Eric T. Tolen v. John Ashcroft

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2927
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Eric T. Tolen, *
*
Plaintiff - Appellant, *
*
v. * Appeal from the United States
* District Court for the
John Ashcroft, Attorney General for * Eastern District of Missouri.
the Department of Justice, *
*
Defendant - Appellee. *
*
*
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Submitted: May 10, 2004
Filed: July 28, 2004
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Before MORRIS SHEPPARD ARNOLD, MCMILLIAN, and MELLOY, Circuit
Judges.
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MELLOY, Circuit Judge.
Eric Tolen (“Tolen”) was employed by the Department of Justice as an
Assistant United States Attorney from 1987 until his termination in 1999. His
termination followed allegations of, inter alia: perjury in connection with his
brother’s bank robbery trial, the unauthorized outside practice of law, making false
statements to investigating officers, using government time, clerical assistance, and
space for personal reasons, and misusing his position as an Assistant United States
Attorney for personal gain. Pursuant to Department of Justice policy, Tolen was
placed on administrative leave while the Executive Office for United States Attorneys
(“EOUSA”) completed an investigation into the allegations and ultimately
recommended Tolen’s dismissal.
After being terminated, Tolen brought numerous claims of racial discrimination
and retaliation against various defendants, including Attorney General Ashcroft, FBI
Special Agent Gary Fuhr, and former Department of Justice attorney Joseph Gontram,
under Title VII and Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). The defendants moved to dismiss Counts IV through
IX of Tolen’s First Amended Complaint, and Tolen conceded that some of the counts
were precluded by remedies under the Civil Service Reform Act. The district court1
granted the Motion to Dismiss. Consequently, Counts I, II, and III, which alleged
race discrimination and retaliation against Attorney General Ashcroft (Counts I and
II) and Special Agent Fuhr (Count III), remained. The district court then granted
Tolen leave to amend his complaint. In a four-count Second Amended Complaint,
Tolen solely named Attorney General Ashcroft as a defendant and sought to hold him
liable for race discrimination and retaliation under Title VII.
Attorney General Ashcroft subsequently moved for summary judgment,
arguing that Tolen failed to present a prima facie case of discrimination or retaliation.
The district court agreed and entered summary judgment in Ashcroft’s favor. Tolen
appeals.2 Having reviewed de novo the record and carefully considered the parties’
1
The Honorable Warren K. Urbom, United States District Judge for the Eastern
District of Missouri.
2
Tolen also appeals the dismissal of the constitutional claims alleged against
Special Agent Fuhr and attorney Gontram in Tolen’s First Amended Complaint.
However, Tolen voluntarily dismissed his Bivens claim against Gontram and did not
include either of these claims in his Second Amended Complaint. “It is
well-established that an amended complaint supercedes an original complaint and
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briefs, see Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir. 2002) (standard
of review), we agree with the district court’s bases for granting summary judgment
and affirm.
Count I of Tolen’s Second Amended Complaint alleges race discrimination.
To establish a prima facie case on this claim, a Title VII plaintiff must show: (1) that
he is a member of a protected class, (2) that he was meeting the employer’s legitimate
job expectations, (3) that he suffered an adverse employment action, and (4) that
similarly situated employees outside the protected class were treated differently. E.g.,
Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000). If the plaintiff can make out a
prima facie case, the employer must come forward and identify a legitimate, non-
discriminatory reason for the adverse employment action. See Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). If the employer meets this burden
of production, the presumption raised by the prima facie case disappears, and the
burden shifts back to the plaintiff to show that the articulated reason was a pretext for
discrimination. See Mayer v. Nextel West Corp., 318 F.3d 803, 807 (8th Cir. 2003)
(explaining McDonnell Douglas burden-shifting paradigm in context of ADEA).
The district court found that Tolen failed to generate a jury question as to the
fourth element of the prima facie case. We agree. Tolen argues that he is the only
employee who former United States Attorney Dowd caused to be investigated, while
he (Dowd) did not report other employees’ misconduct, in violation of Department
renders the original complaint without legal effect.” Karnes v. Poplar Bluff Transfer
Co. (In re Atlas Van Lines, Inc.), 209 F.3d 1064, 1067 (8th Cir. 2000); accord Forsyth
v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997) (“If a plaintiff fails to include
dismissed claims in an amended complaint, the plaintiff is deemed to have waived
any error in the ruling dismissing the prior complaint.”); Fuhrer v. Fuhrer, 292 F.2d
140, 144 (7th Cir. 1961) (“The prior pleading is in effect withdrawn as to all matters
not restated in the amended pleading, and becomes functus officio.”). Accordingly,
Tolen has waived his Bivens claims, precluding our review of the district court’s
dismissal of them.
