Ralph Mervine v. Plant Engineering Services

United States Court of Appeals
For the Eighth Circuit
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No. 16-2055
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Ralph Mervine
lllllllllllllllllllll Plaintiff - Appellant
v.
Plant Engineering Services, LLC
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: March 9, 2017
Filed: June 9, 2017
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Before WOLLMAN, COLLOTON, and SHEPHERD, Circuit Judges.
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WOLLMAN, Circuit Judge.
Ralph Mervine appeals from the district court’s1 order granting summary
judgment in favor of his former employer, Plant Engineering Services, LLC (Plant
1
The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
Engineering), on his claim of retaliatory discharge in violation of the Minnesota
Whistleblower Act (MWA). See Minn. Stat. § 181.932. We affirm.
“We review a grant of summary judgment de novo and will affirm when ‘there
is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.’” Grant v. City of Blytheville, 841 F.3d 767, 770 (8th Cir. 2016)
(quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en
banc)). We view the evidence in the light most favorable to the nonmoving party and
draw all reasonable inferences in that party’s favor. Torgerson, 643 F.3d at 1042.
The nonmoving party “may not rely on allegations or denials,” however, but must
substantiate his allegations with “sufficient probative evidence [that] would permit
a finding in [his] favor on more than mere speculation [or] conjecture.” Mann v.
Yarnell, 497 F.3d 822, 825 (8th Cir. 2007) (quoting Gregory v. City of Rogers, 974
F.2d 1006, 1010 (8th Cir. 1992)). There is no genuine issue for trial if “the record
taken as a whole could not lead a rational trier of fact to find for the nonmoving
party.” Torgerson, 643 F.3d at 1042. We relate the facts in light of these standards.
Plant Engineering provides engineering, project-management, and support
services to clients nationwide. It has provided engineering services to Flint Hills
Resources (Flint Hills) at its Pine Bend refinery in Rosemount, Minnesota (Pine
Bend), for several years. Mervine, an experienced professional engineer, began
working for Plant Engineering as a project manager in May 2012. In January 2013,
Plant Engineering interviewed Mervine for the position of Pine Bend site manager.
Mervine was informed during the interview that Pine Bend was a difficult
assignment, that Flint Hills’s increased focus on timely project completion was
affecting Plant Engineering employees’ morale, and that Flint Hills was currently
unhappy with the services Plant Engineering employees were providing at Pine Bend.
In April 2013, Mervine accepted Plant Engineering’s offer. Forty-eight of Pine
Bend’s 225 projects were more than two weeks behind schedule when Mervine began
his employment there.
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Mervine understood that his primary task was to accommodate Flint Hills’s
demands, as well as Bill Hicks’s, Plant Engineering’s manager for the Flint Hills
account. Both Plant Engineering and Flint Hills were initially satisfied with
Mervine’s performance. In late 2013, Mervine began to have problems with Shaina
Botka, a Plant Engineering project manager who reported directly to Mervine and
who Mervine believed had become frustrated with Flint Hills’s repeated changes to
her project schedules. In a December 13 email, Botka claimed that Mervine had told
her in a meeting that he needed to “clean house” and that he could fire her and
another employee. Botka understood Mervine’s comments to be a threat to her
employment and informed Mervine in the email that she intended to report his
conduct to Jason Kreuiter, Plant Engineering’s Pine Bend human resources (HR)
representative. Botka also emailed Kreuiter to ask if she could discuss some concerns
with him. Later the same day, Mervine forwarded to Kreuiter the email Botka had
originally sent to him and asked Kreuiter to call the following week to discuss Botka.
Several follow-up emails were sent to Kreuiter over the next several days by both
Mervine and Botka, each of whom expressed professional and personal concerns
about the other. Kreuiter recognized the strained working relationship between
Mervine and Botka, and he spoke with both parties about their concerns. In the
meantime, Mervine received a positive annual performance review from his
supervisor, Joe Picou, on December 9, 2013, and he received a raise and a promotion
in January 2014. Picou, however, was not aware at that time that Botka or any of
Mervine’s other subordinates had concerns about Mervine.
