No UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT LEE SMITH, Appellant, INTERNATIONAL PAPER COMPANY, Appellee.

Transcription

1 No UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT LEE SMITH, Appellant, v. INTERNATIONAL PAPER COMPANY, Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS BRIEF OF APPELLANT SOPHIE M. ALCORN* THEODORE R. BYNUM III* MATTHEW W. LEWIS* THERESA S. NGUYEN* BENJAMIN NORRIS IV* St. Louis, MO JEFFREY D. PAWLITZ* Telephone: (314) D. BRUCE LA PIERRE Appellate Clinic Washington University School of Law One Brookings Drive DAVID A. TERRY* Telecopier: (314) ELIZABETH A. WHITE* *Admitted Under 8th Cir. R. 46B Governing Student Practice Attorneys for Appellant Lee Smith

2 Summary of the Case and Request for Oral Argument Lee Smith complained to International Paper (IP) Company officials about racial harassment by his supervisor George Boyette. After Boyette confronted Smith and learned that Smith had made this complaint, Smith testified that Boyette said: I m going to get you. App. 43. Boyette, in his capacity as Smith s supervisor, subsequently imposed each of the four disciplinary sanctions that led to the termination of Smith s employment. In granting summary judgment to IP on Smith s Title VII retaliation claim, the district court ignored Smith s testimony that his supervisor Boyette made a retaliatory threat. It ignored Boyette s threat as direct evidence of retaliation under the mixed-motives method of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The district court applied instead the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) to Smith s retaliation claim, but it ignored Boyette s threat as evidence that there was a causal connection between Smith s complaint about Boyette and the termination of his employment and as evidence that IP s reasons for discharging Smith were in fact a pretext, a cover up for retaliation. Appellant Smith respectfully submits that oral argument would materially aid this Court in the disposition of this appeal and suggests that this Court grant each side 15 minutes to present their arguments.

3 Table of Contents Page Summary of the Case and Request for Oral Argument...i Table of Contents... ii Table of Authorities...iv Jurisdictional Statement...1 Statement of Issues...1 Statement of the Case...2 Statement of Facts...3 Summary of Argument...14 Standard of Review...17 Argument...18 I. Boyette s Threat to Get Smith Is Direct Evidence of Retaliation Under the Mixed-Motives Method of Price Waterhouse...21 A. Smith Presented Direct Evidence of Retaliation Boyette Was Involved in the Decision-Making Process A Factfinder Could Infer that Retaliation Was More Likely than Not a Motivating Factor in Disciplining and Terminating Smith...27 B. IP Cannot Meet Its Burden of Showing It Would Have Terminated Smith in the Absence of a Retaliatory Motive...30 II. Boyette s Threat to Get Smith Creates a Triable Question of Fact on the Ultimate Issue of Retaliation Under the McDonnell Douglas Framework...35 A. Boyette s Retaliatory Threat Provides a Causal Connection Between Smith s Complaints of Racial Harassment and His Termination...38 ii

4 B. A Reasonable Jury Could Find that Retaliation Was a Determinative Factor in the Termination of Smith s Employment...41 Conclusion...49 Certificate of Compliance...50 Certificate of Service...51 iii

5 Cases Table of Authorities Arraleh v. County of Ramsey, 461 F.3d 967 (8th Cir. 2006), cert. denied, 2007 WL (April 23, 2007)...29 Beshears v. Asbill, 930 F.2d 1348 (8th Cir. 1991)...22 Buettner v. Arch Coal Sales Co., 216 F.3d 707 (8th Cir. 2000)...48 Burlington N. & Santa Fe Ry. v. White, 126 S. Ct (2006)...18 Carrington v. City of Des Moines, 481 F.3d 1046 (8th Cir. 2007)... passim Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001)...41 Cronquist v. City of Minneapolis, 237 F.3d 920 (8th Cir. 2001)... passim Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409 (5th Cir. 2003)... passim Fierros v. Tex. Dep't of Health, 274 F.3d 187 (5th Cir. 2001)... 31, 34 Gagnon v. Sprint Corp., 284 F.3d 839 (8th Cir. 2002)...30 Garner v. Mo. Dept. of Mental Health, 439 F.3d 958 (8th Cir. 2006)...25 Green v. Franklin Nat l Bank of Minneapolis, 459 F.3d 903 (8th Cir. 2006)...18 Griffith v. City of Des Moines, 387 F.3d 733 (8th Cir.2004)... 17, 30 Haas v. Kelly Servs. Inc., 409 F.3d 1030 (8th Cir. 2005)...18 Hesse v. Avis Rent A Car Sys., Inc., 394 F.3d 624 (8th Cir. 2005)...17 Higgins v. Gonzales, 481 F.3d 578 (8th Cir. 2007)...19 Kiel v. Select Artificials, Inc., 169 F.3d 1131 (8th Cir. 1999)... 29, 37 Kipp v. Missouri Highway and Transp. Comm n, 280 F.3d 893 (8th Cir. 2002)...39, 40 Kneibert v. Thomson Newspapers, Michigan, Inc., 129 F.3d 444 (8th Cir. 1997)...passim iv

