Ann Bogren v. State of MN , 236 F.3d 399 ( 2000 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ________________
    No. 99-3516
    ________________
    Ann Bogren,                              *
    *
    Appellant,                 *
    *
    v.                                 *
    *
    State of Minnesota; Minnesota            *
    Department of Public Safety;             *
    Donald Davis, Commissioner of the        *
    Department of Public Safety, in his      *      Appeal from the United States
    official capacity; Minnesota State       *      District Court for the
    Patrol; Ann Beers, Chief of the State    *      District of Minnesota.
    Patrol, in her official capacity;        *
    Lieutenant Thomas Fraser of the          *
    State Patrol, personally and             *
    individually; Lieutenant Lori            *
    Hodapp of the State Patrol,              *
    personally and individually;             *
    Lieutenant Colonel Stephen               *
    Mengelkoch of the State Patrol,          *
    personally and individually,             *
    *
    Appellees.                 *
    ________________
    Submitted: June 16, 2000
    Filed: December 22, 2000
    ________________
    Before LOKEN, ROSS, and HANSEN, Circuit Judges.
    ________________
    HANSEN, Circuit Judge.
    Ann Bogren, a former probationary trooper with the Minnesota State Patrol,
    brings this action against the state alleging she was discriminated against on account
    of her race and gender and retaliated against in violation of Title VII of the Civil Rights
    Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1994). She also alleges claims pursuant
    to 
    42 U.S.C. §§ 1981
    , 1983 and 1985 against three state patrol employees in their
    individual capacities. Upon motions by the defendants, the district court1 granted
    summary judgment on Bogren's federal law claims, and she appeals. We affirm.2
    I.
    Bogren was accepted into the Minnesota State Patrol Academy in November
    1994 through a program designed to recruit women and minority applicants into the
    patrol. Bogren graduated from the academy in February 1995, the first black female
    to do so. Around the same time, the Minnesota Department of Public Safety launched
    an investigation into the training environment at the academy. The investigation was
    spawned by complaints from two former female cadets that academy instructors
    engaged in sexually harassing and discriminatory conduct. Bogren was interviewed
    during the investigation but did not identify any incidents where she was harassed or
    discriminated against.
    1
    The Honorable Paul A. Magnuson, Chief Judge, United States District Court
    for the District of Minnesota.
    2
    Bogren also brought claims against the state pursuant to the Minnesota Human
    Rights Act (MHRA), 
    Minn. Stat. Ann. §§ 363.01-363.15
     (West 1991), and common
    law negligence claims against all defendants. The district court dismissed the MHRA
    claim pursuant to the parties' stipulation and declined supplemental jurisdiction of the
    negligence claims after granting summary judgment on Bogren's federal law claims.
    2
    Following her graduation from the academy, Bogren began the patrol's phased
    field training program. In general, her field training officers (FTOs) provided favorable
    reports on her performance, but more than one identified her driving skills as an area
    requiring improvement. Her FTOs commented on her ability to comprehend material
    quickly and to get along with others, although by the end of her field training period
    Bogren had developed an antagonistic relationship with her primary FTO, Trooper
    Brian Polansky. According to Polansky, Bogren's driving performance regressed
    during the final phase of her field training period. He reported that Bogren committed
    traffic violations on an almost daily basis, despite his instruction on the necessity of
    avoiding such violations.
    Despite Polansky's concerns over her driving skills, Bogren advanced in May
    1995 beyond the field training program, was assigned a patrol car and began solo
    patrol. As a solo probationary patrol officer, Bogren generally received above average
    or satisfactory marks from her initial supervising lieutenant, Lieutenant Al Kutz, yet her
    driving problems continued to be a concern. On May 24, 1995, Bogren struck a
    metering light with her patrol car, knocking the light over. Another trooper, who
    happened upon Bogren and the downed metering light, asked Bogren how the light was
    knocked over. Bogren admitted that she struck the light, but when the officer informed
    Bogren that she needed to file an accident report with the patrol, Bogren was hesitant