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of Justice policy. In addition, Tolen contends that he was treated less favorably than
other Assistant United States Attorneys who the director of the EOUSA
recommended be dismissed for misconduct. To be similarly situated, the comparable
employees “‘must have dealt with the same supervisor, have been subject to the same
standards, and engaged in the same conduct without any mitigating or distinguishing
circumstances.’” Gilmore v. AT&T, 319 F.3d 1042, 1046 (8th Cir. 2003) (quoting
Clark, 218 F.3d at 918).
To demonstrate that he was treated more harshly, Tolen asserts that his offered
comparables were accused of committing serious violations while he was accused of
relatively minor infractions. No reasonable fact-finder, however, could conclude that
the unauthorized outside practice of law during Tolen’s regular working hours,
accusations of perjury and misleading federal prosecutors, among other allegations,
were “minor.” Tolen has not designated specific evidence in the record to dispute
that he engaged in much of the misconduct the Department of Justice charged against
him.3 Nor does he contend that the charges were fabricated. Thus, to compare the
severity of Tolen’s conduct to that of employees who were accused of neglecting
work and being confrontational, for example, would be inappropriate for purposes of
the “similarly situated” analysis. Furthermore, as the district court pointed out, the
frequency of Tolen’s misconduct distinguishes him from his offered comparables.
Consequently, upon de novo review, we agree that Tolen failed to establish a prima
facie case of race discrimination.
3
Tolen failed to cite to specific portions of the record to support much of his
arguments resisting the defendant’s motion for summary judgment. The district court
was not required to wade through his voluminous “Exhibit 1” to find the existence
of triable issues, even though the district court expended much effort in doing so.
Tolen’s numerous citations to “Exhibit 1” and to full affidavits did not meet Rule 56's
specificity requirements. See Jaurequi v. Carter Mfg. Co., 173 F.3d 1076, 1085 (8th
Cir. 1999) (“[A] district court is not ‘obligated to wade through and search the entire
record for some specific facts which might support the nonmoving party’s claim[.]’”
(quoting White v. McDonnell Douglas Corp., 904 F.2d 456, 458 (8th Cir. 1990))).
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The district court, moreover, found that even if Tolen were able to establish a
prima facie case, he had failed to rebut Attorney General Ashcroft’s legitimate, non-
discriminatory reasons for his (Tolen’s) dismissal. The charges that the EOUSA
sustained against Tolen constitute legitimate, non-discriminatory reasons for Tolen’s
termination, and Tolen has not presented any evidence that supports an inference that
Attorney General Ashcroft’s articulated reasons for dismissing Tolen were pretextual.
Nor has Tolen presented evidence from which a reasonable jury could find that he
was terminated “under circumstances that would permit the court to infer that
unlawful discrimination had been at work.” Habib v. NationsBank, 279 F.3d 563,
566 (8th Cir. 2001). Summary judgment, therefore, was properly entered against him
on his race discrimination claim.
Counts II , III, and IV of Tolen’s Second Amended Complaint allege retaliatory
conduct for Tolen’s refusal to resign and the ensuing investigation (Count II), for his
refusal to facilitate an inculpatory statement from his brother who stood accused of
bank robbery (Count III), and for filing a discrimination charge with the EEOC
(Count IV). A prima facie case of retaliation requires the plaintiff to establish (1) that
he engaged in conduct protected by Title VII, (2) that the employer took an adverse
employment action against the plaintiff, and (3) that the adverse employment action
was causally related to the plaintiff’s protected activity. See Sowell v. Alumina
Ceramics, Inc., 251 F.3d 678, 684 (8th Cir. 2001) (outlining elements of prima facie
retaliation case under Title VII).
We agree with the district court’s analysis of Tolen’s retaliation claims. The
record before the district court did not show that Tolen generated a triable issue as to
whether he engaged in activity protected by Title VII as alleged in Counts II and III.
On de novo review, we also find lacking a genuine issue for trial regarding causation.
Regarding Count IV, we likewise agree with the district court’s analysis that no
genuine issue of material fact existed as to whether Tolen suffered a post-termination
adverse employment action that was causally linked to his filing of an EEOC charge.
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Accordingly, the district court properly entered summary judgment on each of
Tolen’s retaliation claims.
Therefore, we affirm the judgment of the district court.
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