United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-1758
___________
Richard Anderson, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Durham D&M, L.L.C., * Western District of Missouri.
*
Appellee. *
__________________ *
*
Equal Employment *
Opportunity Commission, *
*
Amicus Curiae *
on behalf of Appellant. *
___________
Submitted: December 15, 2009
Filed: May 26, 2010
___________
Before RILEY, Chief Judge,1 WOLLMAN and MELLOY, Circuit Judges.
___________
MELLOY, Circuit Judge.
1
The Honorable William Jay Riley became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2010.
Richard Anderson appeals the district court's grant of summary judgment to
Durham D& M, L.L.C. ("Durham") on his claims of race discrimination under Title
VII and 42 U.S.C. § 1981, age discrimination under the Age Discrimination and
Employment Act ("ADEA"), and a racially hostile work environment under § 1981.2
The district court3 granted summary judgment to Durham as to the race discrimination
and the hostile work environment claims as a matter of law and determined Anderson
failed to exhaust his administrative remedies as to the age discrimination claim.
Considering the merits as to all claims, we affirm.
I. Background
Durham is student-transportation provider that employed Anderson as a school
bus driver at its Grandview, Missouri facility for several months in 2006 and 2007.
Anderson is a white male who was approximately 73 years old when he started at the
company. Operations Supervisor Faye Chapman interviewed and hired Anderson in
August 2006. Thereafter, Anderson attended five days of training on Durham's
policies, including harassment, discrimination, safety, and accidents.
Anderson's official hire date was September 5, 2006. The same day, an
evaluator rode along with Anderson and gave him an overall written evaluation of
2
Anderson also brought claims of retaliation under § 1981, Title VII, and the
ADEA. The district court determined that Anderson had failed to exhaust remedies
as to the Title VII and ADEA retaliation claims and granted summary judgment on the
merits as to the § 1981 retaliation claim. Anderson made only passing reference to
retaliation in his opening brief, and we consider any challenge to the district court's
grant of summary judgment as to the retaliation claims waived. See United States v.
Howard, 532 F.3d 755, 760 (8th Cir. 2008); Ahlberg v. Chrysler Corp., 481 F.3d 630,
634 (8th Cir. 2007).
3
The Honorable Greg Kays, United States District Judge for the Western
District of Missouri.
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"needs improvement," the other option being "meets expectations." Chapman
informed Anderson of the evaluation and told him that she wanted to observe his
driving.
Anderson testified that, all together, Chapman rode with him during training
and a couple of other times. She told him each time she did so that he was doing an
"excellent" job and she ultimately gave him a "meets expectations" review. Chapman
did not document any problems with his performance during ride-alongs.
Durham employed bus monitors and Chapman testified that monitors assigned
to Anderson's bus came to her with specific concerns about Anderson's driving not
long thereafter.4 Viewing the record in the light most favorable to Anderson, it does not
appear Chapman documented any complaints or discussed them with Anderson.
Anderson's testimony indicates, however, that he became aware of at least one
monitor's complaints about his driving.
In late September or early October, General Manager Daryl Huddleston told
Anderson that he would have to take a driving test on October 5. Anderson has
maintained that no one in management actually told him that he was driving poorly.
He testified, however, that Huddleston asked him to take the driving test because "they
said they had reports that my driving was bad" and that Huddleston told him about
phone calls Durham had received concerning his driving. Anderson declined to take
4
The record indicates several of Anderson's monitors complained to
management about his driving at different times during Anderson's employment.
Additionally, Durham submitted an affidavit from a child passenger who witnessed
Anderson fall asleep and complained to a monitor. Anderson has generally denied
driving poorly and making many of the mistakes cited by Durham employees and
third parties. He has offered no evidence, however, to dispute that management
actually received complaints and points instead to the lack of documentation about
them if they in fact occurred.
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the test and went home. Huddleston considered Anderson to have quit under company
policy when Anderson did not return for three days.
In January 2007, Anderson approached Huddleston about taking the driving test.
