Terry Tatum v. City of Berkeley ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-1741
___________
Terry Tatum; Michelle Baptiste; *
Bilal Olushola; Mark Stewart; *
Chris Blair; Russ Hardy; *
Quentin Randolph; Henry *
Williams; Dwayne Pearson; * Appeal from the United States
Thomas Madison; Joseph McNeal, * District Court for the
* Eastern District of Missouri
Appellants, *
*
v. *
*
City of Berkeley, *
*
Appellee. *
__________
Submitted: November 18, 2004
Filed: May 27, 2005
___________
Before RILEY, McMILLIAN and GRUENDER, Circuit Judges.
___________
McMILLIAN, Circuit Judge.
Seven African American individuals (collectively “plaintiffs”), all former or
current firefighters with the City of Berkeley, Missouri (“the City”), appeal from a
final judgment entered in the United States District Court1 for the Eastern District of
1
The Honorable Henry E. Autry, United States District Judge for the Eastern
District of Missouri.
Missouri in favor of the City on their claims of racial discrimination and retaliation
under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), 42 U.S.C.
§ 2000e et seq., and intentional infliction of emotional distress under Missouri law.
For reversal, plaintiffs argue that the district court erred in granting the City’s motion
for judgment as a matter of law (“JAML”), at the close of plaintiffs’ presentation of
evidence at trial, upon concluding that each plaintiff had failed to present legally
sufficient evidence for the jury reasonably to find in his or her favor on each claim.
For the reasons stated below, we affirm in part and reverse in part and remand the
case to the district court for further proceedings consistent with this opinion.
Jurisdiction in the district court was proper based upon 28 U.S.C. §§ 1331,
1343, and 1367. Jurisdiction in this court is proper based upon 28 U.S.C. § 1291.
The notice of appeal was timely filed pursuant to Fed. R. App. P. 4(a).
Background
In September 2001, plaintiffs filed a charge of racial discrimination with the
Equal Employment Opportunity Commission against the City. Thereafter, they
brought the present action in federal court. The complaint was originally filed by ten
plaintiffs, three of whom voluntarily dismissed their claims prior to trial. The
remaining plaintiffs are: Terry Tatum, Michelle Battiest,2 Bilal Olushola, Russell
Hardy, Quinten Randolph, Dwayne Pearson, and Joseph McNeal. Count I of the first
amended complaint alleged that plaintiffs were each subjected to racial discrimination
and retaliation in violation of Title VII and 42 U.S.C. § 1981(a). Count II contained
a supplemental claim under the Missouri Human Rights Act (“MHRA”), Mo. Rev.
Stat. § 213.010 et seq. Count III alleged intentional infliction of emotional distress
under Missouri law.
2
The spelling of this name as it appears in the court’s caption is consistent with
the caption on plaintiffs’ complaint.
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The case proceeded to trial on February 23, 2004. Through their presentation
of evidence, plaintiffs attempted to show that the City, primarily through the actions
of Lloyd Vester, the former acting city manager and acting fire chief for the City,
subjected each of them to racially-motivated adverse employment treatment.
Numerous witnesses were called to the stand, including each of the seven plaintiffs,
Lloyd Vester, and John Sczepanski, a white firefighter whom plaintiff Battiest had
accused of racially-motivated workplace harassment. The City vigorously cross-
examined each of the witnesses. After resting their case, plaintiffs voluntarily
dismissed their MHRA claim.
The City moved for JAML on plaintiffs’ remaining claims. The City argued
that, as to the Title VII claims, there was no direct evidence, nor sufficient indirect
evidence, of racial discrimination. The City maintained, for example, that plaintiffs
failed to identify any similarly situated individual outside the protected group who
had received more favorable treatment from the City. See Trial Transcript (Vol. IV)
at 131-34. The City suggested that the evidence established the following facts
beyond genuine dispute. Plaintiffs Tatum and McNeal were terminated as
probationary employees of the City because they falsified their written employment
applications, having each failed to disclose a prior arrest in response to a question
specifically asking for such information. Plaintiffs Hardy and Randolph were
terminated for testing positive for illegal drug use. Plaintiff Battiest, who alleged a
racially hostile work environment based upon the City’s failure to address her claims
of harassment by Sczepanski, failed to identify an adverse employment action taken
by the City or to show that the alleged harassment was motivated by race. Plaintiff
Pearson was initially terminated but was fully restored to his employment with the
City following a review by the Civil Service Board. Plaintiff Olushola, who alleged
that someone had put fertilizer in his oxygen mask, could not show that the City
failed to adequately investigate the matter. The City also argued that plaintiffs had
not presented any evidence of damages.
