Rinesmith v. Central County Fire & Rescue , 156 F. App'x 856 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2032
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Judith Rinesmith, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Central County Fire & Rescue, *
A Fire Protection District, * UNPUBLISHED
*
Appellee. *
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Submitted: January 12, 2005
Filed: December 23, 2005
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Before MELLOY, SMITH, and COLLOTON, Circuit Judges.
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PER CURIAM.
Judith Rinesmith filed a gender discrimination claim against Central County
Fire & Rescue under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-
2000e-17, and the Missouri Human Rights Act, Mo. Rev. Stat. §§ 213.010-213.137.
The district court granted Central County’s motion for summary judgment, but we
conclude that there is a genuine issue of material fact for trial. We therefore reverse
and remand for further proceedings.
I.
Judith Rinesmith worked as the Administrator for Central County Fire &
Rescue for twelve years. Rinesmith testified that in that capacity, she was responsible
for human resources, including workers’ compensation claims and benefits. As part
of her responsibilities, she was liaison with the workers’ compensation carrier, and
handled the reporting, paperwork, and documentation for workers’ compensation
claims.
On July 14, 2001, Matt Dermody, a firefighter employed by Central County,
injured himself on the job. Dermody received medical treatment and was released for
light work by Central County’s doctor. Dermody testified that he failed to appear for
light duty work, and when Rinesmith called his home to find out why he was not
working, Dermody indicated that he had to watch his children and asked if he could
take vacation or sick time instead of performing light duty. Deputy Chief Russ Mason
testified that Dermody spoke with him and made a similar inquiry. Mason informed
Dermody that Central County would have to determine whether the proposed leave
time would be acceptable.
Rinesmith testified that she contacted Central County’s workers’ compensation
carrier to inquire about the Dermody matter, and was informed that the insurance
carrier would not pay for leave because Dermody was cleared for light work.
Rinesmith further testified that the insurance company suggested that she draft a
release for Dermody. Despite never having drafted a release for that or any other
purpose, Rinesmith created one. Rinesmith said she explained the situation to Deputy
Chief Mason, and he told her to “[g]o ahead and do it.” The release drafted by
Rinesmith concluded by saying, “[b]ecause of a babysitting problem, I am electing to
take voluntary sick and vacation time instead of doing the light duty, as required by
the Memorandum of Understanding. I will not at any time now or in the future, try
to claim this accident as a lost time accident.”
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Dermody contacted his shop steward and a union attorney about the release.
Deputy Chief Mason testified that the shop steward later told him that there was a
problem related to Dermody’s workers’ compensation, and that the union’s attorney
wanted to speak with Mason or Chief Frank Schlenke. Mason recognized that the
release was problematic, and that it exposed Central County to potential liability.
The Board of Directors for Central County held ultimate authority over Central
County Fire & Rescue. During the relevant period, the three members of the Board
were one man, David Tilley, and two women, Cynthia Loehrer and Daryl Varner. At
a meeting on September 20, 2001, the Board, by a two to one vote, recommended the
discharge of Judith Rinesmith and ordered a special meeting to consider her response.
The Board concluded that the release prepared by Rinesmith constituted a release and
waiver of Dermody’s lawful claim for benefits, and that his substantial rights would
have been unlawfully compromised had he signed the document. The Board thus
determined that the attempted use of the release was “a matter of gross incompetence
and misconduct.”
Following the vote, Daryl Varner, the dissenting member of the Board,
mentioned to Chief Schlenke that “we wouldn’t be going through this, if Judith was
one of the fellows.” In an interview with the EEOC, Varner said that her statement
concerning “the fellows” referred to “firefighters, as I think about it, just the District
as a whole, mainly firefighters.” At a deposition in this case, Varner said “the
fellows” referred to union members, and she meant that Rinesmith was treated
differently because she was not a firefighter and therefore not a member of the union.
(App. 362).
At a follow-up meeting of the Board on October 4, Varner changed her vote.
Varner explained that she ultimately voted against retaining Rinesmith, because “I
think the fact that Judith had put the District at risk, and that she did not, in my
opinion, see that she had put the District at risk, and as a Trustee of the Fire District,
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I felt like that she needed to be terminated for that reason.” Rinesmith’s termination
was a departure from Central County’s ordinary four-step progressive disciplinary
procedure, which escalates from an oral warning to a written warning to a suspension,
and finally to a discharge. Varner testified that the Board thought that Rinesmith’s
violation was so serious that the Board moved directly to the final step.
II.
The district court held that, “[c]onstruing Plaintiff’s evidence in the light most
favorable to her, . . . the evidence, whether direct or indirect, is insufficient to indicate
that gender played a role in the Board’s decision to terminate Plaintiff’s employment.”
