Derald Ritchey v. City of Independence ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-2109
___________
Derald Richey, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
City of Independence; Debra Craig, *
*
Appellees. *
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Submitted: January 14, 2008
Filed: September 3, 2008
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Before COLLOTON and SHEPHERD, Circuit Judges, and ERICKSON,1 District
Judge.
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COLLOTON, Circuit Judge.
Derald Richey was terminated by the City of Independence, Missouri, in May
2004. Richey sued the City and his human resources director, Debra Craig, under
Title VII and 42 U.S.C. § 1983. Richey later dropped the Title VII claim and added
1
The Honorable Ralph R. Erickson, United States District Judge for the District
of North Dakota, sitting by designation.
a claim under the Missouri Human Rights Act (MHRA). The district court2 granted
summary judgment for the City on both remaining claims. Richey v. City of
Independence, No. 04-0823-CV-W-HFS, 2007 WL 1101207 (W.D. Mo. April 12,
2007). We affirm.
I.
Richey worked for the City of Independence from 1985 until May 2004 as a
park ranger. The City terminated his employment in May 2004, asserting that Richey
had violated the City’s personnel policies. The termination precipitated this lawsuit.
The events leading to the termination began in March 2004, when Connie
Knott, a park naturalist, complained to her supervisor, Susan Reynolds, that Richey
had become angry with her over matters relating to park policy. Knott later told
Reynolds that she felt threatened by Richey’s temper, and requested an alternate
workspace away from the park.
At about the same time, Richey called a human resources coordinator, Cleon
Wiggins, and asked for a meeting to say “some things that needed to be said.”
According to Wiggins’s report of the call, Richey first asked to meet with Reynolds,
Knott and Wiggins, or just Wiggins, to discuss his relationship with Knott. Richey
explained to Wiggins that Knott had inquired whether Richey had a girlfriend, and had
engaged in affectionate contact such as hugging or placing her head in his lap. Richey
told Wiggins that he recently told Knott that he did not like the physical contact, and
that she agreed to cease that behavior. According to Wiggins, Richey said “very
emphatically” that he did not want to make a claim of sexual harassment, and that he
wanted only to “clear the air.” In a meeting with Reynolds and Wiggins the next day,
2
The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
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Richey alleged that Knott had made inappropriate comments of a sexual nature to him,
that Knott had hugged him on at least two occasions, and that she had once showed
up at his house unannounced on a Sunday morning to take him to church.
Wiggins and Reynolds conducted an investigation into Richey’s allegations
about Knott, and determined that they were unsupported. Knott denied that she had
made sexual comments to Richey. She also told Reynolds that Richey had asked her
to take him to church. She gave Reynolds a map that Richey had drawn for her to
show her the way to his house. When Jim Fisher, the Parks and Recreation Director,
told Richey that his allegations against Knott were unsubstantiated, Richey was
distraught and told Fisher, “I guess I was wrong for doing this.” Richey later said that
when he made this admission, he “was kind of being sarcastic in a way.”
As part of the investigation, Fisher and others examined Richey’s personnel
file. They discovered several reports regarding previous angry outbursts by Richey,
dating back to 1987. These included a documented suspension from work in August
1999 for violations of regulations concerning workplace violence after Richey
threatened to kill himself and his wife, summaries of confidential interviews with
employees in August 1999 recounting that Richey also had threatened to kill his
supervisor, and a memorandum from another park employee in November 2002
regarding “violent verbal outbursts” and “paranoid behavior” by Richey.
On April 13, 2004, Fisher wrote to the city manager, Robert Heacock,
summarizing his investigation and recommending that Richey be suspended pending
termination for violations of two sections of the City’s personnel policy. Fisher
described incidents during March 2004 in which Richey became angry with Knott
over various matters, and reported that Richey had made allegations of sexual
harassment against Knott. Fisher’s recommendation asserted that Richey violated city
policy against “[f]iling a grievance or complaint against a city employee or officer,
which the employee knows to be false,” explaining that Richey’s “allegations of
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sexual harassment were found to be without merit after investigation.” The
recommendation also stated that Richey violated a personnel policy against
“[t]hreatening, fighting with, intimidating, coercing, or abusing other employees,”
because Richey’s “verbal intimidation and abuse of another employee served to create
a hostile work environment at George Owens Nature Park.”
Heacock approved this recommendation, and suspended Richey without pay for
ten days on April 19, pending termination. Richey requested and was granted a
hearing with a personnel board, comprised of five citizens of the City who were not
city employees. Richey was present at the May 24 hearing along with his counsel, and
he presented and cross-examined witnesses.