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In response, plaintiffs argued that they had each presented sufficient evidence
at trial to survive the City’s motion for JAML. Id. at 134-38. They maintain that the
evidence sufficiently demonstrated the following facts. Regarding the racial
discrimination claims of Tatum and McNeal, a similarly situated white probationary
firefighter, Robert Laramie, was also terminated by the City for falsifying his
application, but he was allowed to change his termination to a resignation. Kevin
Post, a white firefighter who was hired by the City and attended a training program
at the St. Louis County Fire Academy (“the Academy”) around the same time as
Tatum and McNeal, resigned from the City’s employment while attending the
Academy and yet he was allowed to continue using the City’s “turnout gear”; by
contrast, Tatum and McNeal were ordered to return the City’s turnout gear
immediately upon their terminations. The turnout gear was necessary to complete the
training program. Moreover, prior to being hired, Tatum resolved the City’s concerns
about the suspended imposition of sentence (“SIS”) on his record, which indicated
that he had a prior arrest. Battiest was harassed by Sczepanski and suffered
compensable emotional harm, regardless of the fact that she did not lose any pay or
benefits. When she formally complained of the harassment, the City did not
genuinely investigate her claims. Similarly, when Olushola reported that someone
had put fertilizer in his face mask, the City’s investigation was perfunctory and
disingenuous. Randolph and Hardy, who were ostensibly terminated for illegal drug
use, were nevertheless subjected to racially-motivated adverse treatment in the form
of multiple drug tests.
In addition, plaintiffs asserted: “[T]he one thread running through all the
complaints of harassment is that Lloyd Vester is the person who started it.” Id. at
136. Summing up their theory about Vester’s racial animus, plaintiffs contended:
Lloyd Vester is fired by a black man, Arbon Hairston, for acting
improperly with the city council. The city council hires Lloyd Vester as
acting City manager; fires Arbon Hairston, the black man. Lloyd Vester,
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first thing he does was . . . try to make it economically impossible for
Tatum and McNeal to go to the academy. When that didn’t work, . . .the
next workday, he went ahead and started the process . . . re-ordered the
background checks knowing that a public background check would not
reveal what he wanted to see because he knew going in that there was
a suspended imposition of sentence because he was on [Tatum’s] oral
boards the first time.
Lloyd Vester one month later fires Dwayne Pearson, two weeks
later fires Tatum and McNeal. In the space of that time, two more
African Americans quit. The man is unqualified for the job as was the
testimony. He got into the job, and within 60 days . . . half the African
Americans were gone, and the rest were complaining of harassment for
which perfunctory investigations were done.
Id. at 137.
Upon consideration of the parties’ arguments and the evidence presented at
trial, the district court granted the City’s motion for JAML. Regarding plaintiffs’
Title VII claims, the district court explained that, for each plaintiff, “[t]he issue is
whether the plaintiff has made a prima facie case such that a jury can be allowed to
determine as to each individual plaintiff whether the circumstances that they complain
of are the result of racial discrimination or racial bias, [and] whether there is any
racial animus that is the basis for the damage that they claim individually.” Id. at 141.
The district court held, without elaboration, that the evidence supporting plaintiffs’
Title VII claims was insufficient as a matter of law. The district court further held
that plaintiffs failed as a matter of law to establish their claims of intentional
infliction of emotional distress because proof of those claims depended upon proof
of the Title VII claims and, in any event, the evidence was insufficient as a matter of
law. Id. at 141-42. Thereafter, the district court entered judgment for the City, and
plaintiffs timely appealed.
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Discussion
We review de novo the district court's decision to grant the City’s motion for
JAML. Marvin Lumber & Cedar Co. v. PPG Indus., Inc., 401 F.3d 901, 906 (8th Cir.