    and had to be coaxed to make the report. Although Bogren filed the report the same
    day, the trooper reported to Kutz that she had to convince Bogren to make the report
    and that Bogren was not happy about it. Kutz later questioned Bogren about the light
    and specifically asked whether any damage occurred to her patrol car. Bogren denied
    damage but upon Kutz's inspection he noted that there was some. Bogren was also
    involved in an incident in August 1995 in which she made a U-turn on an interstate
    entrance, causing two other vehicles to crash.
    On the evening of October 22, 1995, Bogren, while off-duty, went to the home
    of her former boyfriend, Steve Johnson, to retrieve a set of keys. While in Johnson's
    3
    home, Bogren attempted to take a set of oriental tea cups she had previously given
    Johnson, and an argument ensued. During the argument, according to Bogren,
    Johnson's dog jumped up on her, causing her to drop the cups. She then left, and
    Johnson called the local police department to report the cup-breaking incident. He also
    called the patrol office and left a message complaining about Bogren's conduct.
    A local police officer responded to Johnson's call. Johnson told the officer that
    Bogren threw the cups at his feet. The same officer later called Bogren to ask her
    about the incident. Bogren admitted to the officer that she was at Johnson's home, that
    an argument occurred, and that cups were broken. The officer informed Bogren that
    he would be issuing and sending her a citation. In the officer's report of the incident,
    he noted that Bogren informed him that she threw down the cups, although Bogren
    denies ever making such an admission. Bogren received a citation for criminal damage
    to property.
    Lieutenant Thomas Fraser, the patrol supervisor on duty the night of the incident,
    returned Johnson's call around midnight to discuss the complaint against Bogren. He
    also contacted the local police officer who responded to Johnson's call. The next
    morning, Fraser relayed Johnson's complaint to his supervisor, Captain Stephen
    Mengelkoch, who in turn filed a complaint with the patrol's internal affairs division,
    reporting a charge that Bogren allegedly engaged in conduct unbecoming an officer.
    The task of investigating the complaint was ultimately assigned to Fraser. Fraser
    conducted taped interviews with Bogren, Johnson and a female companion of Johnson's
    who was at Johnson's home on the night of the incident. In his report, Fraser concluded
    that the charge of conduct unbecoming an officer was sustained. He further reported
    that Bogren was "untruthful and evasive" during her taped interview with him and that
    his investigation revealed Bogren had trouble controlling her anger.
    Following his investigation of the incident at Johnson's home, Fraser
    recommended to Captain Mengelkoch that Bogren's employment with the patrol be
    4
    terminated. Captain Mengelkoch agreed and assigned Lieutenant Lori Hodapp the
    responsibility of preparing a supervisors' report documenting the reasons for Bogren's
    termination. The final decision to terminate Bogren was made by Michael Chabries,
    Chief of the Patrol. Chabries stated in an affidavit that he made the termination
    decision based on conversations with and reports by Hodapp, Fraser and Mengelkoch.
    Bogren was notified of the termination decision on November 8, 1995, and was
    ultimately terminated on November 14, 1995. Shortly thereafter, Bogren pleaded guilty
    to the reduced charge of petty misdemeanor criminal damage to property.
    II.
    We review a district court's issuance of summary judgment de novo, applying the
    same standards as those employed by the district court. See Callas Enters., Inc. v.
    Travelers Indem. Co. of Am., 
    193 F.3d 952
    , 955 (8th Cir. 1999). Under Fed. R.
    Civ. P. 56(c), "[s]ummary judgment is proper if the evidence, viewed in the light most
    favorable to the nonmoving party, demonstrates that there is no genuine issue as to any
    material fact and that the moving party is entitled to judgment as a matter of law."
    Lynn v. Deaconess Med. Ctr.-W. Campus, 
    160 F.3d 484
    , 486 (8th Cir. 1998).
    A. Discriminatory Discharge
    Bogren advances theories of discriminatory discharge and hostile work
    environment in support of her Title VII claims against the state. As the district court
    recognized, her Title VII discriminatory discharge claim is analyzed under the well-
    recognized McDonnell-Douglas burden-shifting framework. See Roark v. City of
    Hazen, 
    189 F.3d 758
    , 761 (8th Cir. 1999) (citing McDonnell-Douglas Corp. v. Green,
    