According to Huddleston, he consulted Chapman and Safety Supervisor Rodger
McGee before allowing Anderson to do so. Chapman and McGee administered the
test, and Chapman told Anderson that he did "great." Anderson also successfully
passed medical, drug, and alcohol tests and was rehired as of January 18, 2007.
In March and April 2007, Anderson was involved in three accidents. According
to the employee handbook, a "motor vehicle accident" includes any accident, including
a collision with a fixed object, "that results in death, bodily injury, property damage
or physical damage, regardless of the nature, extent, or dollar amount (i.e., $1 or more)
of injury or damage." A motor vehicle accident is to be investigated, recorded, and
reported to Risk Management. Preventable motor vehicle accidents count against the
employee's work record, while non-preventable accidents do not. "An accident is
considered preventable unless a subsequent investigation shows that our driver did
everything possible, as an expert driver, to prevent it." The handbook describes steps
to be taken by management upon each preventable accident, varying to some extent by
the amount of time between accidents. An employee is terminated upon the third
preventable accident in twenty-four months. However, "no employee is allowed a
certain number of preventable accidents," and the company retains the right to
determine appropriate "corrective action" for a preventable accident based on "cause,
severity, injuries, damage, negligence, and the employee's safety record or other
contributing factors."
On March 19 and April 4, Anderson hit curbs while driving. Marilyn Owens
was acting as a monitor on those occasions and sought medical treatment for injuries
allegedly sustained during both accidents. Durham deemed both accidents
"preventable." On April 6, Anderson was exiting Durham's lot and broke a mirror on
his bus while attempting to avoid another bus that had turned into his lane. Anderson
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reported the incident and was instructed to continue on his route. Huddleston met with
Chapman and McGee about the accidents and complaints they had received about
Anderson's driving. According to Huddleston, he decided to remove Anderson as a
driver and instructed McGee to tell Anderson he was being reassigned to a bus monitor
position at the same rate of pay. Chapman and McGee met Anderson in the parking
lot when he returned from his route, and McGee informed Anderson that he could no
longer drive. Although Anderson now asserts that he was not offered a monitor
position, he acknowledged during deposition that Chapman said he could serve as a
monitor at a lower rate of pay. At that time, Anderson turned down the offer, left, and
did not return to Durham. He stated, however, that he "probably" would have
accepted the job had the pay been the same. McGee completed an incident report dated
the same day deeming the accident preventable. The driver Anderson testified took
over his routes is a white male older than Anderson. Anderson nonetheless maintains
that he was terminated because of his race or age.
To that end, Anderson makes several broad assertions he was treated differently
than younger, African American drivers. Generally, he contends that he was subjected
to higher standards of performance. He testified that McGee constantly nitpicked his
driving, but he did not know if McGee treated others more favorably. Anderson also
stated in an affidavit, for example, that he heard supervisors discussing accidents "of
a much more serious nature involving younger, black drivers that were still employed
at Durham." Anderson additionally testified that he witnessed accidents and knew of
one driver who had two accidents in a single day, though he did not know what
happened to the driver. Anderson further alleged that African American drivers were
given special charter routes over him. He acknowledged, however, that one of the
charters conflicted with his regular route and that he was aware of Durham's policy not
to schedule a driver for a charter if it conflicted with the driver's existing routes. He
could not remember the circumstances of another charter route he did not receive.
In addition to the disparate treatment Anderson allegedly encountered, he
maintains that he suffered ongoing verbal harassment from managers and employees
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that started soon after he began working. Anderson testified that one of the reasons he
did not come back after being asked to take the driving test was because of "the name
calling and so forth" and because it was "not a good environment." He later
acknowledged that he nevertheless suggested to his wife that she apply for a job at
Durham.
Chapman and other employees frequently called Anderson names such as "fuzz
ball" and "Spongebob Square Pants." He first testified that these names were age or
race related. McGee, in addition to nitpicking Anderson's driving, often insulted and
ridiculed him, which Anderson believed had to do with his race or his age. Anderson
testified, however, that neither McGee nor Huddleston made any inappropriate remarks
as to his race or age.