6 Logan v. Liberty Healthcare Corp., 416 F.3d 877 (8th Cir. 2005), cert. denied, 126 S.Ct (2006)...37 Luciano v. Monfort, Inc., 259 F.3d 906 (8th Cir. 2001)... passim McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)... i, 1, 15, 19 Moore v. City of Philadelphia, 461 F.3d 331 (3d Cir. 2006)... passim Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)...18 Norbeck v. Basic Elec. Power Coop., 215 F.3d 848 (8th Cir. 2000)... 24, 30 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)... passim Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444 (8th Cir. 1993)... 22, 24 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)...44 Russell v. City of Kansas City, Missouri, 414 F.3d 863 (8th Cir. 2005)...29, 35 Stallings v. Hussmann Corp., 447 F.3d 1041 (8th Cir. 2006)...23 Stone v. City of Indianapolis Pub. Util. Div., 281 F.3d 640 (7th Cir. 2002)...24, 33 Sylvester v. SOS Children s Vills. Ill., Inc., 453 F.3d 900 (7th Cir. 2006)...33 Thomas v. Corwin, No , 2007 WL (8th Cir. Apr. 3, 2007)...passim Thompson v. Bi-State Dev. Agency, 463 F.3d 821 (8th Cir. 2006)...23 Turner v. Gonzales, 421 F.3d 688 (8th Cir. 2005)...40 Twymon v. Wells Fargo & Co., 462 F.3d 925 (8th Cir. 2006)... 19, 23 Wallace v. DTG Operations, Inc., 442 F.3d 1112 (8th Cir. 2006)... passim v

7 Statutes 28 U.S.C (2006) U.S.C (2006) U.S.C. 2000e (2006)... 1, 2, 18 Rules Fed. R. Civ. P vi

8 Jurisdictional Statement Jurisdiction over Lee Smith s action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, was based on 28 U.S.C The district court entered its order granting summary judgment for International Paper Company on July 19, 2005, App. 117, and Smith filed a timely notice of appeal on August 16, Id. at 118. This Court has jurisdiction over the appeal under 28 U.S.C. 1291, which provides for jurisdiction over a district court's final judgment. Statement of Issues 1. Whether an employee s testimony that his supervisor threatened to get him because he had complained about racial harassment is direct evidence of retaliation under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Luciano v. Monfort, Inc., 259 F.3d 906 (8th Cir. 2001) Cronquist v. City of Minneapolis, 237 F.3d 920 (8th Cir. 2001) 2. Whether an employee s testimony that his supervisor threatened to get him because he had complained about racial harassment creates a genuine issue of material fact under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) that retaliation was a determinative factor in the decision to fire the employee. Carrington v. City of Des Moines, 481 F.3d 1046 (8th Cir. 2007) Wallace v. DTG Operations, Inc., 442 F.3d 1112 (8th Cir. 2006) Moore v. City of Philadelphia, 461 F.3d 331 (3d Cir. 2006)

9 Statement of the Case On February 22, 2003, Lee Smith filed an employment discrimination charge with the Equal Employment Opportunity Commission (EEOC) under Title VII of the Civil Rights Act, 42 U.S.C. 2000e. App. 30. Smith alleged that the International Paper Company (IP) disciplined him and discharged him because of his race and in retaliation for lodging a complaint about his treatment by a supervisor. Id. After the EEOC issued a right to sue letter, id. at 31, Smith filed a complaint in the United States District Court for the Western District of Arkansas on January 30, 2004, and he amended his complaint on November 18, Id. at 27-31, The Honorable Harry F. Barnes, United States District Court Judge, granted IP s motion for summary judgment on July 19, Id. at 117. Smith filed a notice of appeal from the district court s order and an application to proceed in forma pauperis on August 16, Id. at 3, 118. On November 27, 2006, this Court appointed the Washington University School of Law Appellate Clinic, under the supervision of D. Bruce La Pierre, to represent Smith on this appeal and to address the question whether the district court properly granted summary judgment on appellant s claim alleging unlawful retaliation pursuant to 42 U.S.C. Section 2000e-3(a). 2