2005). Rule 50(a) of the Federal Rules of Civil Procedure permits the district court
to enter judgment against a party in a jury trial on a claim or defense that the party
cannot maintain under the controlling law, so long as the party has been fully heard
on the issue and there is no legally sufficient evidentiary basis for a reasonable jury
to find for that party on the issue. See Kinserlow v. CMI Corp., 217 F.3d 1021, 1025
(8th Cir. 2000) (quoting Fed. R. Civ. P. 50(a)). We apply the same legal standard as
is applied for summary judgments. “In both Rule 56 motions for summary judgment
and Rule 50 motions for judgment as a matter of law, the inquiry is the same:
‘[W]hether the evidence presents a sufficient disagreement to require submission to
a jury or whether it is so one-sided that one party must prevail as a matter of law.’”
Id.; see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)
(Reeves) (“[T]he standard for granting summary judgment ‘mirrors’ the standard for
judgment as a matter of law, such that ‘the inquiry under each is the same.’”)
(citations omitted). In ruling on a motion for JAML, the court should review all of
the evidence in the record and draw all reasonable inferences in favor of the
nonmoving party, without making credibility determinations or weighing the
evidence. Reeves, 530 U.S. at 150.
Title VII discrimination claims
When Title VII claims of unlawful employment discrimination are analyzed
under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), “[w]hether judgment as a matter of law is appropriate in any particular
case will depend on a number of factors. Those include the strength of the plaintiff’s
prima facie case, the probative value of the proof that the employer’s explanation is
false, and any other evidence that supports the employer’s case and that properly may
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be considered on a motion for judgment as a matter of law.” Reeves, 530 U.S. at 148-
49. In the present case, the district court granted the City JAML upon concluding that
each plaintiff had not sufficiently established his or her prima facie case.
If a plaintiff fails to establish a legally sufficient evidentiary basis for the jury
reasonably to find just one element of his or her prima facie case, then JAML for the
defendant may properly be granted. Cf. Erenberg v. Methodist Hosp., 357 F.3d 787,
793 (8th Cir. 2004) (holding that the district court properly granted summary judgment
for the defendant where the plaintiff “did not prove a prima facie case of age
discrimination, because she failed to show that she was qualified for the position from
which she was discharged”).
In McDonnell Douglas Corp. v. Green, 411 U.S. at 802, the Title VII prima
facie burden was described as follows.
The complainant in a Title VII trial must carry the initial burden
under the statute of establishing a prima facie case of racial
discrimination. This may be done by showing (i) that he belongs to a
racial minority[3]; (ii) that he applied and was qualified for a job for
which the employer was seeking applicants; (iii) that, despite his
qualifications, he was rejected; and (iv) that, after his rejection, the
position remained open and the employer continued to seek applicants
from persons of complainant’s qualifications.
The Supreme Court added, however, that, as a general proposition, “[t]he facts
necessarily will vary in Title VII cases, and the specification above of the prima facie
proof required from respondent is not necessarily applicable in every respect to
differing factual situations.” Id. at 802 n.13. Since then, the Supreme Court has
repeatedly emphasized that “the precise requirements of a prima facie case can vary
3
In the present case, there is no dispute that all seven plaintiffs are within a
protected group and thus meet the first element of their respective prima facie cases.
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depending on the context and were ‘never intended to be rigid, mechanized, or
ritualistic.’” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting
Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)). Accordingly, we will
consider whether the evidence supports the prima facie case for each individual
plaintiff’s Title VII discrimination claim.
We begin by considering Battiest’s claim. Battiest asserted a hostile work
environment theory based upon allegations that her coworker, Szcepanski, subjected
her to racial harassment. See Brief for Appellant at 14-15 (“Michelle Battiest was
forced to work in a hostile work environment with John Sczepanski after he assaulted
her and Berkeley took no real action.”). To establish her prima facie case of racial
discrimination based on a hostile work environment, Battiest was required to show:
(1) that she belongs to a protected group, (2) that she was subjected to unwelcome
harassment, (3) that the harassment was based on race, (4) that the harassment
affected a term, condition, or privilege of her employment, and (5) that the City knew
or should have known of the harassment and failed to take proper remedial action.