    411 U.S. 792
    , 802 (1973)). To survive summary judgment, a plaintiff must first
    demonstrate a prima facie case of discrimination. See 
    id.
     A prima facie showing
    creates a legal presumption of unlawful discrimination and shifts the burden to the
    defendant to articulate a legitimate, nondiscriminatory reason for the plaintiff's
    termination. See O'Sullivan v. Minnesota, 
    191 F.3d 965
    , 969 (8th Cir. 1999). If the
    5
    defendant presents a nondiscriminatory reason, "the presumption of discrimination
    drops from the case" and the burden reverts to the plaintiff to show that the defendant's
    proffered reason for her termination is pretextual. 
    Id.
     "The ultimate burden of
    persuading the trier of fact that the defendant intentionally discriminated against the
    plaintiff remains at all times with the plaintiff." Texas Dep't of Community Affairs v.
    Burdine, 
    450 U.S. 248
    , 253 (1981).
    Following the Supreme Court's recent decision in Reeves v. Sanderson Plumbing
    Prods., Inc., 
    120 S. Ct. 2097
    , 2108-09 (2000), a plaintiff's prima facie case of
    discrimination, combined with sufficient evidence from which a reasonable fact finder
    could disbelieve an employer's nondiscriminatory explanation and make the ultimate
    fact-finding that illegal discrimination occurred, may form the requisite evidentiary
    basis upon which to submit to a jury the question of an employer's intentional, unlawful
    discrimination.3
    The district court assumed, as we do on appeal, that Bogren set forth sufficient
    evidence to support a prima facie case of discriminatory discharge. The court
    concluded, however, that she failed to establish a genuine issue that the state's proffered
    reason for her termination was a pretext for discrimination. After a thorough review
    of the record, we agree with the district court and conclude Bogren has not
    demonstrated that the state's proffered nondiscriminatory reason for her termination is
    pretextual.
    The state meets its burden of advancing a legitimate, nondiscriminatory reason
    for Bogren's termination from her probationary status. It contends Bogren's termination
    was triggered by the incident at Johnson's home, but that the decision was based on a
    3
    Although Reeves involved an Age Discrimination in Employment Act case, the
    reasoning is equally applicable in the Title VII context, within which the McDonnell-
    Douglas framework initially arose.
    6
    combination of considerations, including: 1) Bogren's conduct at Johnson's home; 2)
    her poor driving performance; 3) concerns over her accountability; 4) her evasiveness
    during the investigation of Johnson's complaint; and 5) concern that she might present
    a disciplinary problem after completion of her probationary period. We find sufficient
    evidence in the record to support the state's proffered explanation. Consequently, any
    presumption of discrimination "drops out of the picture." St. Mary's Honor Center v.
    Hicks, 
    509 U.S. 502
    , 511 (1993).
    Bogren therefore bears the burden to produce sufficient evidence from which a
    reasonable fact finder could conclude that the state's explanation is pretextual. As
    proof of pretext, Bogren presents evidence that white male troopers were not treated
    as harshly when disciplinary or performance issues arose in the past. While we
    recognize that instances of disparate treatment may be enough to present a jury
    question of whether an employer's proffered explanation is pretextual, Bogren must
    show that these other troopers were "similarly situated [to her] in all relevant respects."
    Lynn, 
    160 F.3d at 487
    . The district court rejected Bogren's reliance on comparable-
    trooper evidence because, with the exception of one officer, all of the troopers to whom
    Bogren compared herself were beyond the probationary period and were thus governed
    by a collective bargaining agreement. The court reasoned the collective bargaining
    agreement, with its attendant grievance procedures, would create a different response
    by the patrol in disciplining or terminating those officers.
    We agree with the premise underlying the district court's conclusion; troopers
    beyond the probationary period are not similarly situated to a probationary trooper. See
    Blanding v. Pennsylvania State Police, 
    12 F.3d 1303
    , 1309-10 (3d Cir. 1993)
    (recognizing that tenured troopers are not similarly situated to probationary troopers);
    see also Ghane v. West, 
    148 F.3d 979
    , 982 (8th Cir. 1998) (rejecting comparisons to
    similarly-situated, nonprotected employees because the comparable employees were
    not probationary employees and because their conduct did not rise to the same level as
    the plaintiff's). Consequently, assuming nonprobationary troopers were treated more
    7
    favorably than Bogren, we do not find that fact probative of whether the state's
    explanation is pretextual.4
    We respectfully disagree with the district court's conclusion that Bogren only
    compared herself to nonprobationary troopers. On appeal, Bogren presents scant
    evidence that the patrol did not discipline several white male probationary officers
    4
    Bogren attempts to show there is little difference between herself and the
    nonprobationary troopers, asserting that she could only be terminated by the patrol for
