Owens v. United States Department of the Army , 312 F. App'x 831 ( 2009 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 08-1503
    ___________
    Brenda C. Owens                      *
    *
    Appellant                      *
    *    Appeal from the United States
    vs.                            *    District Court for the Eastern
    *    District of Arkansas
    United States Department             *
    of the Army, Pete Green,             *     [UNPUBLISHED]
    Secretary                            *
    *
    Appellee                       *
    ___________
    Submitted: January 14, 2009
    Filed: March 2, 2009
    ___________
    Before BYE and GRUENDER, Circuit Judges, and KAYS,1 District Judge.
    ___________
    PER CURIAM.
    Brenda C. Owens sued her former employer, the United States Department of
    the Army, Pete Green, Secretary (the “Army”) alleging gender and age discrimination
    in violation of the Government Employee Rights Act of 1991, 42 U.S.C. § 2000e-
    1
    The Honorable Greg Kays, United States District Judge for the Western
    District of Missouri, sitting by designation.
    16a–16c after her termination. Owens appeals the district court’s2 order granting
    summary judgment in favor of the Army. This Court has jurisdiction under 28 U.S.C.
    § 1291 and now affirms.
    Owens was hired by Captain James Anderson on April 4, 2005, as a security
    guard at the Army’s Pine Bluff Arsenal (“Arsenal”) in Arkansas. Owens’
    employment was conditioned on the completion of an initial one-year probationary
    term. As a security guard, Owens was required to be qualified for entry or retention
    in the Personnel Reliability Program (“PRP”). One of the factors for disqualification
    from the PRP is “conviction of, or involvement in, a serious incident.”
    On November 4, 2005, Owens drove from work at the Arsenal to her sister’s
    residence, where a local drug task force was in the process of conducting a search
    pursuant to a warrant. The officers told Owens that because she had entered the
    property, her person and vehicle were also subject to search. When searching her
    vehicle, officers found two guns, a pill bottle containing 23 pills prescribed to
    someone else, a plastic bag containing a green leafy substance, and eight rounds of
    ammunition in the trunk. Based on this discovery, the officers issued two
    misdemeanor citations to Owens for possession of weapons and possession of
    instruments of a crime.
    On November 10, 2005 Captain Anderson placed Owens on non-duty status.
    Captain Anderson subsequently terminated Owens, effective November 21, 2005,
    because she was no longer qualified for the PRP based on her citations. Owens was
    terminated pursuant to 5 C.F.R. § 315.804, governing termination of probationary
    employees for conduct that occurred during the probationary period.
    2
    The Honorable Susan Webber Wright, United States District Judge for the
    Eastern District of Arkansas.
    -2-
    Owens alleged that she was treated unfairly as compared to a younger, male
    co-worker, Dustin Torrence, because she was terminated seventeen days after
    receiving her citations, and Torrence was retained approximately sixty days after his
    arrest on several felony counts. Torrence was hired as a security guard at the Pine
    Bluff Arsenal on January 18, 2005, and was required to maintain his qualifications for
    the PRP program. On May 12, 2005, Torrence was arrested by local police, and was
    released on bond the next day. Torrence apparently informed Captain Anderson two
    or three days later that he had been arrested, was being charged, and was going to
    fight the charges. Based on this information, Anderson placed Torrence on desk duty
    and prohibited him from carrying his firearm. On June 13, 2005, an information was
    filed charging Torrence with seven felonies for arson and burglary. Five of the counts
    occurred before Torrence was employed at the Pine Bluff Arsenal, and two counts
    occurred after. On June 15, Captain Anderson learned of the charges, and on June 23
    he requested that Torrence be removed from his position. Torrence’s removal
    proceeded pursuant to 5 C.F.R. § 315.805, which governs termination of probationary
    employees for reasons “based in whole or in part on conditions arising before his
    appointment.” On June 29 Torrence was given a Notice of Proposed Removal, and
    was provided an opportunity to respond. Torrence’s employment was terminated
    effective July 15, 2005.
    Owens contends that she established a prima facie case of both gender and age
    discrimination and that she presented evidence of pretext. She also contends that she
    presented direct evidence of discrimination on her gender claim. In support of her
    pretext argument, Owens asserts that she and Torrence were similarly situated in every
    respect. Owens asserts that the fact that Torrence remained employed for 63 days
    after informing Captain Anderson of the arrest constitutes direct evidence of
    discrimination and of pretext. Owens also contends that the District Court’s finding
    that “the criminal information against Torrence charges him with several crimes
    committed before the Pine Bluff Arsenal appointed him as a security guard on January
    -3-
    18, 2005,” is totally erroneous, because two of the counts occurred after his
