The opinion of the court was delivered by: Susan Webber Wright United States District Judge
This is an employment discrimination case. Plaintiff Pecolia Diggs ("Diggs"), proceeding pro se, sues the City of Osceola under Title VII of the 1964 Civil Rights Act, as amended by the Civil Rights Act of 1991. Diggs, who is black, claims that the City discriminated against her by treating her less favorably than white employees and by terminating her employment based on her race. Diggs also claims that the City retaliated against her for filing a discrimination charge. Before the Court is the City's motion for summary judgment (docket entries #80, #81, #82) and Diggs' response (docket entry #87). After careful consideration, and for the reasons that follow, the motion for summary judgment will be granted.
The following facts are undisputed.*fn1 On February 24, 2004, Diggs was hired to work as a dispatcher and a jail matron at the Osceola Police Department ("Department"). On December 21, 2004, Diggs filed a discrimination charge with the Equal Employment Opportunity Commission ("EEOC"), alleging disparate treatment based on race. See docket entry #2, attachment.
On February 26, 2005, Diggs' supervisor, David Gladden ("Gladden") disciplined Diggs by way of written notice for three employment violations: (1) absence from work without approval on January 15, 2005; (2) failing to perform employment duties on January 24, 2005; and (3) leaving work without permission on February 8, 2005, after misinforming a supervisor that such permission had been granted. Docket entry #81, ¶ 10; docket entry #80-3, ¶¶ 17-20. Gladden informed Diggs that future violations would result in her immediate termination. Docket entry #80-3, ¶ 21. Later that day, Diggs and a co-worker, Rebecca Ryckman, argued. Docket entry #81, ¶ 12. Gladden determined that Diggs was primarily responsible for the altercation, and he terminated Diggs' employment. Id.,¶¶ 14-15.
Summary judgment is appropriate 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 judgment as a matter of law. Fed. R. Civ. P. 56(c). As a prerequisite to summary judgment, a moving party must demonstrate "an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has properly supported its motion for summary judgment, the non-moving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The non-moving party may not rest on mere allegations or denials of his pleading but must "come forward with 'specific facts showing that there is a genuine issue for trial.'" Id. at 587 (quoting Fed. R. Civ. P. 56(e)). "[A] genuine issue of material fact exists if: (1) there is a dispute of fact; (2) the disputed fact is material to the outcome of the case; and (3) the dispute is genuine, that is, a reasonable jury could return a verdict for either party." RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995).
III. Wrongful Termination
Because Diggs presents no evidence that clearly points to the presence of an illegal motive for her termination she "must avoid summary judgment by creating the requisite inference of unlawful discrimination through the McDonnell Douglas analysis, including sufficient evidence of pretext." Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004). Under the three-stage order of proof set forth in McDonnell Douglas, Diggs must first establish a prima facie case of discrimination by showing (1) membership in a protected group, (2) that she met the legitimate expectations of her employer, (3) that she suffered adverse employment action, and (4) facts that permit an inference of discrimination. Id. If Diggs establishes a prima facie case, the City must articulate a legitimate, nondiscriminatory reason for her termination. Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1332 (8th Cir. 1996). Finally, the burden shifts back to Diggs to show that the proffered reasons are pretextual and that discrimination based on race was the real reason for her termination.
The City asserts that Diggs cannot show that she met the legitimate expectations of her employer, as required to establish a prima facie case of discrimination. Additionally, the City asserts that Gladden terminated Diggs' employment for legitimate, nondiscriminatory reasons: the violations for which she received written notice on February 26, 2005 and her involvement in the altercation that took place on February 26, 2005. The City contends that Diggs is unable to show that the stated reasons for her termination are pretext for race discrimination.
As evidence that she met the legitimate expectations of her employer, Diggs states that she missed work only to meet a doctor's appointment, she had no complaints from jail patrons, and she received a raise. However, Diggs' conclusory statements regarding her job performance are insufficient to overcome summary judgment. See LaCroix v. Sears, Roebuck, & Co., 240 F.3d 688, 691 (8th Cir.2001) (holding that conclusory statements alone are insufficient to withstand properly supported summary judgment motion).
Even assuming that Diggs could make out a prima facie case of discrimination based on wrongful termination, the Court agrees that she has failed to show that the stated reasons for her termination are pretext for discrimination. In an effort to make the required showing, Diggs states: "I witnessed employees with seniority and employees who came after me argue with each other. They weren't terminated." Docket entry #85, at 5. Although instances of disparate treatment can support a finding of pretext, Diggs has the burden of proving that she and other employees who were not terminated for engaging in arguments were similarly situated in all relevant respects. See E.E.O.C. v. Kohler Co. 335 F.3d 766, 775 -776 (8th Cir. 2003)(citing Lynn v. Deaconess Medical Ctr.-West Campus, 160 F.3d 484, 487 (8th Cir.1998)). Additionally, to be probative evidence of pretext, the misconduct of a more leniently disciplined employee must be of comparable seriousness. Id. (citations omitted). Here, Diggs presents no evidence that other similarly situated employees, not members of her protected class, committed the same transgressions as she and were not terminated.
Diggs points out that the State of Arkansas Board of Review reviewed her claim for unemployment benefits and found that her employment with the City was terminated for reasons other than misconduct. See docket entry #2, attachment. In deciding Diggs' claim for unemployment benefits, the Board found that the City failed to carry its burden to show, by a preponderance of the evidence, that Diggs was guilty of "an intentional or deliberate violation of the employer's rules; a willful or wanton disregard of the standards of behavior . . . ; or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design." Id. at 4. Here, however, the City is only required to articulate a legitimate, nondiscriminatory reason for Diggs' termination. It is Diggs who shoulders the burden to rebut the proffered ...