See Pedroza v. Cintas Corp. No. 2, 397 F.3d 1063, 1068 (8th Cir. 2005) (Title VII
sexual harassment claim). Upon complete review of the evidence presented at trial,
viewed in the light most favorable to Battiest, we hold that plaintiffs did not present
a legally sufficient evidentiary basis on which the jury reasonably could have found
that the harassment she alleged was based on race or that the alleged harassment
affected a term, condition, or privilege of her employment. Accordingly, we hold that
the district court did not err in granting JAML for the City on her Title VII
discrimination claim.
Next we consider the claims of Hardy and Randolph, who were each terminated
by the City after testing positive for illegal drug use. At trial, neither Hardy nor
Randolph denied using illegal drugs. Nevertheless, on appeal, they maintain that the
jury reasonably could have found that their terminations were motivated by race
because they “were terminated under questionable circumstances and pursuant to
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Lloyd Vester’s implementation of the drug policy enacted under his watch.” Brief for
Appellants at 14.4 To satisfy their prima facie burdens, Hardy and Randolph were
each required to show: (1) that he belongs to a protected group, (2) that he was
qualified to be a Berkeley firefighter, (3) that he was subjected to an adverse
employment action, and (4) that the adverse action occurred under circumstances
giving rise to an inference of discrimination. See, e.g., Wheeler v. Aventis Pharms.,
360 F.3d 853, 857 (8th Cir. 2004) (Wheeler). To the extent Hardy and Randolph rely
on their respective terminations to show an adverse employment action, neither can
overcome the City’s facially legitimate reason for terminating them: their undisputed
use of illegal drugs in violation of the City’s zero-tolerance drug policy. To the
extent they contend that the drug testing itself was an adverse employment action,
plaintiffs have identified no evidence from which the jury reasonably could have
concluded that the drug testing was conducted in a racially discriminatory manner.
Accordingly, we hold that the district court did not err in granting JAML for the City
on their Title VII discrimination claims.
Next we consider Olushola. He bases his unlawful employment discrimination
claim on the assertion that he “was forced to resign when he could not get a loan from
his pension.” Brief for Appellants at 14. Because it is undisputed that Olushola
voluntarily resigned in order to draw his pension, see Trial Transcript (Vol. I) at 131,
his claim of racial discrimination rests upon a constructive discharge theory.
“[C]onstructive discharge is but one incident by which an employee can demonstrate
an adverse [employment] action.” MacGregor v. Mallinckrodt, Inc., 373 F.3d 923,
928 (8th Cir. 2004). “A constructive discharge occurs when an employee resigns
after the employer has created an intolerable working environment in a deliberate
attempt to compel such a resignation.” Id.
4
In the district court, plaintiffs argued that the racial discrimination claims of
Hardy and Randolph were not based on their terminations but, rather, were based on
the “multiple drug tests.” See Trial Transcript (Vol. IV) at 138.
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In the present case, Olushola testified that, prior to his resignation, he spoke
with Police Sergeant Jim Bakula, the chairman of the pension board, and requested
a loan from his pension account because of a family emergency; he added that he was
willing to pay back the loan in whatever manner the pension board deemed
appropriate. Trial Transcript (Vol. I) at 148-49. According to Olushola, Bakula’s
response was: “No. Can’t do it.” Olushola then asked him: “[H]ow am I able to get
a loan against my pension?” Bakula responded: “You have to quit. You have to
resign.” Id. at 149. Bakula subsequently sent Olushola a written correspondence
identifying a written provision which Bakula believed supported the denial of
Olushola’s loan request, but which Olushola interpreted as inapplicable to his
situation. Id. at 150. At a meeting of the pension board, the board decided against
granting Olushola a loan. Id. at 150-51. Thereafter, Olushola resigned. He testified
that he was not aware of any employee of the City who was allowed to borrow money
against his or her pension. Id. at 141, 151. Upon review, we hold that Olushola’s
testimony regarding his loan request does not reasonably support a finding that the
City took any action with the intent to create an intolerable working environment in
order to compel him to resign.