According to Anderson's testimony, a group of five to seven African American
employees stood outside Durham's office and called him names as he passed by nearly
every time he saw them for almost his entire employment. These individuals called
him racial slurs, including at times "white bitch" and "cracker," on a number of
occasions, as well as other profane names such as "motherf***er" and "a**hole" on
a more regular basis. It is undisputed that he complained to Chapman at least once in
fall 2006 that employees were calling him names. However, he acknowledged at
deposition that he told her that the employees were "foulmouthed" and that he was
being called names, but did not repeat the "dirty" words used or tell her the name
calling was racially inappropriate. He also testified that Chapman was not outside
when the name calling occurred; however, Anderson believed her presence in the
office meant she must have heard the comments. Anderson did not tell any other
manager about this behavior.
Shortly after Anderson started at Durham, one of his monitors, Marilyn Owens,
began "constantly" making racial comments, including that she hated white people and
wished she had a black driver. Anderson reported the remarks to Chapman during fall
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2006. Chapman told him not to worry about Owens and that she would take care of
it, though it does not appear she did anything immediately.
Anderson also testified that a different African American monitor, Pamela
Johnney, told him that she would take his route as soon as she obtained her license.
He did not recall if he reported the comment to Chapman. Employees also called him
"old fart," but he did not complain to Chapman.
The record also contains documentation concerning alleged racially motivated
incidents occurring after Anderson left Durham. Included are joint Missouri
Department of Human Rights/EEOC charges filed by two white employees in 2008
with allegations of harassment and disparate treatment. One of these employees also
completed a statement concerning an altercation she had with an African American
employee and the use of racial slurs at Durham. Lastly, Durham records indicate that
in summer 2008, Chapman was disciplined for making an inappropriate comment in
front of employees and received training, including training on "diversity, harassment
and discrimination."
II. Discussion
Summary judgment is appropriate when there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Johnson v. Ready
Mixed Concrete Co., 424 F.3d 806, 810 (8th Cir. 2005). "We review a district court's
grant of summary judgment de novo, drawing all reasonable inferences, without resort
to speculation, in favor of the nonmoving party." Id. "A genuine issue of material fact
exists if a reasonable jury could return a verdict for the party opposing the motion."
Humphries v. Pulaski County Special Sch. Dist., 580 F.3d 688, 692 (8th Cir. 2009)
(quotation omitted). "The mere existence of a scintilla of evidence in support of the
plaintiff's position will be insufficient" to survive summary judgment. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
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A. Racially hostile work environment
Courts apply the same standards to evaluate a hostile work environment claim
under § 1981 as under Title VII. Ross v. Kansas City Power & Light Co., 293 F.3d
1041, 1050 (8th Cir. 2002). To sustain a claim for hostile work environment, "a
plaintiff must show that (1) he or she is a member of a protected class; (2) he or she is
subjected to unwelcome race-based harassment; (3) the harassment was because of
membership in the protected class; and (4) the harassment affected a term, condition,
or privilege of his or her employment." Singletary v. Mo. Dep't of Corr., 423 F.3d
886, 892 (8th Cir. 2005). The workplace must be "permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe and pervasive." Id.
(quotation omitted). The environment must be both objectively hostile as perceived
by a reasonable person and subjectively abusive as actually viewed by Anderson.
Bowen v. Mo. Dep't of Soc. Servs., 311 F.3d 878, 883 (8th Cir. 2002). In examining
the objective component, we look to the totality of the circumstances, "including the
frequency of the discriminatory conduct, its severity, whether it is physically
threatening or humiliating or a mere offensive utterance and whether the conduct
unreasonably interfered with the employee's work performance." Singletary, 423 F.3d
at 893. We also consider the "physical proximity to the harasser, and the presence or
absence of other people." Carter v. Chrysler Corp., 173 F.3d 693, 702 (8th Cir. 1999).
