Thomas Denn v. CSL Plasma , 816 F.3d 1027 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-1494
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Thomas Denn
lllllllllllllllllllll Plaintiff - Appellant
v.
CSL Plasma, Inc.
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: November 18, 2015
Filed: March 16, 2016
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Before COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges.
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GRUENDER, Circuit Judge.
Thomas Denn sued his former employer, CSL Plasma, Inc. (“CSL”), claiming
that CSL had violated the anti-discrimination and anti-retaliation provisions of the
Missouri Human Rights Act (“MHRA”). Both Denn and CSL filed motions for
summary judgment, and the district court1granted CSL’s motion. We affirm.
I.
CSL operates a number of blood plasma collection facilities around the
country, including in Kansas City, Missouri. Denn worked at the Kansas City facility
as an assistant center manager until November 8, 2012, when CSL terminated his
employment. According to CSL’s records, Denn received positive reviews during his
first few years, including a “strong” rating in or around September 2011 from his
then-supervisor Shane Kennedy, a male CSL employee who worked as the center
manager. Later in 2011, however, Kennedy issued Denn two separate verbal
warnings for revealing confidential information.
In January 2012, Rebecca Heatherman replaced Kennedy as manager of the
Kansas City facility. In this capacity, Heatherman supervised both Denn and another
assistant center manager, Cristina Ceniceros. Denn and Ceniceros shared many of the
same duties and divided the workload evenly. During the time that Heatherman
supervised Denn and Ceniceros, Heatherman provided Denn with numerous verbal
and written warnings for deficiencies in performing these duties. Ceniceros received
no such discipline. In February 2012, for example, Heatherman provided Denn with
a written warning noting that Denn was not meeting his responsibility to spend at
least half of his time building relationships, interacting with staff, and managing
workflow in the center’s production areas. The warning also cited several instances
when Denn had failed to deliver timely corrective actions to employees that he
oversaw. The warning required Denn to create a development plan to correct these
performance deficiencies, and it also stated that failure to improve his performance
1
The Honorable Greg Kays, Chief Judge, United States District Court for the
Western District of Missouri.
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could result in additional corrective action. Denn submitted the required
development plan on March 5, 2012.
From that date through August 2012, Heatherman had numerous conversations
with Denn about his performance. These conversations related to Denn missing
deadlines, interacting poorly with others, failing to communicate with his peers and
supervisor, and failing to administer corrective actions to the employees he
supervised. During one of these discussions, Denn explained that he was having
difficulties managing his time and delegating tasks.
Several months after Denn’s initial written warning, Heatherman and Denn
reviewed his progress relative to his development plan goals. During this meeting,
Heatherman noted several assigned tasks that Denn had failed to complete, but the
two agreed that Denn had demonstrated significant improvement since submitting his
development plan. Heatherman and Denn included a statement recognizing this
progress in a second development plan, which also highlighted several areas in which
Denn needed to demonstrate further improvement.
Despite Denn’s initial progress toward his development goals, his subsequent
performance led to additional discipline. On July 19, 2012, Heatherman sent an email
to CSL’s human resources department (“human resources”) requesting permission to
proceed with a final written warning against Denn based on issues she had observed
during the preceding weeks. Heatherman’s request noted various inappropriate
statements Denn had made to other employees and described a three-day period
during which Denn’s failure to effectively manage and support his staff significantly
reduced the center’s productivity. Heatherman received approval to deliver the final
warning at some point between the end of July and the middle of August.
On August 17, 2012, Denn complained to human resources about Heatherman,
explaining that Heatherman was discriminating against him based on his sex. Several
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days later, a member of human resources discussed this complaint with Denn and then
conducted an investigation that involved interviewing several employees and
reviewing various documents. At the conclusion of this investigation, human
resources determined that Denn had not suffered any discrimination.
On August 21, 2012, Heatherman served Denn with his final written warning.
The document noted the various instances in which Denn had performed below
expectations, and it specifically instructed Denn to be more diligent in
communicating important information to peers and supervisors.
Denn took a leave of absence from mid-September to mid-October 2012.
Shortly after his return, Denn received an addendum to his final written warning that
revised his development timeline in light of his absence and reminded him of the need
to provide peers and supervisors with necessary updates according to the
communication channels described in CSL’s employee handbook.
On October 31, 2012, an incident occurred between two of the employees
under Denn’s supervision, Kristina Todd and Christian Desouza. According to Todd,
Desouza aggressively grabbed her. Todd immediately told Denn about the incident,
which the two briefly discussed before Todd left work that day. According to his
deposition, Denn reviewed videotapes of the incident on either the day of the incident
or the following day, and he checked the center’s work schedules in an effort to
ensure that Todd and Desouza did not work together until he could investigate
further. Denn did not inform Heatherman, human resources, or Ceniceros about the
incident until November 7.