Because plaintiffs’ recitation of the facts also emphasizes the incident in which
someone allegedly put fertilizer in Olushola’s face mask,5 we now consider whether
that evidence, when added to the evidence regarding the denial of his loan request,
creates a legally sufficient basis for the jury reasonably to have found a constructive
discharge. On cross-examination, Olushola acknowledged that no policy of the City
permitted such malicious conduct, Trial Transcript (Vol. I) at 145, and further
acknowledged that there was probably nothing the City could have done to prevent
5
See Brief for Appellants at 3 (“Plaintiff Bilal Olushola had his breathing
apparatus tampered with – someone put fertilizer in his breathing mask – a potentially
life threatening occurrence. He complained, and the matter went up the chain of
command. Supposedly, an investigation, nothing happened. White firefighters felt
comfortable enough to so act because they were not punished for their actions.”).
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it. Id. at 147. Thus, upon viewing the record in its entirety, in the light most
favorable to Olushola, we still conclude that the evidence could not reasonably
support a finding that the City took any action with the intent to create an intolerable
working environment, in order to compel Olushola to resign. Accordingly, we hold
that the district court did not err in granting JAML for the City on Olushola’s Title
VII discrimination claim.6
Turning next to Pearson, we note that plaintiffs’ entire argument on appeal
regarding his Title VII discrimination claim is as follows:
Lloyd Vester had racial animus against African American
firefighters because Arbon Hairston, the African American City manager
fired him. Lloyd Vester [was] appointed Acting City manager and
Acting Fire Chief on August 19, 2001 and two weeks later fired Dwayne
Pearson on August 26, 2001 [sic]. Dwayne Pearson ha[d] to go through
the expense to hire an attorney to get his job back. Dwayne Pearson also
received treatment for stress because of the situation at Berkeley.
Brief for Appellants at 15 (citations to the trial transcript omitted).
Contrary to plaintiffs’ suggestion, the mere fact that an individual was
terminated by a person of a racial minority and then subsequently terminated a
different person of the same racial minority does not reasonably support an inference
that the second termination was motivated by racial animus. In the present case, the
evidence showed that the stated reason for Pearson’s termination in August 2001 was
6
Although Olushola does not assert a hostile work environment theory on
appeal, one might be inferred from the evidence regarding the incident involving his
face mask. In any event, Olushola could not establish the required prima facie
elements because the jury could not reasonably have concluded from the evidence
that the City should have anticipated the single incident or that the City failed to take
proper remedial action once the matter was reported.
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the accumulation of accidents involving his operation of fire department vehicles.
Pearson conceded that he had three such accidents in 2000 and, as a result, was
disciplined. See Trial Transcript (Vol. IV) at 114-15. In June of 2001, Pearson was
involved in a fourth incident, in which he failed to fully retract a fire truck ladder
before driving the truck into the firehouse. The error caused some damage to the
ladder and to the overhead door of the firehouse and also affected a response to a
call. Id. Vester testified that he made the decision to terminate Pearson after
investigating the June 2001 incident. Id. (Vol. III) at 169-71.
Pearson appealed his termination to the Civil Service Board in September
2001, and the Civil Service Board reversed Pearson’s termination and reinstated him
without any loss of pay or rank. Id. (Vol. IV) at 125-26. There is no evidence that
Pearson suffered any adverse employment action after his reinstatement. Thus, the
only possible adverse employment action that the jury could have found was the
August 2001 termination, which was later reversed. Upon consideration of the
totality of evidence, viewed in the light most favorable to Pearson, we hold that the
jury could not reasonably have concluded that the termination occurred under
circumstances giving rise to an inference of racial discrimination. We therefore hold
that the district court did not err in granting JAML for the City on Pearson’s Title VII
discrimination claim.
The two remaining plaintiffs are Tatum and McNeal, who were probationary
firefighters when the City terminated them ostensibly for failing to reference prior
arrests on the written employment application, notwithstanding a question specifically
asking for information about any prior arrests. Tatum and McNeal maintain that the
City’s justification – falsification of their employment applications – was merely a
pretext for racial discrimination. They claim that similarly situated white
probationary firefighters were treated more favorably than they were.