10 Statement of Facts Lee Smith, an African-American man, worked for International Paper Company (IP) at the Gurdon Wood Products Complex from August 23, 1999 to January 6, App Smith testified at his deposition that George Boyette, his white supervisor, harassed and discriminated against him on the basis of race. Id. at 44-45, Smith worked for twenty-six months at IP without incident before he complained about Boyette s constant harassment to IP s Human Resources Managers at an October 2001 meeting. Id. at. 24. After Smith made this complaint, Boyette confronted Smith. Id. at 43. Boyette asked Smith if he had reported him for harassment. Id. When Smith confirmed that he had made such a report, Smith testified that Boyette threatened: I m going to get you. Id. After making this threat, Boyette was involved in each step of Smith s discipline and termination under IP s four-step disciplinary process. Id. at 15, 18, 19, Smith testified that Boyette was trying to set me up to... get fired, id. at 67, and he claimed that Boyette used IP s disciplinary process as a pretext and a smoke screen to terminate him. Id. at 84, 99. A. Boyette s Initial Supervision of Smith: Disqualification from the Big Chipper Job Smith began working for IP on August 23, App. 24. Before he started working under the supervision of George Boyette, Smith worked for three other white supervisors at IP without incident, id. at 38-39, and he received periodic pay 3

11 increases. Id. at 11. Smith testified that his problems began once Boyette became his supervisor. Id. at Boyette first supervised Smith as a big chipper operator in August 2001 and then again as a Bobcat trainee and Bobcat operator from October 2001 until his termination in January Id. at 44, 52. Smith testified that Boyette constantly harassed him because of his race. Id. at 44-45; see id. at 47-48, He testified that on a nightly basis [Boyette] would harass me, he would cuss me, say things to me that I felt was inappropriate. Id. at 45. For instance, he testified that Boyette cussed at him by using the F word and saying [w]hat the - - you doing, and get your ass back to work and that Boyette falsely accused Smith of damaging a Bobcat. Id. at 48, 50. Smith also testified that Boyette never yelled or cursed his white friends and that he harassed another black employee by yelling, cussing at him every night. Id. at 50, Around Labor Day 2001, Smith became the top bidder on the kicker booth and the big chipper jobs. Id. at He wanted to accept the kicker booth job, but he testified that Boyette insisted that Smith should be a team player and take the big chipper job. Id. at About one week after accepting the big chipper job, Smith did not follow proper lockout procedures on the big chipper belt. Id. at He testified that, because [n]o one ever showed me... or told me, he did not know that the purpose of locking out the belt was to prevent injuries. Id. at 42. 4

12 When Smith asked Mr. Boyette... why wasn t [he] given any training or anything,... Mr. Boyette told [him] it wasn t his job to train [Smith] or show [him] anything. Id. Smith did not seek out other means of training in the operation of the big chipper because shortly after he complained Mr. Boyette disqualified him. Id. at 46. After he had failed to follow big chipper belt lockout procedures, Boyette warned Smith that he could sign off from the job, [or] go into investigation and be fired. Id. at 43. Smith testified that he told Boyette that it was unfair to disqualify him from the big chipper job because he never gave me any help on showing me or even allowing anyone to show me how to operate the belt. Id. at 42. When Smith accused Boyette of being racially prejudiced, Boyette responded, I m not prejudiced, I don t discriminate; there were several whites that I would put on the same ship with you. Id. at Smith testified that Boyette s statement about putting him on a ship was racist. Id. at He alleged that from the perspective of an African-American Boyette s statement was humiliating, degrading, and harassment at its lowest form. Id. at 98. After Boyette disqualified Smith from the big chipper job, Smith returned to his stacker job. Id. at Smith testified that one of Boyette s white friends was next in line for the kicker booth job or the big chipper job. Id. at 70. 5