Also in late December 2013, Plant Engineering began planning for its annual
contract negotiations with Flint Hills. In a conference call on the afternoon of
January 28, 2014, Mervine, Hicks, Picou, and Kreuiter began to finalize plans for
those negotiations. The parties intended to discuss the feasability of seeking an
annual rate increase from Flint Hills to cover the cost of a quarterly bonus that Plant
Engineering had been paying to certain employees in lieu of a discontinued retirement
benefit. During the call, Picou instructed Mervine to request the proposed rate
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increase from Flint Hills. According to Mervine, however, Picou also directed him
to conceal from Flint Hills that the proposed increase would be used to cover the cost
of the quarterly bonuses. Mervine believed that the rate increase was improper
because, as he understood the provisions of Plant Engineering’s contract with Flint
Hills, Plant Engineering was already collecting fees to cover the quarterly bonuses.
Based on this understanding, Mervine stated during the conference call that he
believed Picou’s proposal constituted illegal double billing. Hicks immediately
disagreed with Mervine’s statement that the proposal was illegal, but he suggested
that Flint Hills was unlikely to agree to a rate increase in any event. Picou, however,
responded angrily to Mervine’s remark, stating that he did not appreciate Mervine’s
accusation of illegal behavior, and abruptly ended the conference call after this
exchange.
Hicks later told Mervine that Picou was upset about Mervine’s comments
during the call and that “it w[ould] be a long time before [Picou] [got] over” the
incident. A few days after the conference call, Picou called Mervine to apologize for
his “outburst” during the call. Picou reiterated, however, that he resented having his
ethics questioned. Picou suggested that Mervine had misunderstood what Picou had
asked him to do and that the two should meet so Picou could explain the billing and
financial terms of Plant Engineering’s contract with Flint Hills. Despite Mervine’s
stated misgivings about the legality of the proposed rate increase, he thereafter agreed
to approach Flint Hills to negotiate the increase, writing in a February 3 email to
Picou that he was “working on a plan to recover these . . . payments.” Mervine had
no further discussions with Picou or Flint Hills about the rate increase.
On the morning of January 28, Plant Engineering employee Rick Panzer
emailed Kreuiter, asking to discuss “a situation” at Pine Bend. In a phone call later
that day, Panzer expressed concerns to Kreuiter about employee morale at Pine Bend,
the overall environment at the site, and Mervine’s mistreatment of Botka. Because
Panzer was “having trouble formulating his thoughts on the call,” Kreuiter sent him
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an email the following morning, asking him to “summarize any thoughts, experiences
or situations” he had “observed or been told about regarding [Mervine’s] behavior.”
Kreuiter also received a brief email from Botka on the morning of January 29, which
expressed her continued concern about her job security. As he had done with Panzer,
Kreuiter responded by asking Botka to summarize her concerns in an email.
Panzer’s January 29 follow-up email to Kreuiter stated that although the
situation at Pine Bend had recently improved, Mervine continued to display a lack of
professionalism and a limited knowledge of the engineering process that was
negatively impacting Plant Engineering’s relationship with Flint Hills. The email
stated that Mervine had dozed off, made irrelevant and sarcastic comments, and
undermined Plant Engineering employees during meetings with Flint Hills
representatives. He had abruptly left meetings when his input was needed and had
made statements that caused Plant Engineering employees to question their job
security. Further, the email stated that Mervine had discussed private employee
information in the presence of others and had refused to allow Plant Engineering
employees to request changes to Flint Hills project schedules, which Panzer worried
would result in missed deadlines. Kreuiter forwarded Panzer’s email to Picou and
Hicks on January 30, concealing Panzer’s identity and describing him only as a long-
term employee with no reason to fabricate allegations about Mervine. Hicks
responded by email the same day, suggesting that Kreuiter consider visiting Pine
Bend to interview Plant Engineering employees in person. Kreuiter discussed the
situation with Picou, and the two determined that Kreuiter should travel to Pine Bend
and proceed as Hicks had suggested.
On February 3, Botka sent Kreuiter a follow-up email, documenting in detail
her numerous concerns with Mervine’s performance. Botka wrote that Mervine had
again threatened to fire her and had also threatened the jobs of two other Plant
Engineering employees, Dave Mannello and Jim Carpenter. She acknowledged that
she could not be fired without approval from Plant Engineering and Flint Hills, but
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stated that she had been excluded from new work projects for six months and was
worried about her future with Plant Engineering. Botka complained that Mervine fell
asleep, asked irrelevant questions, and undermined her during meetings with Flint
Hills representatives. She also recounted a conversation with Mervine during her
annual performance review in which Mervine revealed that he had caused a former
employer to be sued for pregnancy discrimination. Botka interpreted Mervine’s
comment as an inappropriate inquiry into her family plans. Botka stated that
Mervine’s conduct had gone “far beyond acceptable professional behavior, and
[would] potentially jeopardize this contract, and many people’s jobs, including my
own.”