At the time of the incident, CSL’s written policy regarding harassment required
all employees “to immediately report (orally and/or in writing) all incidents of
harassment to a manager and Human Resources. Managers who are aware of
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harassment or related inappropriate conduct and who fail to ensure suitable corrective
action is taken are subject to corrective action, or termination.”
CSL terminated Denn’s employment on November 8. The termination
paperwork stated that Denn’s failure to report the Todd-Desouza incident was the
primary basis for his firing. The paperwork also listed several previous corrective
actions that the company had taken against Denn. Heatherman and two members of
human resources, one of whom was a male, participated in the termination decision.
At some point following the termination of Denn’s employment, Todd overheard
Brandi Robinson, a trainee manager at CSL, remark to Ceniceros, “Isn’t it nice that
all of the testosterone is gone so that we don’t have to deal with it anymore[?]” The
employee hired to replace Denn was male.
Denn sued CSL in Missouri state court under two sections of the MHRA. First,
he claimed that CSL had discriminated against him based on his sex. See Mo. Rev.
Stat. § 213.055. Second, Denn claimed that his final warning and eventual firing
constituted unlawful retaliation for his complaint to CSL’s human resources
department regarding Heatherman’s conduct towards him. See Mo. Rev. Stat.
§ 213.070. CSL removed the case to federal district court based on diversity of
citizenship. See 28 U.S.C. § 1332.
In support of his claims, Denn submitted his own deposition as well as the
depositions of two other male CSL employees, Michael Carter and Kenneth Lain.
Denn also submitted an affidavit from Todd, but the district court subsequently
excluded major portions of this document after a second affidavit from Todd
explained that various statements in the first affidavit exceeded her personal
knowledge. Based on the remaining evidence, the district court granted CSL’s
motion for summary judgment on both of Denn’s claims. Denn now appeals.
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II.
Summary judgment is proper if the moving party “shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A court considering a motion for summary
judgment must view the evidence and inferences that reasonably may be drawn from
the evidence in the light most favorable to the nonmoving party. Enter. Bank v.
Magna Bank of Mo., 92 F.3d 743, 747 (8th Cir. 1996). A party opposing a properly
supported motion for summary judgment may not rest on mere allegations or denials,
but must set forth specific facts in the record showing that there is a genuine issue for
trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
A.
The MHRA prohibits an employer from discriminating against an employee on
the basis of that employee’s sex. Mo. Rev. Stat. § 213.055.1(1)(a). In order to
prevail in a suit under this provision, a plaintiff must demonstrate that (1) he suffered
an adverse employment action; (2) his sex was a contributing factor in that adverse
action; and (3) he incurred damages as a direct result. See Daugherty v. City of
Maryland Heights, 231 S.W.3d 814, 820 (Mo. 2007). With respect to the second
element, the Missouri Supreme Court has recognized that the “contributing factor”
standard, which stems from the MHRA’s prohibition of “any unfair treatment,” is less
rigorous than the “motivating factor” standard employed in federal discrimination
cases under Title VII. Id. at 819. This distinction has led Missouri to abandon the
McDonnell Douglas burden-shifting analysis applied in federal cases. Templemire
v. W & M Welding, Inc., 433 S.W.3d 371, 383 (Mo. 2014) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973). Instead, if “consideration of [a] protected
characteristic[] contributed to the unfair treatment, that is sufficient.” Daugherty, 231
S.W.3d at 819. Although Denn points to various items in the record to support his
discrimination claim, none of this evidence demonstrates a genuine issue of material
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fact as to whether Denn’s sex was a contributing factor to CSL’s decision to take
action against him.
Denn acknowledges that CSL provided non-sex-related reasons for his
discipline and the eventual termination of his employment. Nonetheless, Denn argues
that the evidence created a genuine issue of material fact regarding whether these
reasons lack credibility. Although the MHRA does not require an employee to show
that an employer’s stated reasons for taking adverse action were pretextual, evidence
undermining the credibility of those reasons can give rise to a factual issue as to
whether a discriminatory reason was a contributing factor to an employer’s conduct.
Lomax v. DaimlerChrysler Corp., 243 S.W.3d 474, 483 (Mo. Ct. App. 2007).