    appointment with the Army.
    The Army contends that the difference in the regulations governing Owens and
    Torrence accounted for the difference in their treatment. The Army argues that
    Torrence’s entitlement to respond to the Notice of Proposed Removal resulted in his
    termination taking slightly longer than Owens’ termination. The Army also contends
    that the “same actor” inference applies in this case: because the same supervisor both
    hired and fired Owens over a relatively short period of time, the Army is entitled to
    an inference that his actions were not based on discriminatory criteria.
    The Court reviews a grant of summary judgment de novo, applies the same
    standard as the district court, and may affirm on any grounds supported by the record.
    Bass v. SBC Commc’ns, Inc., 
    418 F.3d 870
    , 872 (8th Cir. 2005) (citing Bechtold v.
    City of Rosemount, 
    104 F.3d 1062
    , 1068 (8th Cir. 1997)). Summary judgment is
    appropriate where the record shows that no genuine issue as to any material fact exists
    and that the moving party is entitled to judgment as a matter of law. 
    Bass, 418 F.3d at 872
    (citing Dorsey v. Pinnacle Automation Co., 
    278 F.3d 830
    , 834 (8th Cir. 2002)).
    Despite her assertion to the contrary, Owens did not present any direct evidence
    of discrimination. “Direct evidence for these purposes includes evidence of ‘remarks
    of the employer that reflect a discriminatory attitude,’ as well as ‘comments which
    demonstrate a discriminatory animus in the decisional process or those uttered by
    individuals closely involved in employment decisions.’” Roberts v. Park Nicollet
    Health Servs., 
    528 F.3d 1123
    , 1128 (8th Cir. 2008) (quoting EEOC v. Liberal R-II
    Sch. Dist., 
    314 F.3d 920
    , 923 (8th Cir. 2002); accord Libel v. Adventure Lands of Am.,
    Inc., 
    482 F.3d 1028
    , 1034 (8th Cir. 2007) (holding that “‘direct evidence is evidence
    showing 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
    -4-
    criterion actually motivated the adverse employment action’”) (quoting Griffith v. City
    of Des Moines, 
    387 F.3d 733
    , 736 (8th Cir. 2004)).
    Because Owens has offered no evidence that Captain Anderson, or anyone else
    at the Pine Bluff Arsenal, engaged in any conduct that could be considered direct
    evidence of discrimination, she must create “an inference of unlawful discrimination
    under the burden-shifting framework established in McDonnell Douglas Corp. v.
    Green, 
    411 U.S. 792
    , 
    93 S. Ct. 1817
    , 
    36 L. Ed. 2d 668
    (1973).” McGinnis v. Union
    Pac. R.R., 
    496 F.3d 868
    , 873 (8th Cir. 2007) (citing Russell v. City of Kan. City, 
    414 F.3d 863
    , 866-67 (8th Cir. 2005) (internal quotation marks omitted)). Under that
    familiar formula, Owens must first present a prima facie case of intentional
    discrimination. If she can do so, the burden shifts to the Army to articulate a
    legitimate, nondiscriminatory reason for its action. If the Army meets that minimal
    burden, Owens must show that the proffered nondiscriminatory reason is merely a
    pretext for unlawful discrimination. Putman v. Unity Health Sys., 
    348 F.3d 732
    , 735
    (8th Cir. 2003).
    Owens may establish a prima facie case of gender or age discrimination by
    showing that she (1) is within the protected class, (2) was qualified to perform her job,
    (3) suffered an adverse employment action, and (4) has facts that give rise to an
    inference of discrimination. 
    McGinnis, 496 F.3d at 874
    (establishing factors for
    gender discrimination) (citing Holland v. Sam’s Club, 
    487 F.3d 641
    , 644 (8th Cir.
    2007)); Riley v. Lance, Inc., 
    518 F.3d 996
    , 1000 (8th Cir. 2008) (establishing factors
    for age discrimination) (citing Arnold v. Nursing & Rehab. Ctr. at Good Shepherd,
    LLC, 
    471 F.3d 843
    , 846 (8th Cir. 2006)). Like the district court, we will presume that
    Owens was able to establish a prima facie case on both her claims. The Army
    proffered a legitimate non-discriminatory reason for terminating Owens: that she
    received misdemeanor citations that made her ineligible for her position as a security
    guard. Owens does not dispute the Army’s reason for her termination, but contends
    -5-
    that the Army discriminated against her by allowing Torrence to stay on the payroll
    for a longer period of time.
    Owens contends that she has established pretext by showing that Torrence was
    more leniently treated for the same conduct. Owens “can prove pretext by showing
    the employer meted out more lenient treatment to similarly situated employees who
    were not in the protected class.” Smith v. Allen Health Sys., Inc., 
    302 F.3d 827
    , 835
    (8th Cir. 2002) (citing Harvey v. Anheuser-Busch, Inc., 
    38 F.3d 968
    , 972 (8th Cir.
    1994)). Owens has the burden, however, to prove that “the compared employees were
    similarly situated in all relevant respects.” 
    Smith, 302 F.3d at 835
    (citing 
    Harvey, 38 F.3d at 972
    ). “At the pretextual stage of the analysis, ‘the test for determining
    whether employees are similarly situated to a plaintiff is a rigorous one.’” Johnson
    v. Univ. of Iowa, 
    431 F.3d 325
    , 330 (8th Cir. 2005) (citing Rodgers v. U.S. Bank, N.A.,
    