The next day, Kreuiter received an email from another Plant Engineering
employee, Charles Sandiford, who described an incident with Mervine that had
occurred when Sandiford was leaving work the preceding day. As Sandiford was
walking to his car after work, Mervine stopped him to ask about an “anti” holiday
party that Sandiford and others in his work group had organized and attended on the
same night of the company’s previous-week holiday party. Mervine pressed
Sandiford for details about the party and the other attendees, which Sandiford felt was
“none of [Mervine’s] business.” Sandiford’s email also stated that Mervine had
“shown a lack of professionalism towards [him] and countless others” and had “made
[Pine Bend] a hostile work environment.” It expressed Sandiford’s concern that Plant
Engineering employees at Pine Bend were “at the end of their rope and [were]
consider[ing] going elsewhere unless something gives.” Later the same day, Kreuiter
received an email from Sandiford’s supervisor, Dave Mannello, who stated that
Sandiford was very upset about the incident with Mervine. The email further stated
that other employees had expressed similar frustrations with Mervine’s conduct and
that morale was “very bad.” Finally, the email stated that never before in his 28 years
of experience had Mannello been “subjected to the nonsense” that was occurring at
Pine Bend “on a daily basis.”
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Kreuiter immediately forwarded the content of Sandiford’s email to Hicks and
Picou, explaining that he had received several similar emails and phone calls
complaining about Mervine’s performance and management style. Picou informed
Hicks that he was concerned about the number and serious nature of the complaints,
that resolution of the issues might require more than “coaching, mentoring, or
disciplin[ing],” and that he and Hicks thus should consider planning for Mervine’s
replacement.
On February 12, Kreuiter received an email from Plant Engineering employee
Robert Dunlop, who complained that he had been required to serve as the “front man”
to resolve “emotional” and “confrontational” issues that Mervine would not address.
The following day, Dunlop blind-copied Kreuiter on an email Dunlop sent to
Mervine, in which Dunlop referred to “yelling and screaming” coming from
Mervine’s office after Dunlop had submitted an apparently unsatisfactory seating-
chart proposal at Mervine’s request. The email explained to Mervine that Mervine’s
later revisions to Dunlop’s original proposal had undermined Dunlop’s authority with
the other Plant Engineering employees whose input Dunlop had sought in preparing
his original proposal.
On February 14, Flint Hills Facilities Manager Don Kern received a telephone
call suggesting that he “Google” Mervine’s name. Kern did so and discovered reports
that described Mervine’s alleged connection to the pornography industry and his
eventual departure from a position he had previously held with the State of Florida.
Kern then called Hicks to ask whether Plant Engineering was aware of these
allegations. Hicks responded that Plant Engineering had already begun an
investigation into Mervine and that Mervine would not be reporting for work at the
Pine Bend facility during the following week’s on-site interviews. Kreuiter then
called Mervine and instructed him not to report to work the following Monday or
Tuesday—instructions that Mervine understood were intended to facilitate Kreuiter’s
on-site interviews with Plant Engineering employees.
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Kreuiter arrived at Pine Bend and began interviewing Plant Engineering
employees on February 17, 2014. He interviewed 22 employees, including managers,
supervisors, employees who had complained about Mervine, and employees who had
not complained. The employees were told that Kreuiter was there to assess “how
things [were] going” in general and were not told that the interviews were part of an
investigation into Mervine. Each interview lasted about 45 minutes, during which
Kreuiter asked no questions intended to elicit negative information about Mervine.
Kreuiter later summarized in a report the notes he had made during the interviews.
Although some employees approved of Mervine’s management style, most reported
concerns. Several employees stated that morale was low and that they had little
confidence in Mervine’s abilities. They reported that Mervine had dozed off and had
otherwise behaved inappropriately during meetings with Flint Hills representatives,
that he had threatened to fire several employees, that he had failed to maintain
employee confidentiality, that he undermined Plant Engineering employees in
meetings with Flint Hills representatives, and that he did not support Plant
Engineering employees during scheduling discussions with Flint Hills. Notably,
Dunlop revealed in his interview with Kreuiter that Mervine had threatened to
retaliate against Botka, stating in Dunlop’s presence, “I’m going to get that b***h for
complaining to HR.”