The personnel board found that Richey had committed the two violations of
policy cited by Fisher, and approved Fisher’s recommendation that Richey be
terminated. The board specifically found that Richey “knowingly made false
complaints and allegations against Ms. Knott,” and, with respect to the second
violation concerning intimidation or abuse of other employees, noted that Richey had
previously been suspended for workplace violence issues. Heacock accepted this
recommendation, and terminated Richey effective May 3, 2004.
Richey sued the City and its human resources director, Debra Craig, under 42
U.S.C. § 1983 for alleged violations of his constitutional rights. Richey also filed a
claim under Title VII, but later dropped that allegation and added a claim under the
Missouri Human Rights Act alleging unlawful retaliation. The district court granted
summary judgment for the City and Craig, holding that neither the City nor Craig had
violated Richey’s constitutional rights, and that the City had not violated the MHRA.
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II.
We review the district court’s grant of summary judgment de novo, granting
Richey all reasonable inferences without resorting to speculation. Johnson v. Ready
Mixed Concrete Co., 424 F.3d 806, 810 (8th Cir. 2005). We will affirm if the City has
shown that there is no genuine issue of material fact and that it is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(c).
Richey first argues that he was fired for opposing sex discrimination made
unlawful by the MHRA. The MHRA makes it unlawful for an employer to
discriminate against any individual with respect to the terms, conditions, or privileges
of employment because of sex. Mo. Rev. Stat. § 213.055. The statute further
provides that it shall be an unlawful discriminatory practice “to retaliate or
discriminate in any manner” against a person “because such person has opposed” sex
discrimination forbidden by § 213.055. Mo. Rev. Stat. § 213.070(2). To prove a
violation of the MHRA, a plaintiff alleging unlawful retaliation must prove (1) that
he engaged in protected activity, and (2) that “as a direct result, he . . . suffer[ed] . . .
damages due to an act of reprisal.” Keeney v. Hereford Concrete Prods., 911 S.W.2d
622, 625 (Mo. 1995) (en banc).
The retaliation prohibition in the MHRA parallels a similar provision under
federal law in Title VII. Both statutes contains an opposition clause, which prevents
employers from firing an employee for opposing an unlawful employment practice.
Mo. Rev. Stat. § 213.070(2); 42 U.S.C. § 2000e-3(a). The prohibitions on retaliation
in the MHRA and Title VII are not “identical in scope and purpose,” Keeney, 911
S.W.2d at 625 n.1, but the differences between the statutes are not at issue here.3 The
3
The MHRA’s provision on retaliation, unlike the parallel provision in Title
VII, can be invoked by a plaintiff who is not employed by the defendant, even if the
plaintiff’s prospects for employment are not affected. Keeney, 991 S.W.2d at 624-26.
There is no question that Richey was a city employee and that he was terminated.
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relevant issue is whether Richey was fired “because [he] opposed any practice
prohibited by [the MHRA].” Mo. Rev. Stat. § 213.070(2). We see no analytical
difference between this prohibition, and the parallel prohibition in Title VII, which
makes it unlawful to terminate an employee “because he has opposed any practice
made an unlawful employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a).
Thus, we may look to our precedents on retaliation in the Title VII context for
guidance in evaluating Richey’s claim under the MHRA. See Carter v. Chrysler
Corp., 173 F.3d 693, 700 n.5 (8th Cir. 1999); Finley v. Empiregas, Inc., 975 F.2d 467,
473 (8th Cir. 1992); cf. Cross v. Cleaver, 142 F.3d 1059, 1074-76 (8th Cir. 1998)
(holding that it was not plain error to issue a combined retaliation instruction on Title
VII and the MHRA because there does not appear to be any “effective difference”
between the participation clauses in the MHRA and Title VII.).
The district court concluded that Richey had not met the first element of a
retaliation claim, because he had not engaged in protected activity. The court
observed that Richey never complained of unlawful sex discrimination, and that by
his own characterization, he merely sought to “clear the air” between himself and
Knott. The court then concluded, alternatively, that even if Richey’s conduct was
protected, he failed to present a submissible case that the City terminated him because
of his opposition to sex discrimination. Applying Gilooly v. Mo. Dep’t of Health and
Senior Servs., 421 F.3d 734 (8th Cir. 2005), the court ruled that where there is no
good reason to challenge the good faith of the employer’s conclusion that the
employee made false accusations, objective evidence that corroborates the conclusion
of the evaluators is sufficient to justify a grant of summary judgment. The court
further concluded that it was “entirely unlikely” that Richey could prevail in this case,
because the record showed that “the dominant reason for the discharge was that the
City had had enough personnel trouble with Richey, mostly related to insufficient
anger control, and the failure to discharge him several years earlier, when it had been
recommended, was apparently regretted by the new City Manager who took the final
adverse action.”