On this basis, the court granted summary judgment in favor of Central County, and
dismissed the case. We conclude, however, that the statement by Board member
Varner is sufficient direct evidence of discrimination to create a genuine issue of fact
for trial.1
The principal question on this appeal is whether Varner’s statement to the effect
that Rinesmith would not have been fired if she were “one of the fellows” constitutes
sufficient direct evidence of employment discrimination under our precedents to bring
the case to trial. Direct evidence is “not the converse of circumstantial evidence,” but
rather “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 criterion actually motivated’ the adverse employment action.”
Griffith v. Des Moines, 387 F.3d 733, 736 (8th Cir. 2004) (quoting Thomas v. First
Nat’l Bank of Wynne, 111 F.3d 64, 66 (8th Cir. 1997)). “Comments which
demonstrate a ‘discriminatory animus in the decisional process’ or those uttered by
individuals closely involved in employment decisions may constitute direct evidence.”
1
We analyze Rinesmith’s claims under Title VII and the Missouri Human
Rights Act using the same legal principles. Duncan v. General Motors Corp., 300
F.3d 928, 930 n.2 (8th Cir. 2002).
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Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991) (quoting Price Waterhouse
v. Hopkins, 490 U.S. 228, 278 (1989) (O’Connor, J., concurring)) (internal citation
omitted).
In EEOC v. Liberal R-II School District, 314 F.3d 920 (8th Cir. 2002), we
considered similar evidence in the context of suit alleging age discrimination. In that
case, the plaintiff, a school bus driver, was terminated at age 70. The plaintiff bus
driver introduced evidence that the superintendent of schools, who was present when
the Board of Education decided to fire the plaintiff, told the plaintiff that the Board
thought he was “too old to drive a bus.” Id. at 924. Although the superintendent was
not a decisionmaker, he was “closely involved in the decisionmaking process” and
“was directed to express the decision of the decisionmakers to the employee.” Id. If
taken in the light most favorable to the plaintiff, his “expressions indicated the actual
decisionmakers may have based their decisions, at least in part, on age-based animus.”
Id.
Similarly, although Varner initially voted against removing Rinesmith from her
position, she was a member of the decisionmaking body, closely involved in the
decisionmaking process, and present when the majority of the Board of Directors
decided to suspend Rinesmith and recommend her discharge. Rinesmith contends that
Varner’s statement, taken in the light most favorable to Rinesmith, supports an
inference that those who made the decision based it, at least in part, on the fact that
Rinesmith was a woman, rather than “one of the fellows.” In its only response to this
argument, Central County insists, based on Varner’s later testimony, that her reference
to “the fellows” meant only that Rinesmith would have preserved her job if she were
a firefighter, or a member of the union, or a team player. These are reasonable
interpretations, but the statement also reasonably bears the meaning that the
termination would not have occurred if Rinesmith had been a man. See Webster’s
Third New International Dictionary 836 (1993) (defining “fellow,” inter alia, as
“man”). Given the different potential interpretations of Varner’s statement to Chief
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Schlenke, and Varner’s own arguably shifting explanations, it remains for a finder of
fact to determine whether her explanation is credible, or whether the evidence better
supports an inference that she really meant the decisionmakers had acted based in part
of Rinesmith’s sex. Taken in the light most favorable to Rinesmith, we conclude that
Varner’s statement is sufficient to create a genuine issue for trial.
That two members of the Board of Directors were women does not preclude a
finding of sex discrimination. Women may discriminate against women, see Oncale
v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79 (1998), and “[b]ecause of the
many facets of human motivation, it would be unwise to presume as a matter of law
that human beings of one definable group will not discriminate against other members
of their group.” Castaneda v. Partida, 430 U.S. 482, 499 (1977). Nor would
Rinesmith’s claim be defeated by a showing that the Board would have terminated her
even in the absence of an impermissible motivating factor. That defense pertains only
to the appropriate remedy in a Title VII sex discrimination case. Wolff v. Brown, 128
F.3d 682, 683-84 (8th Cir. 1997). In any event, we cannot say the record establishes
beyond dispute that Rinesmith’s conduct would have led the Board to reach the same
decision regardless whether she was “one of the fellows.” Viewed in the light most
favorable to Rinesmith, Varner’s comment refutes that proposition, because it
suggests that a “fellow” who made the same serious mistake would not have been
fired.
In her brief, Rinesmith points to other evidence that she says would support a
finding of sex discrimination. We find this evidence underwhelming, and absent the
direct evidence from Varner’s statement, we think the district court’s grant of
summary judgment could be sustained. But as in Liberal R-II School District, we
must recognize that although Rinesmith “may not have a particularly strong case for
a jury, we are not the jury.” 314 F.3d at 923. Our duty is to view the record in the
light most favorable to Rinesmith, and having done so, we find a genuine issue for
trial.
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* * *
The judgment of the district court is reversed, and the case is remanded for
further proceedings consistent with this opinion.
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