According to Denn, CSL’s explanation for why he received repeated disciplinary
warnings lacks credibility because Denn completed more procedures, hiring, and
facility work than his female counterparts. None of the warnings Denn received,
however, stated that Denn was performing deficiently in any of these areas. Instead,
Denn’s verbal and written warnings cited various other shortcomings, including
(1) his inappropriate disclosure of confidential information; (2) his failure to manage
workflow, administer corrective actions, and build relationships among the employees
he managed; (3) his inability to effectively delegate, prioritize, and complete assigned
tasks; and (4) his failure to report promptly relevant information to his peers and
superiors. Denn protests that these warnings resulted from Heatherman’s animosity
towards him, but he does not deny that he also received discipline from Shane
Kennedy, a male supervisor. Denn also offers no evidence to rebut CSL’s
documentation of specific occasions in which he performed deficiently. To the
contrary, the record includes instances in which Denn acknowledged the need to
improve his performance. Based on this evidence, we conclude that Denn has failed
to show a genuine issue of material fact regarding the credibility of his written
warnings.
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Similarly, Denn’s version of the events immediately preceding his firing fails
to create a genuine issue of material fact regarding the credibility of CSL’s stated
basis for terminating his employment. Denn does not dispute that he did not report
the Todd-Desouza incident until eight days after it occurred. Nor does he dispute that
this delay contravened both CSL’s written policy requiring immediate reporting of
such incidents and a written warning he had received just days before the incident
regarding the timely elevation of such issues. Instead, Denn argues that his failure
to report this incident could not have been the basis for CSL’s decision to fire him
because Denn was following a verbal instruction from human resources to investigate
these types of occurrences prior to reporting them. The record, however, does not
support Denn’s version of the facts. Denn’s deposition testimony states only that, on
prior occasions when he had reported such issues, human resources had instructed
him to investigate the incident further. At no point does he state that human resources
told him to conduct this investigation prior to reporting the incident. To the contrary,
Denn admitted in his deposition that by failing to report the incident, he was
“skipping [a] step” in CSL’s policies based on his determination that conducting his
own investigation would expedite the process.2 These statements support, rather than
undermine, CSL’s contention that it lawfully fired Denn for violating company policy
after he had received a final written warning. Because Denn admitted that he failed
to comply with CSL’s policies, no genuine issue of material fact remained with
respect to the credibility of CSL’s assertion that Denn’s failure was the basis for the
termination of his employment.
In addition, Denn argues that summary judgment was inappropriate because the
evidence showed that CSL treated him unfavorably relative to similarly situated
female employees. Missouri courts do not require a plaintiff to present evidence of
2
In any event, the record undermines Denn’s assertion that his investigation
caused his eight-day reporting delay. The only investigatory effort that Denn
described in his deposition was his review of videotapes on either the day of the
incident or the following day.
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similarly situated employees in order to overcome summary judgment, but this type
of evidence can give rise to a factual issue regarding whether a discriminatory reason
was a contributing factor to an employer’s conduct. Holmes v. Kansas City Mo. Bd.
of Police Comm’rs ex rel. Its Members, 364 S.W.3d 615, 627 (Mo. Ct. App. 2012).
“Employees are similarly situated if they are accused of ‘similar conduct and are
disciplined in different ways.’” Jain v. CVS Pharmacy, Inc., 779 F.3d 753, 759 (8th
Cir. 2015) (quoting Williams v. Trans States Airlines, Inc., 281 S.W.3d 854, 873 (Mo.
Ct. App. 2009)). Denn argues that Ceniceros, who also worked as an assistant center
manager, was a similarly situated female employee. The fact that Heatherman never
disciplined Ceniceros, Denn contends, requires an inference of sex discrimination.
Denn provides no evidence, however, that Ceniceros’s performance as an assistant
center manager suffered from the same deficiencies as Denn’s performance. Nothing
in the record suggests that Ceniceros consistently failed to complete assigned tasks,
report issues to supervisors, or promptly administer corrective actions to
subordinates. Denn argues that Ceniceros performed fewer procedures and
contributed less to hiring and facility maintenance, but, as explained above, these
tasks were not areas in which Denn received negative feedback. Because the record
does not show that Denn and Ceniceros engaged in “similar conduct,” Denn’s
argument that Heatherman did not discipline Ceniceros cannot give rise to a genuine
issue of material fact as to whether CSL treated Denn less favorably than similarly
situated female employees. See Jain, 779 F.3d at 759.
Similarly, Denn’s attempt to compare himself to Heatherman fails to create a
factual issue sufficient to overcome summary judgment. Denn alludes to a prior
harassment complaint that Heatherman failed to report, but no admissible evidence
indicates that Heatherman did not report this incident to human resources.3
3
Denn presents two potential pieces of evidence supporting this assertion, but
neither is admissible. First, in her first affidavit, Kristina Todd stated that in
September 2012 she made a harassment complaint to Heatherman and that
Heatherman took no action to correct the behavior underlying this complaint.
