croix v. Sears, Roebuck & Co., 240 F.3d 688, 693-94 (8th Cir.2001); Clark v. Runyon, 218 F.3d 915, 918 (8th Cir.2000); Tolen v. Ashcroft, 377 F.3d 879, 882-83 (8th Cir.2004) (applying Gilmore and Clark); Marquez v. Bridgestone/Firestone, Inc., 353 F.3d 1037, 1038 (8th Cir.2004) (per curiam) (applying Clark); see also Philip v. Ford Motor Co., 413 F.3d 766, 769 (8th Cir.2005) (Heaney, J., dissenting) (“Orn eases require a plaintiff to show that he or she is similarly situated to employees offered for comparison in all relevant respects to meet the prima facie burden.”) (emphasis in original).

The court seems to trace the view that we should employ a different, “low-threshold” definition of “similarly situated” in assessing a plaintiffs prima facie case to the decision in Williams v. Ford Motor Co., 14 F.3d 1305 (8th Cir.1994). I respectfully submit that a better reading of Williams indicates no such deviation from our precedents in Boner and Jones. Williams explicitly relied on Boner for its definition of “similarly situated,” stating that “for purposes of establishing a prima facie case we consider whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways. See Boner v. Board of Comm’rs, 674 F.2d 693, 697 (8th Cir.1982).” Id. at 1309. Williams also followed the precedent of Jones, saying that “we analyze Williams’ prima facie case according to the elements set forth in Jones,” id. at 1308, and concluding that “[ujnder the Jones model, this court holds that Williams established a prima facie case of race discrimination.” Id. It would be passing strange to interpret an opinion that explicitly applied the “Jones model” and supported its definition of “similarly situated” with a citation of Boner as rejecting the very definitions of “similarly situated” employed in Jones and Boner at the prima facie stage as too “rigorous” for use in determining the existence of a prima facie case.

I therefore respectfully disagree with the reading of Williams advanced in our recent opinion in Wheeler v. Aventis Pharmaceuticals. Wheeler interpreted the Williams definition of similarly situated, which was supported by the citation to Boner, and which merely paraphrased a passage from Boner by changing the words “same offense” to “same or similar conduct,” as establishing a “low threshold.” 360 F.3d at 857. Wheeler then introduced the notion that the definition of “similarly situated” at the pretext stage of a discrimination case is relatively “rigorous,” id.,7 and concluded that the very passage from Boner cited in Williams at the prima facie stage constituted a “rigorous” definition of “similarly situated” to be used only at the pretext stage. Id. at 858.

*858This interpretation of the Williams analysis of a prima facie case would mean that the court cited a so-called “rigorous” definition of “similarly situated” used at the prima facie stage in Boner, but then paraphrased the definition in order to establish a “low threshold” at the prima facie stage in Williams. We should try to read our precedents as following, rather than circumventing, our earlier decisions, and the better reading of Williams is that it merely applied the functional equivalent of the Jones and Boner definitions of “similarly situated,” and concluded that the plaintiff in Williams had established a prima facie case under those legal standards. Indeed, that is how the Eleventh Circuit has interpreted Williams. Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997) (equating Williams statement of prima facie case standard with “similarly situated in all relevant respects”).8 It turns out, therefore, that the second “conflicting line” of cases described by the court can be limited to one case decided only last year, and given the option to “choose which line to follow,” ante at 852, we would perform a better service by returning the law of the circuit to its moorings. Even assuming the majority’s view that Williams must be read as conflicting with Jones and Boner, ante, at 851-852 n. 5, the preferable course would be to follow the earlier precedents and the majority of our cases. See Kostelec v. State Farm Fire and Casualty Co., 64 F.3d 1220, 1228 n. 8 (8th Cir.1995) (explaining that panel may recognize that earliest panel decisions “properly control, as they should have controlled” in subsequent cases that created conflicting lines of precedent).

Second, a prima facie standard of “similarly situated in all relevant respects” is used widely among our sister circuit courts of appeals. A majority of the regional circuits has applied this familiar standard or its equivalent at the prima facie stage of litigation under Title VII. See Cooper v. Southern Co., 390 F.3d 695, 735 (11th Cir.2004); Sartor v. Spherion Corp., 388 F.3d 275, 279 (7th Cir.2004); Barbour v. Browner, 181 F.3d 1342, 1345-47 (D.C.Cir.1999); id. at 1354 (Tatel, J. dissenting); Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352-53 (6th Cir.1998); Martinez v. Northern Rio Arriba Elec. Coop., 1998 WL 45493, at *1 (10th Cir.1998) (unpublished opinion); Shumway v. United Parcel Serv., 118 F.3d 60, 64 (2d Cir.1997); see also Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir.1995) (“To establish a prima facie case in this manner, Mayberry must show that white employees were treated differently under circumstances ‘nearly identical’ to his.”); Patches v. City of Phoenix, 68 Fed.Appx. 772, 2003 WL 21206120, at *1 (9th Cir.2003) (unpublished); cf. Ortiz Garcia v. Toledo Fernandez, 405 F.3d 21, 24 (1st Cir.2005) (per curiam). The court cites no other decision *859that has adopted different definitions of the term “similarly situated” for the purpose of setting different thresholds at different stages of a discrimination case, and I have not found any precedent (other than Wheeler) for the approach endorsed by the court today.

