The opinion of the court was delivered by: J. Leon Holmes United States District Judge
Bryce Corporation has moved for summary judgment on Melissa Graham's claims of race discrimination under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and outrage under Arkansas law (Docket #39).*fn1 For the following reasons, the Court GRANTS summary judgment.
Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In deciding a motion for summary judgment, the Court views the facts in the light most favorable to the nonmoving party and draws all inferences in her favor, keeping in mind that "summary judgment seldom should be granted in discrimination cases where inferences are often the basis of the claim." Duncan v. Delta Consol. Indus., Inc., 371 F.3d 1020, 1024 (8th Cir. 2004) (citing Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1156 (8th Cir. 1999)). See also Bassett v. City of Minneapolis, 211 F.3d 1097, 1099 (8th Cir. 2000). If the evidence would allow a reasonable jury to return a verdict for the nonmoving party, summary judgment should be denied. Derickson v. Fidelity Life Assoc., 77 F.3d 263, 264 (8th Cir. 1996).
Melissa Graham, an African-American, was interviewed and hired to work at Bryce by Robert Skinner, Bryce's Human Resources Manager. Graham worked at Bryce from November 12, 2001, until Skinner fired her on March 20, 2003. Skinner states that he fired her for falsifying paid funeral leave and for dishonesty in violation of Bryce's policies. Graham alleges that Skinner set her up to violate the funeral leave policy and then, using the purported violation as a pretext, terminated her because of her race.
Bryce allows employees to take up to three days of paid funeral leave for the death of immediate family. The definition of "immediate family" in Bryce's employee handbook includes an employee's own grandparents but does not include the grandparents of an employee's husband or wife.
The grandmother of Graham's husband died on November 20, 2002. That day, Graham and James Graham, her brother-in-law who also worked for Bryce, met with Skinner to discuss funeral leave. The testimony differs on whether Graham informed Skinner that it was her husband's grandmother, not her own grandmother, who had died. James Graham testified that she did inform Skinner of that fact. Graham and Skinner state that she did not. Graham testified that Skinner already knew that she and James Graham were in-laws rather than brother and sister. Skinner stated that he never considered the fact that the deceased was not Graham's grandmother and assumed, based on the nature of the request and on the fact that Graham did not say otherwise, that she was. Skinner approved three days of paid funeral leave for both Graham and James Graham.
In March 2003, another employee requested funeral leave for the death of her husband's grandfather. After Skinner denied the request, the employee complained that Graham had received leave to attend the funeral of her husband's grandmother. On March 18, 2003, Skinner asked Graham whose funeral she had attended in November. Graham eventually told Skinner that it was her husband's grandmother.*fn2 On March 20, 2003, Skinner notified Graham that she was being discharged for falsifying paid funeral leave and for dishonesty in connection with this action.
Under Title VII, an employer cannot discharge or otherwise "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race . . . ." 42 U.S.C. § 2000e-2(a)(1). In the absence of direct evidence of discrimination, a Title VII claim is analyzed under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, the plaintiff must first establish a prima facie case of discrimination by showing that 1) she was a member of a protected group, 2) she was meeting the legitimate expectations of his employer, 3) she suffered an adverse employment action, and 4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 850 (8th Cir. 2005). If the plaintiff does so, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for taking the adverse employment action. Hammer v. Ashcroft, 383 F.3d 722, 724 (8th Cir. 2004). If the employer offers such a reason, the plaintiff must then present evidence sufficient to create a fact issue as to whether the employer's articulated reason is pretextual and to create a reasonable inference that race was a motivating factor. Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir. 2002).
Assuming that Graham has produced sufficient evidence to satisfy her prima facie burden, the evidence does not create a reasonable inference that Bryce intentionally discriminated against Graham on the basis of her race. A plaintiff may create an inference of unlawful race discrimination and thus defeat summary judgment in various ways: by producing direct evidence of the employer's discriminatory intent in the form of actions or remarks; by producing evidence that the position remained open after the discharge and was ultimately filled by a person of a different race; by relying on comparisons of treatment of similarly situated employees of a different race, or by some other means that gives rise to an inference that race, and not some other discriminatory or nondiscriminatory criteria, motivated the discharge. See Rodgers, 417 F.3d at 859 n.9 (Colloton, J., concurring) (citations omitted). In this case, Graham has produced no such evidence.
In her deposition, Graham compared herself to two white employees who either requested leave or received leave for a spouse's grandparent. Evidence that the plaintiff was treated less favorably than similarly situated employees of a different race can serve to prove disparate treatment. See id. at 853. At the pretext stage, comparison evidence gives rise to an inference of discrimination only if the plaintiff and the comparator "were similarly situated in all relevant respects." Id. at 852 (quoting Wheeler v. Aventis Pharms., 360 F.3d 853, 858 (8th Cir. 2004). The test is a rigorous one. Id.
Graham first compares herself to Stacie Johnson. Graham stated in her deposition that Johnson requested and received one day of paid funeral leave for the death of her husband's grandparent and is still employed by Bryce. The leave records show that Johnson took one day of vacation time, not one day of paid funeral leave. Hence, Johnson did not engage in the same conduct as Graham. No claim is ...