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Moreover, even if Heatherman did fail to report a similar incident, no evidence shows
that Heatherman’s superiors were aware of this failure but declined to punish her.
Finally, Heatherman would not necessarily have deserved the same punishment as
Denn for any such failure because no evidence suggests that Heatherman was on
“final warning” when this previous instance of harassment occurred. As with
Ceniceros, because Heatherman was not disciplined less severely than Denn for
engaging in similar conduct, the district court correctly determined that no genuine
issue of material fact remained as to whether CSL treated Denn unfavorably relative
to similarly situated employees.
Denn also argues that Brandi Robinson’s statement to Ceniceros following
Denn’s firing represents evidence of sex discrimination. Admittedly, this statement
demonstrates that one or more of Denn’s peers may have harbored a bias against him
based on his sex. However, the statement is not direct evidence of discrimination
because neither Robinson nor Ceniceros was involved in the decision to fire Denn.
See Daugherty, 231 S.W.3d at 818 n.4 (“Statements . . . are not considered direct
evidence if they are unrelated to the decisional process.”). Robinson’s comment also
However, the district court subsequently excluded much of this first affidavit due to
Todd’s admission in a second affidavit that the affidavit’s averments exceeded her
personal knowledge. See Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration used
to support or oppose a motion must be made on personal knowledge . . . .”).
Although Denn argues that this exclusion was improper, we disagree. See Ward v.
Int’l Paper Co., 509 F.3d 457, 462 (8th Cir. 2007) (holding that district court properly
excluded statements in affidavits for which affiants lacked personal knowledge). In
her second affidavit, Todd stated only that she was not aware of any action that
Heatherman took following this first complaint. Second, Denn stated in his
deposition that Heatherman “failed to do anything” when this prior incident was
brought to her attention. Elsewhere in his deposition and in his brief, however, Denn
makes clear that he learned of Heatherman’s alleged inaction through his
conversation with Todd. Like Todd’s statement in her first affidavit, therefore,
Denn’s statement is inadmissible because it is not based on either Todd’s or Denn’s
personal knowledge. See id.-10-
does not represent indirect evidence of discrimination because no reasonable
inference links this statement to Denn’s discipline or firing. See id. at 818. Neither
Heatherman nor anyone in human resources could have considered Robinson’s
statement when deciding to take action against Denn, and no evidence indicates that
the comment was emblematic of similar sentiments shared by those decision makers.
Without facts connecting this comment, made by one of Denn’s peers, to CSL’s
decision to fire Denn, the statement does not give rise to a genuine issue of material
fact regarding Denn’s discrimination claim. Cf. Fast v. Southern Union Co., Inc., 149
F.3d 885 (8th Cir. 1998) (finding that comments by non-decision maker provided
circumstantial evidence of discrimination where other evidence indicated that the
comments influenced the decision to fire the plaintiff); Cox v. Kansas City Chiefs
Football Club, Inc., 473 S.W.3d 107, 126 (Mo. 2015) (finding that comments by
other high-level executives provided indirect evidence that employee’s firing was part
of a company-wide policy of age discrimination).
Finally, Denn argues that evidence of other instances of discrimination against
CSL’s male employees rendered summary judgment improper. Missouri courts have
recognized that so-called “me too” evidence of other discrimination victims is
relevant where the plaintiff shows “that he and others were treated similarly by being
disciplined or fired and that the dominant common factor between himself and the
others who were disciplined or fired is their membership in the protected group.”
Cox, 473 S.W.3d at 120. The “me too” evidence Denn presents, however, fails to
give rise to a genuine issue of material fact. Although former CSL employee Michael
Carter stated that he felt that he was targeted by female superiors, this testimony did
not demonstrate that Carter was “treated similarly” to Denn because Carter did not
specify the nature of this treatment or whether it involved the type of discipline Denn
received. See id. at 118. Furthermore, neither Carter nor Denn’s other witness,
Kenneth Lain, was fired by CSL. Therefore, the only evidence that other males were
“treated similarly” to Denn was Lain’s statement that he, like Denn, received multiple
written warnings from Rebecca Heatherman. The fact that Heatherman disciplined
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both men may be relevant under Missouri law, but standing alone this “mere ‘scintilla
of evidence’ is insufficient to defeat summary judgment” on Denn’s discrimination
claim. See Brunsting v. Lutsen Mountains Corp., 601 F.3d 813, 820 (8th Cir. 2010)
(quoting Anderson, 477 U.S. at 256)).