Kreuiter presented a summary of the employee interviews to Mervine and
offered him an opportunity to respond to some of the negative comments. Mervine
denied most of the allegations, specifically asserting that he had never fallen asleep
during a meeting but had only “drift[ed] off” a “couple of times” and that he had
never expressed a desire to fire Botka for making a report to HR. Mervine admitted
that he had mentioned the pregnancy-discrimination incident during Botka’s
performance review and that he had questioned Sandiford about the “anti” holiday
party, but he denied having asked Sandiford for the names of the other party
attendees. Although Mervine was given an opportunity to provide documents or
statements supporting his assertions, he did not do so.
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After reviewing the employees’ allegations and Mervine’s responses thereto,
Kreuiter determined that it was more likely than not that the allegations were true.
Kreuiter considered that, while multiple employees had reported similar, fairly
detailed instances of Mervine’s misconduct, Mervine had provided only blanket
denials. Because Kreuiter had no reason to believe that any of the employees were
motivated to fabricate allegations against Mervine, he deemed the employees’
allegations more credible than Mervine’s denials. Kreuiter reported his findings to
Picou and recommended that Mervine’s employment be terminated in light of the
severity of the Mervine’s unprofessional conduct and the risk that several Plant
Engineering employees would resign if Mervine continued as the Pine Bend site
manager. Picou accepted Kreuiter’s recommendation and determined that Mervine’s
employment should be terminated based on his unsatisfactory job performance,
specifically, his “retaliatory activities, [creation of a] hostile work environment[,]
degradation of leadership ability, [and lack of] general professional behavior.” Picou
informed Mervine of that determination on February 20, 2014.
Mervine filed a complaint in Minnesota state court in July 2014, alleging that
Plant Engineering had violated the MWA by firing him in retaliation for his statement
during the January 28 conference call that Picou’s proposed rate increase amounted
to illegal double billing. Plant Engineering removed the case to the United States
District Court for the District of Minnesota on the basis of diversity jurisdiction.
Following discovery, briefing, and oral argument, the district court granted Plant
Engineering’s motion for summary judgment, concluding that Mervine had not made
out a prima facie case of retaliation because he had not shown a causal connection
between his alleged protected activity and the termination of his employment. The
court also concluded that Mervine had not shown that Plant Engineering’s stated
reason for terminating his employment was a pretext for retaliation. Given these
shortcomings in Mervine’s case, the district court found it unnecessary to decide
whether Mervine’s remarks during the January 28 conference call constituted
protected activity under the MWA. For the purposes of our decision, however, we
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will assume, without so deciding, that Mervine’s January 28 remarks constituted
protected activity.
Mervine first argues that the district court erred in concluding that he did not
show a causal connection between his protected activity and his termination sufficient
to establish a prima facie case of retaliation under the MWA. The MWA prohibits
an employer from retaliating against an employee who, “in good faith, reports a
violation, suspected violation, or planned violation of any federal or state law . . . to
an employer.” Minn. Stat. § 181.932(1); see also Pope v. ESA Servs., Inc., 406 F.3d
1001, 1010 (8th Cir. 2005), abrogated on other grounds by Torgerson, 643 F.3d at
1058. To establish a prima facie case under the MWA, Mervine had to show that he
engaged in statutorily protected activity, that he suffered an adverse employment
action, and that a causal connection existed between the two events. See Pope, 406
F.3d at 1010.
Mervine argues that the brief period of time between his protected activity and
his termination—approximately three weeks—supports an inference of a causal
connection between the two events sufficient to survive summary judgment. We
disagree. Although close temporal proximity between protected activity and
termination “may occasionally raise an inference of causation, in general, more than
a temporal connection is required.” Freeman v. Ace Tel. Ass’n, 467 F.3d 695, 697-98
(8th Cir. 2006) (internal citation omitted); see also Pope, 406 F.3d at 1010 (noting
that temporal proximity “without any other circumstantial evidence, fails to raise an
issue of material fact regarding causation”); Smith v. Allen Health Sys., Inc., 302
F.3d 827, 833 (8th Cir. 2002) (concluding that thirteen-day interval between
protected activity and adverse employment action was “sufficient, but barely so, to
establish causation”).