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To establish a prima facie case of racial discrimination based upon a disparate
treatment theory, Tatum and McNeal were each required to show that he: (1) is in a
protected group, (2) was qualified for the probationary firefighter position, (3)
suffered an adverse employment action, and (4) was treated less favorably than a
similarly situated employee outside the protected group. See, e.g., Tolen v. Ashcroft,
377 F.3d 879, 882 (8th Cir. 2004).
On appeal, Tatum and McNeal compare themselves to Kevin Post, a Caucasian
probationary Berkeley firefighter with whom they attended the Academy’s training
program. Around the same time that Tatum and McNeal were terminated, Post
resigned from his employment with the City. He was allowed to continue using the
City’s turnout gear and complete the training program, while Tatum and McNeal were
ordered to return their turnout gear immediately upon their terminations. As a result,
they were not able to complete the training program.
Although Post was similarly situated to Tatum and McNeal in some respects,
he was not similarly situated to them in one material respect. Post had voluntarily
resigned, whereas Tatum and McNeal had been terminated. We hold that the jury
could not reasonably have concluded from the evidence that Post was similarly
situated to Tatum and McNeal.
Tatum, alone, also suggests on appeal that Robert Laramie provides an example
of disparate treatment. Brief for Appellants at 3 (“Lloyd Vester allowed Robert
Laramie, a white male, who was terminated at the same time as Terry Tatum for the
same reason, to change his termination to a resignation.”).7 Laramie, like Tatum, was
7
McNeal does not make the same disparate treatment argument based upon
Robert Laramie’s resignation. It appears from McNeal’s testimony that he was
allowed to change his termination to a resignation. Trial Transcript (Vol. IV) at 93
(“ . . . I was allowed to change my status of being terminated or resigned.”), 110-11
(testifying that he was terminated on October 2, 2001, was told of the termination on
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terminated for falsifying his application. On direct examination, Vester recalled that
a union representative had come to him requesting that Laramie’s termination be
changed to a resignation. Trial Transcript (Vol. III) at 163. Tatum testified that he
received a letter from the local union offering to help negotiate with the City for his
resignation, as opposed to termination, but he never responded to the union’s letter.
Id. (Vol. I) at 92, 105. There is no evidence that Tatum, himself, asked the City to
change his termination to a resignation. Consequently, we hold that the jury could
not reasonably have concluded from the evidence that the City treated Tatum less
favorably than Laramie under similar circumstances.
We recognize that Tatum introduced additional evidence at trial regarding his
personal experience in the hiring process to support the inference that Vester’s
reliance on Tatum’s alleged falsification of his employment application was actually
a pretext for racial discrimination. See Trial Transcript (Vol. I) at 79-82. Tatum
testified that, after taking the City’s written examination, he went before an oral
interview panel which included: Henry Williams (African American), Jim Linhardt
(Caucasian), Lloyd Vester (Caucasian), and Jane Albert-Morris (African American).
After the interview, Albert-Morris, the City’s human resources director at the time,
telephoned Tatum and stated that he needed to come back in to discuss some issues
that had come up during a background check. Tatum indicated to Albert-Morris on
the telephone that he believed he knew what the issue was and would bring
documentation to set the matter straight. Shortly thereafter, Tatum met with Albert-
Morris in her office and then with Hairston, the city manager at the time, in his office.
According to Tatum, Albert-Morris told him that his background check revealed an
SIS, to which he responded that he had been told that the SIS would be removed from
his record and would not have to be disclosed on an application. He produced
documentation to support his explanation. Tatum further testified that, after also
discussing the matter with Hairston, and showing Hairston the documentation,
October 3, 2001, and submitted his letter of resignation on October 4, 2001).
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Hairston stated, in effect: “[T]his will suffice. And this will no longer be an issue.”
Id. at 82.
Although there is no evidence that Tatum ever spoke directly with Vester
regarding the SIS at the time he was being interviewed and hired, Vester’s integral
role in Tatum’s hiring process reasonably suggests that Vester became aware of the
SIS and Hairston’s verbal acceptance of Tatum’s explanation. That conclusion does
not necessarily prove that Vester was motivated by race when he later terminated
Tatum, but it does reasonably support the inference that Vester’s stated reason for
terminating Tatum – falsification of the application – was not his true reason. The
City presents no argument on appeal to dispel this inference, but merely continues to
assert that Tatum was lawfully terminated for falsifying his application. See Brief for
Appellee at 10-11. Viewing the evidence in the light most favorable to Tatum, we
conclude that the circumstances of Tatum’s termination reasonably give rise to the
inference that Vester’s stated reason for terminating him was a pretext for an unlawful
employment decision – possibly one motivated by race. We thus conclude that Tatum
presented sufficient evidence to establish a prima facie case, see Wheeler, 360 F.3d
at 857 (setting forth prima facie case based upon circumstantial evidence giving rise
to an inference of unlawful discrimination), and that the district court should not have
granted the City’s motion for JAML on Tatum’s Title VII discrimination claim.