Finally, when a plaintiff attempts to establish a hostile work environment based on the
actions of co-workers, he or she "must then present evidence that the employer 'knew
or should have known about the harassment and failed to respond in a prompt and
effective manner.'" Arraleh v. County of Ramsey, 461 F.3d 967, 969 (8th Cir. 2006)
(citation omitted).
Hostile work environment claims must meet "demanding" standards and courts
are to "filter out" those complaints concerning the "ordinary tribulations of the
workplace." Al-Zubaidy v. TEK Indus., Inc., 406 F.3d 1030, 1039 (8th Cir. 2005)
(internal quotations and citation omitted). "[S]imple teasing, offhand comments, and
isolated incidents (unless extremely serious) will not amount to discriminatory changes
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in the terms and conditions of employment." Arraleh, 461 F.3d at 979. "Mere
utterance of an epithet which engenders offensive feelings in an employee does not
sufficiently affect the conditions of employment to implicate § 1981." Elmadhi v.
Marriott Hotel Servs., 339 F.3d 645, 653 (8th Cir. 2003) (internal quotations,
alteration, and citation omitted).
None of the actions by Durham managers establish a racially hostile work
environment. Anderson "offers little more than speculation and conjecture" that
Chapman's name calling and McGee's nitpicking and ridicule had anything to do with
race.5 Palesch v. Mo. Comm'n on Human Rights, 233 F.3d 560, 567–68 (8th Cir.
2000). Nor has he shown this behavior was objectively severe enough to give rise to
a claim. See Helton v. Southland Racing Corp., 600 F.3d 954, 959–60 (8th Cir. 2010)
(rude and demeaning conduct by supervisor insufficient); O'Brien v. Dep't of Ag., 532
F.3d 805, 810 (8th Cir. 2008) (increased scrutiny insufficient on the record); Bradley
v. Widnall, 232 F.3d 626, 631–32 (8th Cir. 2000) (frustrating work situation
insufficient). We address additional allegations regarding managers' preferential
treatment of African American employees below; for purposes here, however, we note
only that none of the managers' actions were overtly racist and Anderson has produced
insufficient evidence of disparate treatment to give rise to an inference that their
actions were racially motivated.
We also conclude that Anderson cannot establish Durham's liability for a racially
hostile work environment based on his fellow employees' conduct. On appeal, Anderson
has primarily focused his arguments on the name calling by the group of African
American employees who stood outside Durham's office. Even assuming the conduct
was objectively severe, we agree with Durham that there is insufficient evidence
management was aware of the racial nature of the harassment. The record does not
establish that any manager was physically present when the name calling occurred; any
subjective belief on Anderson's part that Chapman heard the language from the office
5
The same is true regarding Anderson's belief that names like "fuzz ball" or
"Spongebob" had to do with age.
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cannot defeat summary judgment on this point. Anderson acknowledged that he told
Chapman he was being called names and that the employees were "foulmouthed." He
has failed to point to any evidence indicating that he even suggested to her these
comments were racially motivated. See Jacob-Mua v. Veneman, 289 F.3d 517, 523 (8th
Cir. 2002) (affirming summary judgment where plaintiff failed to "declare, indicate, or
even imply that the incident had anything to do with race"). Even considering
Anderson's testimony that he complained to Chapman about Owens's racial comments,
we cannot say on this record that Chapman should have realized that the name calling,
by different employees under dissimilar circumstances, was racially motivated as well.
Nor has he shown that such harassment was so widespread during his employment that
Durham should have known about the racial nature of the harassment for that reason
either. Cf. Hall v. Gus Constr. Co., Inc., 842 F.2d 1010, 1015–16 (8th Cir. 1988).
As noted, Owens, Anderson's monitor, allegedly made repeated racial comments
during Anderson's short employment of which Chapman was aware; however, "the
frequency of the alleged harassment is only one of the relevant factors" we consider in
determining whether harassment is objectively severe. From Anderson descriptions of
his interactions with her, we cannot detect any of the physically threatening or
intimidating behavior that we have found important in some actionable cases. See, e.g.,
Reedy v. Quebecor Printing Eagle, Inc., 333 F.3d 906, 909–10 (8th Cir. 2003); Bowen,
311 F.3d at 884–85. Anderson also acknowledged during deposition that at some point
after his complaints to Chapman, Durham separated him from Owens.