    just cause as specified in Minn. Stat. Ann. § 299D.03 subd. 8 (Supp. 2000).
    Subdivision 8 provides: "A trooper who has completed six months of continuous
    employment shall not be suspended, demoted or discharged except for just cause."
    (Emphasis added). We agree with the district court, however, that Bogren could be
    terminated without cause because she had not completed her 12-month probationary
    period, a triggering event for subdivision 8's just cause provision and the attendant
    termination proceedings identified in § 299D.03.
    Our conclusion is based on subdivision 7 of the same statute:
    Every person employed and designated as a state trooper under and
    pursuant to the provisions of this section, after 12 months of continuous
    employment, shall continue in service and hold the position without
    demotion, until suspended, demoted, or discharged in the manner
    hereinafter provided for one or more of the causes specified herein.
    (Emphasis added). Bogren was "employed and designated" as a trooper on February
    24, 1995. (Appellant's App. at 82). Because Bogren's termination occurred within a
    year after her designation as a trooper, we read subd. 7 to expressly provide that subd.
    8 is inapplicable, and the patrol was therefore entitled to terminate Bogren without
    reason. Our reading of § 299D.03 is consistent with the state patrol's collective
    bargaining agreement (CBA). See CBA, Article 15 § 7, Appellees' App. at 120
    ("Probationary employees shall not be subject to any arbitration provision of the
    Agreement nor shall the employee be subject to the provisions of M.S.A. § 299D.03.).
    We accordingly reject Bogren's assertion that there is little difference between herself
    and the nonprobationary officers.
    8
    when citizen complaints were lodged against the troopers or when disciplinary issues
    arose. The same probationary officers were also identified in Bogren's response to the
    state's memorandum in support of summary judgment.5 The state argues, and we agree,
    however, that the probationary-trooper evidence offered by Bogren is insufficient to
    establish pretext. "To be probative evidence of pretext, the misconduct of more
    leniently disciplined employees must be of 'comparable seriousness.'" Harvey v.
    Anheuser-Busch, Inc., 
    38 F.3d 968
    , 972 (8th Cir. 1994) (quoting Lanear v. Safeway
    Grocery, 
    843 F.2d 298
    , 301 (8th Cir. 1988)). Bogren presents no evidence that any
    of the probationary officers ever received a comparable criminal citation nor that
    concerns over their accountability, driving performance or tendency to prevaricate were
    raised during their probationary period. Nor does she show that they were involved in
    motor vehicle accidents while on patrol. Rather, the record reflects only that two
    probationary troopers received a single citizen complaint, both of which were
    investigated and found to be unsustained, and a third received two citizen complaints.
    Moreover, Bogren has not shown that the supervisor or supervisors responsible for her
    termination were also involved in the disciplinary action, or lack thereof, of the white
    male probationary officers. See 
    id.
     (recognizing that individuals are generally not
    similarly situated when different decision makers are involved in the respective
    disciplinary action).
    5
    Bogren identifies five alleged probationary troopers in her brief to whom she
    seeks to compare herself. The record evidence upon which Bogren relies does not
    establish that the five officers were probationary troopers. "[A] party opposing a
    motion for summary judgment may not rest upon the mere allegations or denials of the
    pleadings, but by affidavits or as otherwise provided in Rule 56 must set forth specific
    facts showing that there is a genuine issue for trial." Jaurequi v. Carter Mfg. Co., 
    173 F.3d 1076
    , 1085 (8th Cir. 1999) (quotation omitted). The state concedes, however,
    that three of the troopers were probationary. (See State's Br. at 19.) For that reason,
    we consider the state's treatment of those individuals in determining whether summary
    judgment is appropriate.
    9
    Bogren advances other arguments in support of her burden. She argues there is
    evidence of "blatant lies and inaccuracies" in the supervisors' report recommending her
    termination. For the most part, the supervisors' report merely presents issues and
    concerns raised by other troopers during Bogren's probationary period, which are
    supported by the record, and summarizes the tea-cup incident at Johnson's home. We
    find no evidence supporting Bogren's assertion that the report contains blatant lies,
    included by her supervisors to justify her termination, nor any evidence related to the
    report's preparation which would cause a fact finder to question the explanation offered
    by the state.
    Bogren also contends the fact that she is the only black female trooper (and one
    of few black troopers) ever employed by the patrol is circumstantial proof of pretext.
    In essence, she advances simplistic demographic evidence of the patrol's workforce to
    meet her pretext burden. In Hutson v. McDonnell Douglas Corp., we recognized that
    statistical evidence "may support a finding of pretext, particularly where there are
    independent, direct grounds for disbelieving the employer's explanation for discharge."
    