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If we assume for the sake of argument that Richey had an objectively
reasonable belief that his reports to city management about Knott were opposition to
a violation of the MHRA, see Evans v. Kansas City, Mo. Sch. Dist., 65 F.3d 98, 100
(8th Cir. 1995), we agree with the district court that there is no genuine issue for trial
on the question whether the City terminated Richey because he opposed unlawful
activity. Retaliation claims in which there is no direct evidence of discrimination
typically are analyzed under the framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-04 (1973). See, e.g., Culton v. Mo. Dep’t of Corrections, 515 F.3d
828, 830 (8th Cir. 2008). Under that approach, if a plaintiff makes a prima facie case
of unlawful retaliation, then the employer must produce a legitimate, non-
discriminatory reason for the employment action. If the employer does so, then the
plaintiff has the burden of persuasion to show that the employer’s proffered reason is
a pretext for unlawful discrimination. Id.
The employer’s proffered reason in this case was that Richey violated personnel
policies of the City. An employee who engages in protected activity is not insulated
from adverse action for violating workplace rules, and an employer’s belief that the
employee committed misconduct is a legitimate, non-discriminatory reason for
adverse action. Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (en
banc). The normal rule in discrimination cases is that if an employer honestly believes
that an employee is terminated for misconduct, but it turns out later that the employer
was mistaken about whether the employee violated a workplace rule, the employer
cannot be liable for discrimination. Stuart v. Gen. Motors Corp., 217 F.3d 621, 637
(8th Cir. 2000). If the employer takes an adverse action based on a good faith belief
that an employee engaged in misconduct, then the employer has acted because of
perceived misconduct, not because of protected status or activity. “The relevant
inquiry is whether the [employer] believed [the employee] was guilty of the conduct
justifying discharge.” Scroggins v. Univ. of Minn., 221 F.3d 1042, 1045 (8th Cir.
2000) (internal quotation omitted). Therefore, a plaintiff seeking to avoid summary
judgment under the McDonnell Douglas framework must demonstrate more than a
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genuine issue of material fact as to whether the employee violated workplace rules.
He must show a genuine issue of fact about whether the employer acted based on an
intent to retaliate rather than on a good faith belief that the employee violated a
workplace rule. Id.
This general proposition was tested in Gilooly. Our court reversed a grant of
summary judgment in favor of a state agency that discharged an employee after
determining that the employee falsely accused another employee of sexual
harassment. In that case, the court said that an employer cannot legitimately fire every
“employee who files a Title VII claim and is disbelieved.” Gilooly, 421 F.3d at 740.
But the court also said that a plaintiff cannot “file false charges, lie to an investigator,
and possibly defame co-employees, without suffering repercussions simply because
the investigation was about sexual harassment.” Id. “Differentiating individual cases
between the two extremes,” said the court, “is a difficult endeavor at the summary
judgment stage.” Id.
Gilooly ultimately held that summary judgment was inappropriate on the facts
presented there, because the employer’s disbelief in the employee was “founded solely
on the statements of other employees and witnesses,” id. at 740, rather than on
“independently verifiable evidence” or “independent corroboration . . . from neutral
non-parties.” Id. at 740-41 & n.2. The court stated that “[h]ad the investigator found
a clearer record of deception and detailed the basis for such findings, a court could
find that the firing was not for protected conduct.” Id. at 741. The Gilooly court held
that “the question” – that is, whether the firing was “for protected conduct” – was
largely undeveloped in that case and “best left to a fact-finder to decide.” Id.
We take this discussion in Gilooly to mean that when an employer is presented
with a “he said, she said” set of facts involving two employees, and the employer
chooses to disbelieve and discipline the employee who had engaged in protected
opposition to unlawful activity, then the employee’s claim of retaliation must go to a
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jury. The jury must decide whether the employer took the adverse action because of
a good faith belief that the employee made false accusations (in which case there is
no liability, see EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1176 (11th Cir.