    417 F.3d 845
    , 853 (8th Cir. 2005)).
    Here, the Code of Federal Regulations, as opposed to Captain Anderson,
    dictated that Owens and Torrence be treated differently based on the fact that some
    of Torrence’s misconduct had occurred pre-employment and all of Owens’
    misconduct occurred post-employment. Owens’ termination was governed by 5
    C.F.R. § 315.804, which provides:
    when an agency decides to terminate an employee serving a probationary
    or trial period because his work performance or conduct during this
    period fails to demonstrate his fitness or his qualifications for continued
    employment, it shall terminate his services by notifying him in writing
    as to why he is being separated and the effective date of the action. The
    information in the notice as to why the employee is being terminated
    shall, as a minimum, consist of the agency’s conclusions as to the
    inadequacies of his performance or conduct.
    -6-
    In Owens’ case, the misdemeanor citations resulted in her failing “to demonstrate
    [her] fitness or [her] qualifications for continued employment.” The regulation
    governing Torrence’s dismissal, on the other hand, provides:
    when an agency proposes to terminate an employee serving a
    probationary or trial period for reasons based in whole or in part on
    conditions arising before his appointment, the employee is entitled to the
    following:
    (a) Notice of proposed adverse action. The employee is entitled to an
    advance written notice stating the reasons, specifically and in detail, for
    the proposed action.
    (b) Employee’s answer. The employee is entitled to a reasonable time for
    filing a written answer to the notice of proposed adverse action and for
    furnishing affidavits in support of his answer. If the employee answers,
    the agency shall consider the answer in reaching its decision.
    (c) Notice of adverse decision. The employee is entitled to be notified of
    the agency's decision at the earliest practicable date. The agency shall
    deliver the decision to the employee at or before the time the action will
    be made effective. The notice shall be in writing, inform the employee
    of the reasons for the action, inform the employee of his right of appeal
    to the Merit Systems Protection Board (MSPB), and inform him of the
    time limit within which the appeal must be submitted as provided in §
    315.806(d).
    5 C.F.R. § 315.805. The Army waited until Torrence had actually been charged (not
    arrested) to initiate termination proceedings. There is simply no evidence that this
    decision was motivated by discriminatory animus. Owens’ contention that by
    -7-
    following the applicable regulations the Army engaged in age or gender
    discrimination is not credible.
    Moreover, the Army correctly contends that because Captain Anderson both
    hired and fired Owens, an inference arises that his decision was not motivated by
    discriminatory animus. Peterson v. Scott County, 
    406 F.3d 515
    , 522 (8th Cir. 2005)
    (“This court has previously observed that it is not likely that a supervisor would hire
    an older woman and then discriminate against her on the basis of her age and
    gender.”) (citation omitted); Herr v. Airborne Freight Corp., 
    130 F.3d 359
    , 362-63
    (8th Cir. 1997) (“There is a strong inference that discrimination was not a motivating
    factor if the same person hired and fired the plaintiff within a relatively short period
    of time.”) (citing Rothmeier v. Inv. Advisers, Inc., 85 F.3d 1328,1337 (8th Cir. 1996);
    Lowe v. J.B. Hunt Transp., Inc., 
    963 F.2d 173
    , 174-75 (8th Cir. 1992)).
    The judgment of the district court is affirmed.
    _____________________________
    -8-
    