Because Denn supplied no evidence giving rise to a genuine issue of material
fact as to whether CSL considered his sex when disciplining and ultimately firing
him, the district court properly granted CSL summary judgment on Denn’s
discrimination claim.
B.
Denn also argues on appeal that the district court erred by granting CSL
summary judgment on his retaliation claim. See Mo. Rev. Stat § 213.070. To
establish a prima facie case of retaliation under the MHRA, a plaintiff must prove
(1) he complained of discrimination; (2) the employer took adverse action against
him; and (3) a causal relationship existed between the complaint and the adverse
action. McCrainey v. Kansas City Mo. Sch. Dist., 337 S.W.3d 746, 753 (Mo. Ct.
App. 2011). With respect to the third element, Missouri courts have recognized that
a “causal relationship” exists when retaliation was a “contributing factor” to the
adverse action. Wallace v. DTG Operations, Inc., 563 F.3d 357, 360 (8th Cir. 2009)
(citing Hill v. Ford Motor Co., 277 S.W.3d 659 (Mo. 2009)).
The parties do not dispute that the evidence is sufficient to establish the first
two elements of retaliation. Denn complained to human resources about sex
discrimination on August 17, 2012, and CSL took adverse actions against Denn when
it provided him with a final written warning on August 22, 2012 and when it
terminated his employment on November 8, 2012. With respect to the third element,
Denn claims that the temporal proximity between his complaint and CSL’s adverse
actions creates a genuine issue of material fact regarding whether his complaint
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contributed to CSL’s decision to take those actions. In order to survive summary
judgment on a retaliation claim, however, a plaintiff generally must present “more
than a temporal connection between protected activity and an adverse employment
action.” Williams, 281 S.W.3d at 869 (emphasis added) (quoting Buettner v. Arch
Coal Sales Co., Inc., 216 F.3d 707, 715-16 (8th Cir.2000)). Denn’s retaliation claim
cannot overcome summary judgment because he has failed to provide any evidence
that his discrimination complaint was a contributing factor to either his final warning
or the eventual termination of his employment.
First, although Denn received his final written warning shortly after he
complained to human resources, Heatherman had sought approval to deliver this
warning nearly a month before Denn’s complaint, and her request cited performance
issues dating back to February 2012. Furthermore, human resources already had
reviewed the warning and suggested revisions by the time Denn complained of
discrimination. In light of these facts, we agree with the district court that Denn’s
receipt of a final warning days after his complaint was a “mere coincidence of timing”
that fails to give rise to a factual issue regarding whether the complaint was a factor
contributing to the delivery of this warning. See Kipp v. Mo. Highway & Transp.
Comm’n, 280 F.3d 893, 897 (8th Cir. 2002) (quoting Nelson v. J.C. Penney Co., 75
F.3d 343, 346-47 (8th Cir. 1996)).
Denn also failed to show that his discrimination complaint contributed to
CSL’s decision to terminate his employment. Even if we accept Denn’s argument
that we should discount the leave of absence he took from September 15, 2012 until
October 14, 2012, more than seven weeks of work separated Denn’s complaint and
his eventual firing. This gap in time “weakens the inference of retaliation that arises
when a retaliatory act occurs shortly after a complaint.” See Shanklin v. Fitzgerald,
397 F.3d 596, 604 (8th Cir. 2005) (quoting Dhyne v. Meiners Thriftway, Inc., 184
F.3d 983, 989 (8th Cir. 1999)). Furthermore, without additional evidence linking
Denn’s complaint to CSL’s decision to fire him, any temporal connection between
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these events is insufficient to raise a genuine issue of material fact. See Williams, 281
S.W.3d at 869. As explained above, Denn has failed to undermine CSL’s lawful
explanation for why the company terminated his employment. Because “filing a
complaint does not clothe [a plaintiff] with immunity for past and present
inadequacies,” Denn’s poor performance overwhelms any temporal relationship
between his discrimination complaint and subsequent firing. See Shanklin, 397 F.3d
at 604 (quoting Kneibert v. Thomson Newspapers, Mich., Inc., 129 F.3d 444, 455 (8th
Cir. 1997)).
Denn has failed to point to any evidence showing that his discrimination
complaint was a “contributing factor” to any adverse action taken by CSL. See
Wallace, 563 F.3d at 360. Accordingly, no genuine issue of material fact remained
as to whether any “causal relationship” exists between these two events. See id.III.
For the foregoing reasons, we affirm the district court’s grant of summary
judgment to CSL on both of Denn’s claims under the MHRA.
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