We conclude that any inference of a causal relationship between Mervine’s
January 28 remarks and his February 20 termination was “undermine[d]” by
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intervening events, namely, the complaints from Plant Engineering employees about
Mervine’s misconduct. Freeman, 467 F.3d at 698. As set forth above, the complaints
from Plant Engineering employees Botka, Sandiford, Mannello, and Dunlop
describing Mervine’s misconduct were received by Kreuiter following the January 28
conference call. Plant Engineering’s ensuing investigation of those complaints, as
well as of Mervine’s overall job performance, corroborated the complaints and
resulted in additional reports of Mervine’s unprofessional conduct.
Mervine asserts that these intervening events should not defeat an inference of
causation because the investigation into the employee complaints was engineered by
Picou, who Mervine contends had a motive to, and did in fact, retaliate against him.
This contention is belied by the record, which shows that it was Hicks, not Picou,
who initially suggested that Kreuiter should conduct employee interviews at Pine
Bend in response to the email complaints about Mervine.
Whatever causal inference that might have been drawn from the temporal
proximity between Mervine’s protected activity and the termination of his
employment was vitiated by the intervening, later-corroborated employee complaints,
as well as by the later-discovered additional misconduct. See id. (noting that
plaintiff’s admission during the two-week period following his MWA activity that he
had lied to his employer about his sexual relationship with a subordinate was among
the intervening events that “undermine[d]” an inference of a causal connection);
Cheshewalla v. Rand & Son Constr. Co., 415 F.3d 847, 852 (8th Cir. 2005) (noting
in Title VII retaliation case that plaintiff’s repeated absences from work and
employer’s reduction in force during the four-week period between the plaintiff’s
protected activity and her termination were intervening events that “eroded” any
inference of a causal connection). Because no rational trier of fact could conclude on
this record that Mervine’s protected activity was causally connected to his
termination, there was no genuine issue for trial. See Torgerson, 643 F.3d at 1042(“Where the record taken as a whole could not lead a rational trier of fact to find for
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the nonmoving party, there is no genuine issue for trial.” (citations omitted)). The
district court thus did not err in concluding that Mervine failed to satisfy his initial
burden of establishing a causal connection between his protected activity and his
termination sufficient to establish a prima facie case of retaliation under the MWA.
Moreover, even assuming that Mervine had established a prima facie case of
retaliation, he has not shown that Plant Engineering’s stated reason for terminating
his employment—unsatisfactory job performance—was pretext for retaliation. Cf.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973) (explaining that if
an employer comes forward with a legitimate, nondiscriminatory reason for the
adverse employment action, the employee must point to some evidence that the
employer’s proffered reason is pretextual); see Pope, 406 F.3d at 1010 (applying
McDonnell Douglas framework in MWA retaliatory-discharge case). To demonstrate
that Plant Engineering’s stated reason for terminating his employment was pretextual,
Mervine had to present sufficient evidence to create a material “question of fact as to
whether [that] reason was pretextual,” as well as sufficient evidence to support a
“reasonable inference that [Plant Engineering] acted in retaliation.” Stewart v. Indep.
Sch. Dist. No. 196, 481 F.3d 1034, 1043 (8th Cir. 2007) (quoting Logan v. Liberty
Healthcare Corp., 416 F.3d 877, 880 (8th Cir. 2005)). It was Mervine’s burden to
show that Plant Engineering’s stated reason had “no basis in fact” or that Plant
Engineering was “more likely motivated” by “a prohibited reason.” Gibson v.
Geithner, 776 F.3d 536, 540 (8th Cir. 2015). “In determining whether a plaintiff has
produced sufficient evidence of pretext, the key question is not whether the stated
basis for termination actually occurred, but whether the defendant believed it to have
occurred.” Macias Soto v. Core-Mark Int’l, 521 F.3d 837, 842 (8th Cir. 2008).