Title VII retaliation claims
We now turn to plaintiffs’ Title VII retaliation claims. The following is
plaintiffs’ entire argument on appeal regarding the legal sufficiency of the evidence
at trial to support these claims.
In September 2001, all the African American firefighters at the
City of Berkeley went to the EEOC to complain about the racial
discrimination to Berkeley. See Tr., Vol. II, p. 95. Subsequently, they
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all suffered the adverse employment actions described [in plaintiffs’
brief on appeal]. The causal relation of the protected activity and the
adverse employment action can be inferred from the temporal proximity
of the protected activity and the adverse employment actions.
Brief for Appellants at 18.
It is well-established in this circuit that mere temporal proximity between an
employee’s protected activity and the employer’s adverse employment treatment
generally will not suffice to create a genuine issue of fact on a retaliation claim. See
Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir.) (en banc), cert. denied,
528 U.S. 818 (1999) (“Generally, more than a temporal connection between the
protected conduct and the adverse employment action is required to present a genuine
factual issue on retaliation.”). In the present case, there is no evidentiary basis on
which to make an exception to this general rule for any of the plaintiffs except Tatum.
As discussed above, Tatum established a genuine issue of fact as to whether Vester’s
stated reason for terminating him was a pretext for an unlawful employment decision.
Viewing the evidence in the light most favorable to Tatum, we conclude that the jury
reasonably could have found that Vester’s motivation was retaliatory. Accordingly,
we affirm the district court’s grant of JAML on each of the plaintiffs’ retaliation
claims, except for Tatum’s.
State law claim of intentional infliction of emotional distress
Finally, we consider plaintiffs’ state law claims of intentional infliction of
emotional distress, upon which the district court also granted the City’s motion for
JAML. The essential elements of this claim required plaintiffs to prove that (1) the
City’s conduct was extreme and outrageous, (2) the City acted intentionally or
recklessly, and (3) the City’s conduct caused plaintiffs to suffer severe emotional
distress. See Hendrix v. Wainwright Indus., 755 S.W.2d 411, 412 (Mo. Ct. App.
1988).
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The following is plaintiffs’ entire argument on appeal regarding the legal
sufficiency of the evidence supporting their emotional distress claims.
In this case, Plaintiffs have pleaded the aforementioned elements
necessary to state a claim for the intentional infliction of emotional
distress in Count III. Furthermore, Plaintiffs Russ Hardy, Michelle
Battiest and Dwayne Pearson all testified that they received treatment
for stress as a result of the problems at the City of Berkeley. Therefore,
the [District] Court should not have granted the City of Berkeley
[JAML] on the emotional distress claims.
Brief for Appellants at 19.
With the exception of Tatum, plaintiffs did not present legally sufficient
evidence to establish an issue of fact as to whether the City’s conduct was illegal,
much less “extreme and outrageous.” Cf. id. (where harassment of employee for
filing a complaint was illegal, it nevertheless did not rise to the level of “extreme and
outrageous” conduct). As to Tatum, even if we were to conclude that the evidence
was legally sufficient to support a reasonable finding that the City’s conduct toward
him was extreme and outrageous, plaintiffs failed to present legally sufficient
evidence from which the jury reasonably could have found that Tatum suffered severe
emotional distress. Accordingly, we hold that the district court did not err in granting
JAML on all of plaintiffs’ claims of intentional infliction of emotional distress.
Conclusion
For the reasons stated, we reverse the district court’s grant of judgment as a
matter of law for the City on Tatum’s Title VII racial discrimination and retaliation
claims. We affirm the judgment of the district court in all other respects. The case
is remanded to the district court for further proceedings consistent with this opinion.
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