13 B. Smith s Complaint to IP About Boyette s Harassment After returning to the stacker job, Smith bid for and won a Bobcat position on a trial basis for thirty days, and Boyette again became Smith s supervisor. App. 24, Smith testified that he complained about Boyette s harassment to IP s Human Resources Managers at a peer review meeting in October Id. at 30, 43, 47. The actual date of this October meeting is not clear. Smith testified that he made his complaint during the time that he was going through my 30-day training period on the Bobcat, id. at 48, and this training period ended on October 29, 2001 when Smith formally became a Bobcat/dumptruck operator. Id. at 24. IP stated that Mr. Smith participated in peer review training on October 30, 2001, id. at 81, and the district court stated simply that Smith complained about Boyette s harassment at the October 2001 peer review meeting. Id. at 116; see id. at 109. Smith testified that at the peer review meeting he complained that Mr. Boyette was, on a nightly basis he was cussing me, hollering, yelling at me... accusing me of doing damage to the Bobcat that I was not doing. Id. at IP s Human Resources Managers, including Byron Brister and Chris Bluethman, told Smith that [t]hey would check into [his] complaint and would handle it from there. Id. at 51. Brister then began watching Boyette. Id. Smith testified that Byron Brister would come out on a nightly basis at midnight, and he would stay a 6

14 couple of hours, up until the night that Mr. Boyette qualified me on the Bobcat position. Id. Smith testified that IP s Human Resource Managers never contacted him after the October 2001 peer review meeting, id. at 51, and he alleged that he received no information about the investigation of his complaint from anyone and that IP allowed the harassment to continue in violation of their own written policy. Id. at 99. Smith testified that Boyette s harassment and discrimination was ongoing and that he was constantly being harassed by Mr. Boyette, but that he did not complain about Boyette s behavior again because there was no one I felt that I could trust. Id. at 75, 78. C. Boyette s Retaliatory Threat Smith testified that, at some time after the peer review meeting, Boyette confronted him and threatened him: App. 43. After I complained to Byron Brister, Chris Bluethman and several other managers who were in a peer review meeting in October of 01, one night Mr. Boyette came to me and asked me did I tell that he was harassing me, and I told him that I did. And at that point Mr. Boyette made a statement that, I m going to get you. D. Boyette s Decision To Qualify Smith for the Bobcat Position Smith completed his thirty-day Bobcat training period on October 29, App. 24. Smith testified that Boyette told him at the end of his thirty day training 7

15 period that he was going to disqualify me off the Bobcat position. Id. at 44. In response to Boyette s explanation that Smith was too slow on the position, Smith told Mr. Boyette that I was going to go to the front office and talk to management about it. And then all of a sudden Mr. Boyette changed his mind and said that he was going to qualify me on the position. Id. Smith also testified that Boyette knew that Byron Brister was out watching and so he qualified me on the position, and after that I didn t see Byron out on the job anymore. Id. at 51. E. Boyette s Imposition of Disciplinary Sanctions on Smith IP has a four-step disciplinary policy: 1) verbal warning, 2) written warning, 3) final written warning, and 4) discharge. App. 24, 81. IP had not taken any disciplinary steps against Smith before Boyette threatened to get him. After making this threat, Boyette, in his capacity as Smith s supervisor, imposed the four disciplinary sanctions that led to the termination of Smith s employment. Id. at 15 (Step 1), 18 (Step 2), 19 (Step 3), (Step 4- Discharge). Smith testified that I felt as though [Boyette] was trying to set me up to... get fired and that Boyette told him that he wasn t going to fire me, he was going to let me fire myself. Id. at 67. He alleged that Boyette used IP s disciplinary policy as a smoke screen, and a pre-text to terminate his employment. Id. at 99. 8