Mervine contends that Plant Engineering’s stated reason for terminating his
employment is unworthy of belief because Plant Engineering had long possessed
knowledge of problems at Pine Bend but did not investigate until Mervine engaged
in protected activity. As set forth above, however, Plant Engineering’s investigation
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into Mervine’s misconduct was prompted by the four separate complaints from
employees who had no knowledge of Mervine’s January 28 remarks. Mervine has
offered no plausible evidence that Kreuiter’s investigation was a sham or that Picou
engineered or manipulated the process or the results to retaliate against Mervine. His
allegation that Kreuiter’s investigation was biased is belied by the record, for
Kreuiter’s interview questions were neutral, unbiased, and designed to elicit candid
and truthful answers from employees about their overall job satisfaction, general
concerns they might have had with management, and their opinions on the state of
Plant Engineering’s relationship with Flint Hills. Kreuiter’s post-investigation
summary report documented every comment he received regarding Mervine, not
solely the negative responses. See Pulczinski v. Trinity Structural Towers, Inc., 691
F.3d 996, 1005 (8th Cir. 2012) (“The appropriate scope of an internal
investigation . . . is a business judgment, and we do not review the rationale behind
such a decision.”).
Mervine insists that he did not engage in the misconduct described by the
employees and that Plant Engineering’s reliance on these false reports is thus
evidence of pretext. The question, however, is not whether he “actually engaged in
the conduct for which he was terminated, but whether the employer in good faith
believed that [he] was guilty of the conduct justifying [the] discharge.” McCullough
v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 862 (8th Cir. 2009). Mervine points
to nothing in the record suggesting that Kreuiter and Picou did not honestly believe
that he had engaged in the misconduct described in the employee complaints and
interviews. See id.Mervine also contends that his positive performance review from Picou in
December 2013, a mere two months prior to his termination, is evidence that the
stated reason for his termination was pretextual. Mervine has proffered no evidence,
however, that Picou, the ultimate decisionmaker in Mervine’s termination, was aware
of Botka’s complaints about Mervine—or of any other problems with Mervine’s
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performance—at the time he issued the positive performance review. Mervine also
argues that pretext may be inferred from the fact that his predecessor at Pine Bend
had similar performance issues but was treated more favorably by Plant Engineering.
As noted by the district court, however, Mervine’s predecessor was having
difficulties responding to Flint Hills’s project schedules, while Mervine, by contrast,
“was accused of creating a hostile work environment, . . . sleeping during client
meetings, threatening other employees’ jobs, [and] other specific instances” of
misconduct, all of which were “documented and corroborated by the 22 interviews
Kreuiter completed.” Because Mervine and his predecessor did not engage in
misconduct of “comparable seriousness,” the fact that Mervine was treated differently
is insufficient to establish the existence of pretext. See Burton v. Ark. Sec’y of State,
737 F.3d 1219, 1230-31 (8th Cir. 2013).
Mervine contends that pretext may be inferred based on evidence that Plant
Engineering’s stated reason for terminating his employment has shifted. Evidence
of a substantial shift in an employer’s explanation for an employment decision may
be evidence of pretext, but “an elaboration generally is not.” Pulczinski, 691 F.3d at
1004. Plant Engineering has consistently stated that Mervine was terminated because
of his unsatisfactory job performance. See Phillips v. Mathews, 547 F.3d 905, 913
(8th Cir. 2008) (concluding that the reference to “an additional aspect of the same
behavior” that led to the adverse employment action did not constitute “a substantial
change in [the employer’s] story, and [was] not probative of pretext” (citations
omitted)); Smith, 302 F.3d at 835 (same); cf. Kobrin v. Univ. of Minn., 34 F.3d 698,
703 (8th Cir. 1994) (finding pretext in failure-to-hire case where employer’s proffered
reason was directly contradictory to the initial reason given to employee). Plant
Engineering’s descriptions of Mervine’s unsatisfactory job performance as
unprofessional behavior, creation of a hostile work environment, retaliatory activity,
and “degradation of leadership ability,” fall within the general category of
unsatisfactory job performance and thus do not reflect a substantial shift in Plant
Engineering’s stated reasons sufficient to establish pretext.
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In a similar vein, Mervine contends that Plant Engineering originally cited his
alleged involvement in the pornography industry as justification for terminating his
employment. Both Picou and Kreuiter, however, the only individuals involved in the
termination decision, testified that the pornography allegations played no role in the
decision to terminate Mervine’s employment, and we see nothing in the record that
calls their testimony into question.
The judgment is affirmed.
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