Finally, we question, as did the district court, how subjectively severe Anderson
considered the harassment to be, and Owens's in particular. Anderson voluntarily
returned to Durham of his own accord after initially refusing to take the driving test.
He also indicated that he would probably have remained at Durham after being removed
as a driver had he been offered the same pay to serve as a monitor and acknowledged
that suggested that his wife apply for a job at Durham. This evidence indicates that
while this conduct may have certainly offended Anderson, it did not subjectively alter
the conditions of his employment.
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B. Race discrimination
"We apply the same analysis to claims of discrimination under Title VII and 42
U.S.C. § 1981." Takele v. Mayo Clinic, 576 F.3d 834, 838 (8th Cir. 2009). In the
absence of direct evidence of discrimination, we employ the burden-shifting framework
in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), to evaluate
Anderson's claims.6 Humphries, 580 F.3d at 692. Anderson can establish a prima facie
case of race discrimination by showing that (1) he is a member of a protected class; (2)
he was qualified for the position (sometimes articulated as meeting the employer's
legitimate expectations); (3) he suffered an adverse employment action; (4) under
circumstances permitting an inference that the action was a result of unlawful
discrimination. Id. The burden then shifts to Durham "to establish a legitimate,
nondiscriminatory reason for taking the allegedly discriminatory action." Id. at 692–93
(quotation omitted). "If [Durham] puts forth such a reason, [Anderson] must then show
that [Durham's] proffered explanation is pretextual or his claims will fail." Id. He may
do so by "adduc[ing] enough admissible evidence to raise genuine doubt as to the
legitimacy of [Durham's] motive." Sprenger, 253 F.3d at 1110 (quotation omitted).
The district court held that Anderson failed to establish a prima facie case,7 and that
6
Anderson argues the district court failed to recognize direct evidence of racial
discrimination and erred by analyzing his claims under McDonnell Douglas, rather
than under the mixed-motive analysis of PriceWaterhouse v. Hopkins, 490 U.S. 228
(1990). However, Anderson failed to raise the mixed-motive theory below, and thus
Anderson's arguments are not properly before this court. Cronquist v. City of
Minneapolis, 237 F.3d 920, 924–25 (8th Cir. 2001). Based on the parties'
submissions, the district court reasonably assumed that they agreed McDonnell
Douglas applied, and we will not entertain these arguments for the first time on
appeal. Id.
7
The district court reasoned in part that Anderson had not established he was
qualified for the position because he could not show that he was meeting the
employer's legitimate job expectations of driving a bus safely. We have recently
recognized that a tension appears to exist in our case law as to what a plaintiff must
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even if he had, he could not show Durham's reason for terminating him as a driver—his
unsafe record as a whole—was pretextual. Even assuming Anderson could establish a
prima facie case, we agree the claim fails on the third prong of the analysis.
"At [the] final stage of the analysis, [Anderson's] burden merges with the
ultimate burden of persuading the court that [he] has been the victim of intentional
discrimination." Dixon v. Pulaski County Sch. Dist., 578 F.3d 862, 868 (8th Cir. 2009)
(quotation omitted). We consider "evidence used to support the prima facie case along
with other evidence before the court to determine whether a whether there exists a
triable fact on the ultimate issue of discrimination." Id. (quotation omitted). We have
observed that there are "at least two routes" for demonstrating a material question of
fact as to pretext. 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." Id. (quotation omitted). Second, a plaintiff can "directly"
persuade the court that a "prohibited reason more likely motivated the employer." Id.
(quotation omitted). Anderson maintains that he presented evidence that Durham's
proffered reason was false, and that he can, in any event, succeed under the second
route. We disagree.