16 Step 1: Boyette, and another supervisor Brian Hendrix, issued a Verbal Warning on November 20, 2001 because Smith damaged a dump truck and failed check the full extent of damages. Id. at 15. Conversation: Boyette charged that Smith had taken a long break on January 7, 2002, but he did not designate this charge as a disciplinary step. Id. at 16-17, 24. Boyette reported that he observed Smith taking a break of more than ten minutes in the re-chipper booth. Id. at Smith testified that breaks were for ten minutes and that he was in the re-chipper booth for more than ten minutes, id. at 58, but he explained that he had not taken [his] earlier ten-minute break, and [he] told Mr. Boyette that particular night, because it was cold, [he] just combined the two breaks to one. Id. at Smith admitted that there was no plant rule permitting the combination of breaks and that he had not asked for permission to combine breaks, but he testified that combining breaks was something that he did all the time and Mr. Boyette was aware of that. Id. at 59. Smith testified that he did not know that there was any document memorializing the January 7, 2002 incident until the EEOC sent a copy to him over a year later. Id. at 60. Boyette, however, noted on the January 7, 2002 report that Smith wrote refused on the signature line of this document and that Smith said he agreed with what was said but didn t feel there was any reason for him to sign his name. Id. at 17. 9

17 Step 2: Boyette gave Smith a Written Warning, Step 2 of the Disciplinary process, on January 18, 2002 for failure to report [damage to a Bobcat] immediately to his Supervisor. Id. at 18. Boyette stated in his report that Smith stated that he had discovered damage to the Bobcat s door at the beginning of his shift and damage to the exhaust pipe about fifteen minutes later and that Smith took the Bobcat to the Mobile Shop for repairs before calling Boyette. Id. Smith refused to sign the Written Warning and wrote on the form: I refused to sign[,] I disagree with the assessment. Id. at 18, 61. He stated in his deposition that he noticed at the beginning of his shift that the Bobcat door was damaged and that ten or fifteen minutes later he noticed that the exhaust pipe had been mashed flat. Id. at 61. Smith testified that when he discovered this damage, he immediately searched for Boyette and tried to report the damage: I went to the kicker booth where Mr. Boyette normally [would] be; he wasn t there. I asked the operator at the time did he know where Mr. Boyette was; he said he did not. Id. at 62. After he searched for Boyette, Smith took the Bobcat to the shop for repairs, called Boyette, and told him about the damage. Id. ( At that point I called back to the kicker booth and Mr. Boyette was in the kicker booth at the time, and at that time was when I told him about what had happened. ) IP requires that employees immediately report any accident or injury, no matter how minor it is. Id. at 7. This policy does not require immediate reports 10

18 of damage. Id. Smith testified that I saw damage to the equipment, but I didn t see what actually happened so I couldn t report an accident. Id. at 63. Step 3: Boyette issued Smith a Final Written Warning for sleeping on the job on February 23, Id. at 19. Smith admitted in his deposition that he went inside the Re-Chipper booth to warm up and [he] may have [fallen] asleep and that he signed the warning. Id. at Step 4 Termination: Boyette recommended discharge for failure to report damage that was done to equipment [Smith was] responsible for. Id. at 20; see id. at 22 ( Lee was on final written warning and failed to report damage that was done to the bobcat before operating it. ). Boyette reported that he asked Smith on December 30, 2002 whether there had been an accident involving the Bobcat on the night of December 28, 2002 and that Smith told him that the only thing that he knew was wrong with the Bobcat was that it had a broken hinge. Id. at 20. Boyette reported that Smith stated that he had not reported the damage because he [Smith] was tired of running and telling what was wrong with the Bobcat because there was always something wrong with the Bobcat. Id. Smith stated in his deposition that Boyette had been accusing him of causing damage for which he was not responsible. Id. at 74. He also testified that [he] had been reporting to Mr. Boyette on a nightly basis showing him damage that was being done to the Bobcat... prior to the beginning of my shift, but Boyette told 11

19 him that I don t give a damn what happened just as long as you don t do damage to it. Id. at 66. Smith testified that on December 30, 2002 he told Boyette that he had not seen an accident with the Bobcat on the last night that he had worked. Id. at 20, Although Smith had seen a crack in the hinge of the Bobcat door, he had not reported it. Id. at 66. Smith had not reported the damage because Boyette had told him that he didn t give a damn about the damage to the Bobcat as long as [Smith] didn t do the damage. Id. at 67. Smith testified that [he] felt as though [Boyette] was trying to set me up to... get fired. Id. Smith also testified that he did not report the damage because he did not see an accident. Id. at 66. IP s accident or injury policy does not require immediate reporting of damage. Id. at 7. When Boyette suspended Smith on December 30, 2002 and walked him to his car, Smith testified that Boyette said: You see we got a new Bobcat; I guess you ll never get a chance to operate that one. Id. at 76. IP terminated Smith s employment on January 6, Id. at 11, 22. F. District Court Decision The district court granted IP s motion for summary judgment on Smith s racial discrimination, hostile work environment, and retaliation claims. App The district court found that Boyette s comment to Smith ( I m not prejudiced. 12