Third, the standard of “similarly situated in all relevant respects” also furthers the purposes of the prima facie case in the burden-shifting model of McDonnell Douglas. While the burden of establishing a prima facie case is not “onerous,” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), the proof of a prima facie case has important legal consequences. It establishes a legal presumption that the employer unlawfully discriminated against the employee, because the alleged acts, “if otherwise unexplained, are more likely than not based on impermissible factors.” Id. at 254, 101 S.Ct. 1089 (internal quotation omitted). If the employer remains silent in the face of a prima facie case that is proved by a preponderance of the evidence, then the employee is entitled to judgment as a matter of law. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 510 n. 3, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).

Under that framework, it makes good sense to consider whether an employee who seeks to make a prima facie case of disparate treatment by comparisons with another employee of a different race has demonstrated that the comparators are similarly situated in all relevant respects. For if they are not — that is, if the employees offered for comparison are dissimilar in respects that are relevant to the disputed employment action — then it is likely that the relevant dissimilarities explain the disparate treatment. In that case, the evidence has not “eliminate[d] the most common nondiscriminatory’ reasons” for the employer’s action, and it does not justify the legal presumption that the employer’s acts “are more likely than not based on impermissible factors.” Burdine, 450 U.S. at 254, 101 S.Ct. 1089 (internal quotation omitted).

This is not to say that employees offered for comparison must be similarly situated in all respects. If the evidence supports an inference that a particular dissimilarity is not relevant to the disputed act of the employer, then the presence of that dissimilarity will not preclude the employee from establishing a prima facie case. See Ercegovich, 154 F.3d at 353. But it is difficult to see why there is anything unduly rigorous about requiring a plaintiff to show that a jury could find that the employees offered for comparison are similarly situated in those respects that are relevant to the dispute, before there arises a legal presumption that the employer acted based on an unlawful discriminatory motive.9

For essentially the reasons discussed by the court in Part II.C.l of its opinion, I agree with the district court that Rodgers did not establish a prima facie case of *860unlawful discrimination. Accepting for the sake of argument the court’s view that she did make a prima facie case, I agree that Rodgers did not raise a genuine issue of material fact as to whether U.S. Bank’s stated reasons for her termination were a pretext for discrimination. Therefore, I concur in the judgment.

. Although Wheeler placed the term "rigorous” in quotation marks and followed it with a citation to Williams, 14 F.3d at 1308, the word "rigorous” does not appear in Williams.

. Williams noted that the phrase "similarly situated" appeared in both the opinion's discussion of a prima facie case and in a discussion whether the employer's explanation for adverse action was a pretext for discrimination, and then explained that "the meaning of 'similarly situated' varies according to the context in which it is used.” 14 F.3d at 1309 n. 3. Williams did not, however, say that the meaning of the term is more or less "rigorous” at either stage of the McDonnell Douglas burden-shifting analysis. Williams may be harmonized with Jones, Boner, and our similar precedents by recognizing that the plaintiff's argument concerning "similarly situated” employees differed at the two stages of the litigation. At the prima facie stage, the plaintiff in Williams compared himself directly with other employees of a different race. Id. at 1309 & n. 2. At the pretext stage, he advanced what the court called a "statistical comparison,” apparently based on the relative percentages of employees of each race who were subjected to the same adverse action as the plaintiff. Id. at 1309.

. Of course, a discharged employee need not rely on comparisons with similarly situated employees to prove unlawful discrimination. For example, to make a prima facie case under the McDonnell Douglas framework, the employee may produce evidence that her position remained open after the discharge and ultimately was filled by a person of a different race. See Hicks, 509 U.S. at 506, 113 S.Ct. 2742. Or an employee could attempt to prove race discrimination through direct evidence in the form of actions or remarks by the employer that reflect discriminatory intent. See Williams, 14 F.3d at 1310 n. 4. Rodgers, however, argues only that a comparison of her termination with the employer's treatment of another employee establishes a prima facie case and intentional race discrimination.