    63 F.3d 771
    , 778 (8th Cir. 1995) (internal quotations omitted); see also Kim v. Nash
    Finch Co., 
    123 F.3d 1046
    , 1059 (8th Cir. 1997) (in addition to other evidence that the
    proffered reason was false, pretext was established by evidence that out of 3,500
    employees, only 2 management employees in 25 years were nonwhite). The evidence
    Bogren presents, however, is insufficient to establish a genuine issue of pretext for two
    reasons. First, there is no independent evidence to support a finding of pretext.
    Second, we conclude the generic type of employment statistics presented by Bogren
    are not probative of the reason for her termination. See Bullington v. United Air Lines,
    Inc., 
    186 F.3d 1301
    , 1319 (10th Cir. 1999) ("[B]ecause overall employment statistics
    have little bearing on the specific intentions of the employer in making particular hiring
    decisions, such statistical evidence will rarely suffice to rebut an employer's legitimate,
    nondiscriminatory reasons for a particular adverse employment action."); LeBlanc v.
    Great Am. Ins. Co., 
    6 F.3d 836
    , 848 (1st Cir. 1993) ("[S]tatistical evidence in a
    disparate treatment case, in and of itself, rarely suffices to rebut an employer's
    10
    legitimate, nondiscriminatory rationale for its decision to dismiss an individual
    employee."); cf. Hutson, 
    63 F.3d at 777
     (statistical evidence is probative of pretext
    when it analyzes the treatment of comparable employees).
    In sum, we conclude Bogren has not presented sufficient evidence from which
    a reasonable fact finder could disbelieve the state's nondiscriminatory explanation for
    her termination. Her evidence of pretext is wholly insufficient to create a genuine issue
    of material fact under Rule 56.
    B. Hostile Work Environment
    Bogren's Title VII hostile work environment theory is based primarily on alleged
    harassing comments made and conduct engaged in by academy instructors during
    Bogren's academy training. She also advances that she was subjected to a hostile work
    environment when her supervisors presumed she lied or was evasive during the
    investigation of the tea-cup incident and when they determined she was not accountable
    for her actions as a trooper. To establish a Title VII hostile work environment claim,
    Bogren must establish the following: "(1) she is a member of a protected group; (2)
    unwelcome harassment occurred; (3) a causal nexus existed between the harassment
    and her protected-group status; (4) the harassment affected a term, condition, or
    privilege of employment; and (5) her employer knew or should have known of the
    harassment and failed to take prompt and effective remedial action."6 Austin v.
    Minnesota Mining & Mfg. Co., 
    193 F.3d 992
    , 994 (8th Cir. 1999). The district court
    6
    A plaintiff need not show that her employer failed to take remedial action with
    knowledge of the harassing conduct if the alleged harassers are supervisory employees.
    See Bradley v. Widnall, No. 00-1046, 
    2000 WL 1689711
    , at *3 & n.5 (8th Cir. Nov.
    13, 2000). The element requires no further discussion in this case because Bogren
    failed to present evidence supporting the second element of her hostile work
    environment claim--that she was subjected to unlawful harassment.
    11
    determined that Bogren had not shown any evidence of conduct creating a hostile work
    environment. We agree.
    Bogren's supervisors' conclusions that she was evasive and unaccountable do
    not, as a matter of law, rise to the level of a hostile work environment. See Oncale v.
    Sundowner Offshore Servs., Inc., 
    523 U.S. 75
    , 81 (1998) ("Conduct that is not severe
    or pervasive enough to create an objectively hostile or abusive work environment--an
    environment that a reasonable person would find hostile or abusive--is beyond Title
    VII's purview." (quotation omitted)). As for the environment at the academy, Bogren
    identifies no instances in which she was subjected to racially or sexually harassing
    conduct or language, nor does she demonstrate that race or gender played any part in
    how she was treated by the instructors. When interviewed about the former cadets'
    complaints, Bogren made a general complaint about cadets being treated
    inappropriately but stated there were incidents involving both males and females. See
    Kopp v. Samaritan Health Sys., Inc., 
    13 F.3d 264
    , 269 (8th Cir. 1993) (stating the key
    issue in a hostile work environment claim "is whether members of one sex are exposed
    to disadvantageous terms or conditions of employment to which members of the other
    sex are not exposed." (quotation omitted)).
    C. Retaliation
    Bogren next claims she was unlawfully terminated from the patrol for
    complaining to the investigator about harassing and discriminatory conduct at the
    academy. To establish a prima facie case of Title VII retaliation, Bogren must show:
    (1) she engaged in activity protected by Title VII; (2) she suffered an adverse
    employment action; and (3) a causal connection between her protected activity and the
    adverse employment action. See Kiel v. Select Artificials, Inc., 
    169 F.3d 1131
    , 1136
    (8th Cir.) (en banc), cert. denied, 
    120 S. Ct. 59
     (1999). The district court concluded
    Bogren's claim fails because she presents no evidence of the first element--that she
    engaged in activity protected by Title VII.
    12
    Title VII prohibits employers from retaliating against employees for engaging in
    two broad categories of protected activity: 1) opposing any discrimination made
    unlawful by Title VII or 2) making a charge or participating in any manner in an
    investigation or proceeding under Title VII. See 42 U.S.C. § 2000e-3(a) (1994).
    Bogren alleges in her complaint that she opposed activity made unlawful by Title VII,
    but upon review of the record we find no evidence to support her claim. During the
    interview, as we previously noted, Bogren identified a limited number of instances in
    which instructors intimidated cadets, but she explained that the intimidation was
    directed at both male and female cadets--a complaint unprotected by Title VII.
    Moreover, as the district court noted, Bogren's answers to the interviewer's questions
    did not support the claims of harassment made by her fellow cadets. Because Bogren
    presents no evidence that she opposed discrimination made unlawful by Title VII, we
    conclude the court properly granted summary judgment on her retaliation claim.
    III.
    A. Equal Protection
    We turn next to Bogren's claims against Lieutenants Fraser and Hodapp, and
    Captain Mengelkoch in their individual capacities. To begin, she brings a § 1983 claim
    against the three, asserting they violated her right to equal protection. In general, the
    Equal Protection Clause requires that state actors treat similarly situated people alike.
    See Klinger v. Department of Corrections, 
    31 F.3d 727
    , 731 (8th Cir. 1994), cert.
    denied, 
    513 U.S. 1185
     (1995). State actors may, however, treat dissimilarly situated
    people dissimilarly without running afoul of the protections afforded by the clause. See
    