2000)), or because the employee opposed unlawful activity (in which case the
employer’s conduct would violate Title VII or the MHRA). But where the employer
proffers a good faith belief in misconduct that is supported by some independent
corroboration, then the employee, to avoid summary judgment, must present
additional evidence that the employer’s explanation is pretextual, and that the
employer really acted because of the employee’s protected activity.4
In this case, the City presented the decision of its personnel board that Richey’s
report was false. Unlike the determination in Gilooly, which our court said was based
only on the testimony of interested witnesses and the report of an investigator, the
City’s finding here was supported by independently verifiable evidence. One element
of corroboration was documentary proof. Richey had asserted to city management
that Knott had pursued him romantically, showing up at his house unannounced to
attend church. Knott denied this allegation, stated that Richey had asked her to pick
him up for church, and gave the City a map that she said Richey drew for this purpose.
This documentary evidence bolsters the City’s conclusion that Richey had falsely
accused Knott of improper advances, and “that the church-going visit was consensual
rather than uninvited stalking.” Richey, 2007 WL 1101207, at *2. The City also
relied on an admission from Richey, after he was confronted about making false
accusations, that “I guess I was wrong for doing this.” Despite Richey’s later efforts
4
This analysis is consistent with the district court’s understanding of Gilooly:
“The Circuit may ultimately adopt [the Gilooly dissenting opinion’s] view that good
faith beliefs of the employer should suffice, in defending retaliation claims. Short of
that, I do not think the Gilooly majority insists on air-tight corroboration of a claim
of false or knowingly exaggerated defamatory testimony. Corroboration, particularly
in the form of documents that a complainant has difficulty in explaining, should
suffice where there is no good reason to challenge the good faith of a conclusion based
on investigation.” Richey, 2007 WL 1101207, at *2.
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to dismiss his admission as sarcasm, his statement against interest offers further
corroboration for the City’s good faith belief that Richey violated city policies by
making a false complaint about another employee. The City’s presentation here is
thus distinguishable from Gilooly.
In addition to its conclusion that Richey made false allegations against Knott,
the City proffered that it terminated Richey for a second reason, namely, his violation
of a workplace policy against “[t]hreatening, fighting with, intimidating, coercing, or
abusing other employees.” The City’s finding on this point was based on Knott’s
report concerning Richey’s outbursts and her fear of working with Richey, as well as
documentation showing that Richey had a history of making threats or violent verbal
outbursts in the workplace. This history included a prior suspension from work in
1999 for violating workplace violence regulations. Richey has not presented evidence
to suggest that the City’s reliance on his angry outbursts was false or pretextual.
Richey does argue that even if the City legitimately believed that his allegations
about Knott were false, the City’s proffered reasons were nonetheless pretextual,
because he did not file a formal complaint that would implicate the City’s policy
against “filing a false grievance or complaint.” In other words, Richey says that he
complained about Knott in a manner that qualified as protected opposition to sexual
harassment under the MHRA, but that his complaint was not formal enough to run
afoul of the City’s policy against filing false complaints.
We reject this contention. It is generally for an employer to interpret its own
policies, and the City determined here that Richey’s “allegations of sexual
harassment” constituted the filing of a false grievance or complaint against a city
employee. (City App. 253). Even if the City has misapplied its own policy,
moreover, that alone does not constitute evidence of discrimination. The City, like
any employer, “can choose how to run its business, including not to follow its own
personnel policies regarding termination of an employee . . ., as long as it does not
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unlawfully discriminate in doing so.” Haas v. Kelly Servs., Inc., 409 F.3d 1030, 1036
(8th Cir. 2005) (internal quotations omitted). Richey points to no evidence that the
City has applied its policy on false complaints arbitrarily or inconsistently, or that any
person situated similarly to Richey was not disciplined for violating the policy.
For these reasons, Richey presented insufficient evidence that the City’s finding
that he violated the policies against false complaints and intimidating or abusing other
employees was a pretext for unlawful discrimination. Accordingly, the district court’s
grant of summary judgment on the MHRA claim was proper.
Richey’s constitutional claims under § 1983 merely restate his MHRA
retaliation claims. They are not tied to any provision of the Constitution. We agree
with the district court that the City did not violate Richey’s constitutional rights.
The judgment of the district court is affirmed.
SHEPHERD, Circuit Judge, concurring in part and concurring in the judgment.
Richey’s violation of the City’s policy against intimidating or abusing other
employees is an independent and legitimate basis for terminating his employment,
regardless of whether he knowingly made a false complaint against another employee.