Anderson claims disparate treatment from similarly situated employees, most
notably in that he was disciplined and ultimately terminated for minor accidents to
which management turned a blind eye when committed by African Americans. He has
not, however, identified any specific individual who received preferential treatment or
otherwise provided sufficient detail that would permit us to determine whether these
individuals were in fact similarly situated to him. In order for disparate treatment to be
probative of pretext, Anderson must show that he was similarly situated to more
leniently treated employees in "all relevant respects" — a "rigorous" standard at the
establish regarding qualifications at this stage of the analysis. See Elam v. Regions
Fin. Corp., 2010 WL 1526450, at *5 n.4 (8th Cir. Apr. 19, 2010). We do not address
this here because, as discussed above, the claim fails on pretext.
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pretext stage. Wimbley v. Cashion, 588 F.3d 959, 962 (8th Cir. 2009). He has not
offered any sound reason why we should excuse his failure to provide the necessary
facts.8
Anderson argues Chapman's positive statements about his driving undermine
Durham's proffered reason that he was a poor driver and are evidence of pretext.
Recent positive performance evaluations sometimes may serve as evidence of pretext.
See Lewis v. St. Cloud State Univ., 467 F.3d 1133, 1137–38 (8th Cir. 2006); Turner v.
Gonzales, 421 F.3d 688, 698 (8th Cir. 2005). Such evaluations may be particularly
probative if they are part of a longer history of otherwise satisfactory performance. See
Turner, 421 F.3d at 697–98. Here, however, Chapman's evaluations of Anderson's
driving do little for his case. Durham had problems with Anderson's driving from day
one, and the timing of her evaluations remains important. The record indicates that
Chapman evaluated Anderson's driving in fall 2006 and when she administered the
driving test in January 2007. Following these evaluations, management received
complaints. Chapman's evaluations also predated the accidents that immediately
preceded Anderson's ultimate termination.
Anderson also contends that the circumstances of his removal as a driver are
indicative of pretext: he was "fired on the spot" by two African American managers,
Chapman and McGee, with no investigation into the third accident prior to his
8
Anderson argues that he was prevented from identifying specific, similarly
situated drivers because Durham admitted it did not keep accurate accident records.
To support this assertion, Anderson cites in part the testimony of Jeff Hill, who
appears to have served as General Manager after Anderson's termination. It is unclear
from Hill's testimony whether he managed the same site at which Anderson was
employed. In any event, Hill confirmed that typically, work orders are filled out for
repairs and other work done on buses and that he caught a shop supervisor making a
repair on a bus for which no work order had been completed. Even assuming this
testimony is relevant, it cannot be stretched to mean what Anderson asserts it to say
without resort to speculation.
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termination, in violation of Durham policy to investigate accidents. We decline any
invitation to hold a genuine fact dispute exists as to pretext simply because of the race
of the individuals involved in his termination. Even if we considered that line of
thinking, Huddleston's uncontested affidavit states that he, a white man, ultimately
made the decision to remove Anderson as a driver and that McGee then delivered that
decision. Anderson offers no evidence, other than his belief, indicating this was not the
case.
Regarding the lack of investigation, although "an employer's violation of its own
policies may be indicative of pretext," that is not always so. Dixon, 578 F.3d at 871.
While this alleged violation indicates Durham was perhaps quick to act, federal courts
do not serve as "super-personnel departments," sitting in judgment of an employer's
business decisions absent evidence of discrimination. Hutson v. McDonnell Douglas
Corp., 63 F.3d 771, 781 (8th Cir. 1995). Anderson already had two preventable
accidents, one just two days before the final incident. Durham could have taken
corrective measures for any preventative action, based on its own evaluation of the
circumstances and the driver's record. A third preventable accident should have meant
automatic termination under company policy and Anderson acknowledged that
Chapman offered him another position after removing him as a driver. On this record,
we conclude any violation is insufficient to create a jury question as to pretext.
Anderson points to other evidence allegedly betraying Chapman's discriminatory
motivations regarding his termination in particular. For example, he notes her failure
to respond to mistreatment by fellow employees. As noted above, however, Anderson
has not adduced sufficient evidence showing that Chapman was aware of the racial
nature of the name calling by the group of African American drivers, which, of all the
harassment, he suggests was the most serious. Moreover, even considering any failure
on her part to address his complaints, "a strong inference" arises that "discrimination
was not a motivating factor if the same individual hired and fired the plaintiff within a
relatively short period of time." See, e.g., Arraleh, 461 F.3d at 976–77 (quotation
omitted).