    id.
     Consequently, Bogren must as a threshold matter demonstrate that Fraser, Hodapp
    and Mengelkoch treated her less favorably than similarly-situated troopers on account
    of her membership in a protected class. See Keevan v. Smith, 
    100 F.3d 644
    , 647-48
    (8th Cir. 1996). The district court concluded that Bogren failed to show that similarly
    situated white and male probationary troopers were treated more favorably, and her
    equal protection claim fails for that reason. For the same reasons discussed in relation
    13
    to Bogren's Title VII discriminatory discharge claim, see supra § II.A., we too agree
    that Bogren fails to present sufficient evidence that she was treated less favorably than
    other similarly situated troopers.
    B. § 1981
    Bogren also seeks to recover against the individual defendants pursuant to 
    42 U.S.C. § 1981
     (1994). Section 1981, as amended by the Civil Rights Act of 1991,
    provides a cause of action for discrimination in the employment relationship. See 42
    U.S.C. 1981(a), (b); see also Richmond v. Board of Regents of the Univ. of Minn.,
    
    957 F.2d 595
    , 597 (8th Cir. 1992) (recognizing that prior Supreme Court precedent to
    the contrary, see Patterson v. McLean Credit Union, 
    491 U.S. 164
     (1989), was
    superceded by the 1991 amendments). As an initial matter, Fraser and Hodapp argue
    Bogren's § 1981 claim fails as a matter of law because she was an at-will employee.
    Whether an at-will employee may maintain a § 1981 claim is a matter of first
    impression in this circuit. For those circuits which have addressed the issue, the
    resounding view is that an at-will employee has a cause of action under § 1981 for
    discrimination occurring in the employment relationship. See, e.g., Lauture v.
    International Bus. Machs. Corp., 
    216 F.3d 258
    , 260 (2d Cir. 2000) ("We join the
    emerging consensus of the district courts in this circuit, and the other circuit courts of
    appeal that have squarely decided this issue, to hold that an at-will employee may sue
    under § 1981 for racially discriminatory termination."). But see Gonzalez v. Ingersol
    Milling Mach. Co., 
    133 F.3d 1025
    , 1035 (7th Cir. 1998) (questioning, in dictum,
    whether an at-will employee has sufficient contractual rights to support a § 1981 claim).
    We need not weigh in on the question, however, because even assuming Bogren
    may maintain a § 1981 claim despite her at-will status, her claim fails on other grounds.
    As the district court recognized, a plaintiff must demonstrate purposeful discrimination
    to support a § 1981 claim, see General Bldg. Contractors Ass'n v. Pennsylvania, 458
    
