Submitted: May 11, 2017
from United States District Court for the District of
Nebraska - Omaha
RILEY, BEAM, and SHEPHERD, Circuit Judges.
Smith and Sam Edwards, both African-American men, brought
separate suits against Hiland Roberts Dairy, Co.,
Hiland Dairy Foods Company, L.L.C. (collectively, Hiland
Dairy), alleging race discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§§ 2000e, et seq., and the Nebraska Fair
Employment Practice Act (NFEPA), Neb. Rev. Stat. §§
48-1101, et seq. The district court granted summary
judgment to Hiland Dairy in both cases, finding Smith and
Edwards failed to produce sufficient evidence to support
their claims. We affirm.
and Edwards were Hiland Dairy employees and worked at Hiland
Dairy's facility in Omaha, Nebraska. Both worked as part
of a sanitation crew, responsible for equipment maintenance
between the facility's production cycles. On July 26,
2013, Smith, at Edwards's request, used Edwards's
company-issued identification card to clock Edwards out after
Edwards had left the facility, in violation of Hiland
Dairy's timecard policies. Smith initially did not admit
to clocking Edwards out, but later confessed when confronted
with a video recording of the incident. Less than one week
later, Hiland Dairy conducted an investigation and terminated
Edwards's and Smith's employment, citing "theft
of time" and dishonest conduct as reasons for
and Edwards filed charges of discrimination with the United
States Equal Employment Opportunity Commission (EEOC) and the
Omaha Human Rights and Relations Department (OHRRD).
According to the complaints, the OHRRD found in each case
"there was reasonable cause to believe that
plaintiff's race was a motivating factor in his
termination by the defendant" and set up conciliatory
meetings on April 2, 2014. Hiland Dairy failed to attend the
meetings, and the OHRRD determined the "conciliation
failed and forwarded the charge to the EEOC." The EEOC
issued a right to sue letter to each plaintiff on June 4,
2014. Smith and Edwards subsequently filed actions against
Hiland Dairy, alleging unlawful termination in violation of
federal and state law. See 42 U.S.C. §
2000e-2(a)(1) (prohibiting discriminatory employment
practices on the basis of race); Neb. Rev. Stat. §
48-1104(1) (same). In support of their employment
discrimination claims, they alleged two similarly-situated
white employees named in the complaints violated the same
policies by leaving work without clocking out and falling
asleep on the job, but were not terminated.
Dairy moved for summary judgment, which the district court
granted in both cases. The district court concluded Smith and
Edwards, without any direct evidence of race discrimination,
both failed to demonstrate a prima facie case of employment
discrimination. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973) (prima facie case absent
direct evidence). The district court also concluded that even
if Smith and Edwards had satisfied their prima facie cases,
and the burden shifted back to Hiland Dairy to show a
legitimate, nondiscriminatory reason for the terminations,
Smith and Edwards had not provided sufficient evidence of
pretext under the more rigorous standard. Smith and Edwards
each appealed, and we granted Hiland Dairy's unopposed
motion to consolidate their appeals. See 28 U.S.C.
§ 1291 (appellate jurisdiction); Fed. R. App. P.
review the district court's grant of summary judgment de
novo, viewing the facts in the light most favorable to the
nonmoving party and giving that party the benefit of all
reasonable inferences that can be drawn from the
record.'" Banks v. John Deere & Co.,
829 F.3d 661, 665 (8th Cir. 2016) (quoting Minn. ex rel.
N. Pac. Ctr., Inc. v. BNSF Ry. Co., 686 F.3d 567, 571
(8th Cir. 2012)). Summary judgment must be granted "if
the movant 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). To prevent summary
judgment, "[t]he nonmovant 'must do more than simply
show that there is some metaphysical doubt as to the material
facts, ' and must come forward with 'specific facts
showing that there is a genuine issue for trial.'"
Torgerson v. City of Rochester, 643 F.3d 1031, 1042
(8th Cir. 2011) (en banc) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
Smith and Edwards did not produce direct evidence of
discrimination, we apply the McDonnell Douglas
burden-shifting framework. See Shirrell v. St. Francis
Med. Ctr., 793 F.3d 881, 887 (8th Cir. 2015). Under the
McDonnell Douglas framework, a plaintiff must first
establish a prima facie case of race discrimination by
showing "(1) he was a member of a protected group; (2)
he was qualified to perform the job; (3) he suffered an
adverse employment action; and (4) circumstances permit an
inference of discrimination." Huynh v. U.S.
Dep't of Transp., 794 F.3d 952, 958 (8th Cir. 2015).
If a plaintiff "establishes a prima facie case, a
presumption of discrimination arises and the burden shifts to
[the employer] to present evidence of a 'legitimate,
nondiscriminatory reason for' its adverse employment
action." Banks, 829 F.3d at 666 (quoting
McDonnell Douglas, 411 U.S. at 802). If the employer
satisfies its burden, the presumption disappears and the
plaintiff must provide evidence demonstrating the
employer's proffered nondiscriminatory reason is mere
pretext for intentional discrimination. See id. We
pass over the district court's finding that Smith and
Edwards did not satisfy their prima facie cases and address
the district court's second basis for its decision,
insufficient evidence of pretext to defeat Hiland Dairy's
legitimate reason for terminating Smith and Edwards.
and Edwards concede Hiland Dairy satisfied its burden by
articulating and presenting evidence of a legitimate and
nondiscriminatory reason for firing them. Assuming Smith and
Edwards could establish their prima facie cases, they could
only survive summary judgment if they discredited Hiland
Dairy's proffered nondiscriminatory reason by providing
evidence that reason was pretext for a discriminatory motive.
See Johnson v. Securitas Sec. Servs. USA, Inc., 769
F.3d 605, 611 (8th Cir. 2014) (en banc). "'A
plaintiff may show pretext, among other ways, by showing that
an employer (1) failed to follow its own policies, (2)
treated similarly-situated employees in a disparate manner,
or (3) shifted its explanation of the employment
decision.'" Schaffhauser v. United Parcel Serv.,
Inc., 794 F.3d 899, 904 (8th Cir. 2015) (quoting
Lake v. Yellow Transp., Inc., 596 F.3d 871, 874 (8th
and Edwards contend the circumstances of their terminations
created an inference of discrimination because they were
disciplined more severely than similarly-situated white
employees, Bernie Turbes and Steve Rezac, for similar
offenses. "At the pretext stage, the test for whether
someone is sufficiently similarly situated, as to be of use
for comparison, is rigorous." Johnson, 769 F.3d
at 613. Smith and Edwards must establish they and the white
employees are "'similarly situated in all relevant
respects.'" Id. (quoting Bone v. G4S
Youth Servs., LLC, 686 F.3d 948, 956 (8th Cir. 2012)).
Additionally, the employees "'used for comparison
must have dealt with the same supervisor, have been ...