Document Info

Docket Number: 08-1503

Citation Numbers: 312 F. App'x 831

Judges: Bye, Gruender, Kays, Per Curiam

Filed Date: 3/2/2009

Precedential Status: Non-Precedential

Modified Date: 11/5/2024

Authorities (18)

James R. LOWE, Appellant, v. J.B. HUNT TRANSPORT, INC., ... , 963 F.2d 173 ( 1992 )

Sheila E. Peterson v. Scott County Scott County Sheriff's ... , 406 F.3d 515 ( 2005 )

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Judy A. Libel v. Adventure Lands of America, Inc. John M. ... , 482 F.3d 1028 ( 2007 )

Juan Bass v. Sbc Communications, Inc., and Participating ... , 418 F.3d 870 ( 2005 )

DAVID GRIFFITH, PLAINTIFF—APPELLANT v. CITY OF DES MOINES, ... , 387 F.3d 733 ( 2004 )

Richard HARVEY, Appellant, v. ANHEUSER-BUSCH, INC., Appellee , 38 F.3d 968 ( 1994 )

Willa Russell v. City of Kansas City, Missouri , 414 F.3d 863 ( 2005 )

Brenda Arnold, Appellant/cross-Appellee v. Nursing and ... , 471 F.3d 843 ( 2006 )

Clarence Putman v. Unity Health System , 348 F.3d 732 ( 2003 )

Riley v. Lance, Inc. , 518 F.3d 996 ( 2008 )

candis-smith-v-allen-health-systems-inc-allen-memorial-hospital , 302 F.3d 827 ( 2002 )

david-a-johnson-on-his-own-behalf-and-on-behalf-of-all-others-similarly , 431 F.3d 325 ( 2005 )

McDonnell Douglas Corp. v. Green , 93 S. Ct. 1817 ( 1973 )

Katharina Holland v. Sam's Club , 487 F.3d 641 ( 2007 )

David J. BECHTOLD, Plaintiff-Appellant, v. CITY OF ... , 104 F.3d 1062 ( 1997 )

Roberts v. Park Nicollet Health Services , 528 F.3d 1123 ( 2008 )

McGinnis v. Union Pacific Railroad , 496 F.3d 868 ( 2007 )

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