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Ultimately, Anderson has not convinced us that a genuine question of fact exists
regarding Durham's motivations. It remained his burden to show not only that
Durham's proffered reason was suspect in some way, but that it was pretext for unlawful
discrimination. See Dixon, 578 F.3d at 870. Because Anderson has failed to make a
showing sufficient to establish the existence of an element of his claim, summary
judgment is appropriate. Celotex Corp. v. Catrett, 477 F.3d 317, 322–23 (1986).
C. Age Discrimination
The district court determined that Anderson had failed to exhaust his
administrative remedies as to his age discrimination claim and Durham urges us to
affirm this holding on appeal. Exhaustion of administrative remedies is a condition
precedent to the filing of an action under the ADEA. See, e.g., Shelton v. Boeing Co.,
399 F.3d 909, 912 (8th Cir. 2005). We may reach the merits, however, if doing so
provides a sounder basis for resolving the case. We elect to do so here and affirm the
grant of summary judgment. See Eastling v. BP Prods. N. Am., Inc., 578 F.3d 831,
835–36 (8th Cir. 2009) (court of appeals may affirm summary judgment on any grounds
supported by the record); Dorsey v. Pinnacle Automation Co., 278 F.3d 830, 835 (8th
Cir. 2002) (in ADEA case, noting filing of timely charge is not a jurisdictional
requirement and period for filing is subject to equitable doctrines such as waiver and
estoppel). See also Allen v. Highlands Hosp. Corp., 545 F.3d 387, 400–03 (6th Cir.
2008) (concluding that exhaustion does not raise jurisdictional question under the
ADEA and electing to reach merits of disparate impact claim).
The ADEA protects individuals over forty and prohibits an employer from
"fail[ing] or refus[ing] to hire or . . . discharg[ing] any individual or otherwise
discriminat[ing] against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's age." 29 U.S.C.
§ 623(a). Generally speaking, under the McDonnell Douglas framework, Anderson
may establish a prima facie case of age discrimination with a showing that (1) he is over
forty; (2) he was qualified for the position; (3) he suffered an adverse employment
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action; and (4) similarly-situated employees outside the class were treated more
favorably. See Thomas v. Corwin, 483 F.3d 516, 528 (8th Cir. 2007). We note at the
outset that in discriminatory discharge cases, we have frequently stated that the last
prong of the prima facie case is established by demonstrating the plaintiff was replaced
by a substantially younger individual. See, e.g., McGinnis v. Union Pac. R.R., 496
F.3d 868, 875–76 (8th Cir. 2007); Thomas, 483 F.3d at 533; Lewis, 467 F.3d at 1136;
Haas v. Kelly Servs., Inc., 409 F.3d 1030, 1035 (8th Cir. 2005); see also O'Connor v.
Consol. Coin Caterers Corp., 517 U.S. 308, 312–13 (1996) (prima facie case requires
evidence adequate to create inference of discrimination, which cannot be drawn from
the replacement of one worker with another worker insignificantly younger). Anderson
does not contest that an older driver took over his route upon his termination.
Anderson argued below instead that "similarly situated younger employees were
not subject to termination . . . for similar minor accidents which may or may not have
gone unreported and/or investigated." Even if we were to assume that he could
establish a prima facie case on this argument, it fails to establish pretext. He has not
provided sufficient, specific evidence of disparate treatment to survive summary
judgment. Anderson advanced no arguments to the district court regarding pretext as
to age discrimination different from those offered as to his race discrimination claim,
which we hold insufficient for the reasons stated above. Summary judgment was proper
as to Anderson's age discrimination claim as well.
III. Conclusion
For the foregoing reasons, we affirm. We deny Durham's motion to strike
improper factual allegations as moot based on our holdings here.
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