    14 U.S. 375
    , 391 (1982), and thus, the McDonnell-Douglas burden-shifting framework is
    equally applicable on summary judgment to a § 1981 claim, see Roark, 
    189 F.3d at 761
    . Because Bogren cannot meet her burden of demonstrating a genuine issue of
    pretext, which would give rise first to an inference of, and then be of sufficient strength
    to support an actual finding of, purposeful discrimination, her § 1981 claim fails.
    C. § 1985
    Lastly, Bogren claims the individual defendants conspired in violation of 
    42 U.S.C. § 1985
    (3) (1994) to deprive her of her right to equal protection. To prove a
    constitutional conspiracy, a plaintiff must show that the defendants:
    (1) "conspir[ed] ..." (2) "for the purpose of depriving, either directly or
    indirectly, any person or class of persons of the equal protection of the
    laws, or of equal privileges and immunities under the laws." [She] must
    then assert that one or more of the conspirators (3) did, or caused to be
    done, "any act in furtherance of the object of [the] conspiracy," whereby
    another was (4a) "injured in his person or property" or (4b) "deprived of
    having and exercising any right or privilege of a citizen of the United
    States."
    Andrews v. Fowler, 
    98 F.3d 1069
    , 1079 (8th Cir. 1996) (quoting Griffin v.
    Breckenridge, 
    403 U.S. 88
    , 102-03 (1971)). The showing requires a plaintiff to prove
    an agreement between the conspirators, which can be satisfied by "pointing to at least
    some facts which would suggest that appellees reached an understanding to violate her
    rights." Larson by Larson v. Miller, 
    76 F.3d 1446
    , 1454 (8th Cir. 1996) (brackets and
    quotation omitted). As the district court concluded, Bogren's claim fails because she
    has not shown sufficient facts to support a finding that Hodapp, Fraser or Mengelkoch
    agreed to violate her right to equal protection.
    15
    Bogren suggests a fact finder could infer an agreement between the individual
    defendants to violate her rights based on their hand in preparing the supervisors' report.
    She claims all three participated in its preparation and that the three included lies and
    inaccuracies in the report, or adopted the others' lies, to justify her release from the
    patrol. As we have already said, we do not believe the record supports the allegedly
    insidious nature of the supervisors' report that Bogren advances nor do we agree that
    a jury could infer an unlawful agreement merely because the three may have assisted
    in the report's preparation. Although the point of the report was to justify Bogren's
    termination, there is no evidence that the three superiors were motivated by Bogren's
    race or her gender in documenting the events included in the report or in recommending
    her termination. The record simply does not justify any inference that an agreement
    was made between the three to deprive Bogren of her right to equal protection.
    IV.
    For the foregoing reasons, we affirm the judgment of the district court.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    16
    

Document Info

Docket Number: 99-3516

Citation Numbers: 236 F.3d 399, 2000 U.S. App. LEXIS 33574, 85 Fair Empl. Prac. Cas. (BNA) 67

Judges: Loken, Ross, Hansen

Filed Date: 12/22/2000

Precedential Status: Precedential

Modified Date: 11/4/2024

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