Accordingly, I see no need to address the more difficult issue, whether this case is
sufficiently factually distinguishable from Gilooly v. Mo. Dept. of Health & Senior
Servs., 421 F.3d 734 (8th Cir. 2005). Rather, I would affirm the district court’s grant
of summary judgment on Richey’s retaliation claims solely on the ground that Richey
has failed to offer any evidence that the City’s workplace intimidation justification
was pretextual.
Here, the City proffered two reasons for Richey’s termination: (1) his violation
of the City’s policy against false complaints and (2) his violation of the policy against
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intimidating or abusing other employees. This court has not articulated a rule to be
applied where an employer offers multiple nondiscriminatory reasons for an allegedly
retaliatory employment action. I submit that the Seventh Circuit has correctly
determined, “[W]hen a defendant has offered multiple nondiscriminatory reasons for
[an alleged discriminatory action], showing that one of these reasons is pretextual is
not enough, although there may be circumstances where ‘multiple grounds offered by
the defendant . . . are so intertwined, or the pretextual character of one of them so
fishy and suspicious, that the plaintiff could withstand summary judgment.’” Fischer
v. Avanade, Inc., 519 F.3d 393, 403-04 (7th Cir. 2008) (quoting Russell v. Acme-
Evans Co., 51 F.3d 64, 70 (7th Cir. 1995)). The Third, Sixth, and Ninth Circuits have
issued similar rulings. See Odima v. Westin Tucson Hotel Co., 991 F.2d 595, 600
(9th Cir. 1993) (vacating the judgment and remanding “[b]ecause [the district court’s]
finding that one of [the employer’s] proffered reasons was pretextual does not in itself
support the district court’s ultimate conclusion that [the employer] had discriminated
against [the employee]”); Logue v. Int’l Rehab. Assocs., Inc., 837 F.2d 150, 155 (3rd
Cir. 1988) (finding that “if an employer articulates several alternative and independent
legitimate, nondiscriminatory reasons, the falsity of one does not necessarily justify
finding the remaining articulated reasons pretextual.”); Cooley v. Carmike Cinemas,
Inc., 25 F.3d 1325, 1329 (6th Cir. 1994) (holding that “[w]here two or more
alternative and independent legitimate, nondiscriminatory reasons are articulated by
the defendant employer, the falsity or incorrectness of one may not impeach the
credibility of the remaining articulated reason(s).” (quoting Sims v. Cleland, 813 F.2d
790, 793 (6th Cir. 1987))).
This approach is sound because “it is not merely the falsity or incorrectness of
the articulated reason that gives rise to the conclusion of pretext” but “the resulting
absence of legitimate explanation for the suspect employment decision that warrants
the finding of discrimination.” Sims, 813 F.2d at 793. When an employer proffers
multiple nondiscriminatory justifications for an allegedly retaliatory action, a showing
of pretext as to one does not necessarily “result[] [in the] absence of [a] legitimate
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explanation . . . .” See id. Such a showing would only be sufficient if the remaining
nondiscriminatory reason(s) are tied to the invalid reason. See Fischer, 519 F.3d at
404; Russell, 51 F.3d at 70.
Applying the Seventh Circuit’s rule here, in order for this court to find that the
district court’s grant of summary judgment on Richey’s retaliation claims was
improper, Richey must make a showing of pretext with respect to both of the City’s
reasons unless the reasons are not sufficiently independent. See Fischer, 519 F.3d at
404; Russell, 51 F.3d at 70. I agree with the majority that Richey has provided no
evidence that the angry outbursts reason is not to be believed. See ante at 10.
Furthermore, these facts do not run afoul of the independence requirement. See
Fischer, 519 F.3d at 404; Russell, 51 F.3d at 69-70. Admittedly, Connie Knott is both
the subject of Richey’s sexual harassment allegation and the one who reported
Richey’s angry outburst that played a part in his termination. However, Richey had
a long and serious history of anger control issues preceding Knott’s report in March
2004, including a similar complaint from Knott’s predecessor in 2002 and a 1999
incident in which Richey allegedly threatened to kill himself, his wife, and his
supervisor. In light of Richey’s history, Jim Fisher, the City’s Parks and Recreation
Director who recommended Richey’s termination, stated that he would have done so,
even absent Richey’s allegedly false accusation. Therefore, I would affirm the district
court’s grant of summary judgment on the retaliation claims but only on the ground
that Richey presented insufficient evidence that his termination for violating the City’s
policy against intimidating other employees was a pretext for discrimination.
I concur in part and concur in the judgment.
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