20 I don t discriminate; there are several whites that I would put on the same ship as you ) provided some support for Smith s racial discrimination and hostile work environment claims. Id. at 113, 115. The court, nonetheless, granted IP s motion for summary judgment on these two claims. Id. at 114, 115. Smith does not appeal from the district court s order granting IP summary judgment on his racial discrimination and hostile work environment claims. The only issue on appeal is Smith s Title VII retaliation claim. The district court, in its brief discussion of Smith s retaliation claim, did not address Smith s testimony that Boyette had threatened to get him because he had complained about Boyette to IP. See id. at It held instead that Smith could not establish a prima facie case of retaliation under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), because there is no causal connection between Smith s termination and his complaints of racial harassment. Id. at 116. The period of time between Smith s termination and his complaints of racial harassment which the district court incorrectly identified as 26 months and which was in fact 15 months (see infra note 8, page 40 and accompanying text) dilute[d] an inference of causation between an adverse employment action and participation in a protected activity. Id. The court s analysis of the remaining elements of Smith s retaliation claim was grounded exclusively on its previous assessment of his discrimination claim 13

21 under McDonnell Douglas. The district court held that [e]ven if Smith could establish a prima facie case of retaliation, IP had a legitimate, non-discriminatory reason for firing Smith and Smith cannot establish that the reason for firing him was pretext for racial discrimination, as discussed above in section II., A. [App ]. Id. at 116. The district court had previously held in section II., A. that Smith could not show that the employer s reasons were pretext for discrimination because he did not show that white employees were treated differently than he. Id. at 114. Summary of Argument 1. The district court erred in failing to analyze Lee Smith s Title VII retaliation claim under the mixed-motives method of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The court ignored Smith s testimony that, after he complained to IP s Human Resource Managers, his supervisor George Boyette confronted Smith and asked whether Smith had reported him for harassment. App. 43. When Smith confirmed that he had made such a report, Boyette threatened: I m going to get you. Id. Boyette s threat is direct evidence of retaliation. Boyette was involved in the decision-making process, and his threat directly reflect[s] [a retaliatory] attitude sufficient to permit the factfinder to infer that that attitude was more likely than not a motivating factor in IP s decision. Cronquist v. City of Minneapolis, 237 F.3d 920, 925 (8th Cir. 2001). 14

22 Because Smith presented direct evidence of an impermissible retaliatory motive, the burden shifts to IP, which must show by a preponderance of the evidence that it would have made the same decision absent a retaliatory purpose. See Carrington v. City of Des Moines, 481 F.3d 1046, 1052 (8th Cir. 2007). IP cannot make this showing. IP s evidence that it had legitimate reasons to discipline and terminate Smith is not enough to disprove that retaliation was a factor in these decisions. Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 418 (5th Cir. 2003). IP s evidence creates an issue for trial: whether it would have disciplined and terminated Smith even if he had not complained about racial harassment. The district court erred in granting summary judgment because there is no showing on the summary judgment record that IP had a legitimate reason, standing alone, [that] would have induced it to make the same decision. Price Waterhouse, 490 U.S. at Just as the district court erred in ignoring Boyette s threat to get Smith as direct evidence of retaliation, it erred in ignoring this threat as evidence of both causation and pretext under the three-stage burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Boyette s retaliatory threat provides a causal connection between Smith s October 2001 complaint about Boyette s harassment and the termination of Smith s employment. See Thomas v. Corwin, No , 2007 WL , at *10 (8th Cir. Apr. 3, 2007) 15

23 ( [e]vidence giving rise to an inference of retaliatory motive on the part of the employer is sufficient to establish the requisite causal link. ) (citation omitted). Although IP produced evidence that it had legitimate reasons for each of the four disciplinary steps leading to the termination of Smith s employment, a reasonable jury could conclude that these justifications were in fact a pretext, a cover up for retaliation. Carrington, 481 F.3d at 1050 (internal quotation marks and citation omitted). A reasonable jury could readily find that Boyette threatened to retaliate against Smith because he made a lawful complaint about Boyette s harassment and that Boyette then used IP s progressive disciplinary process as a smokescreen to carry out his retaliatory intent. Boyette s threat is unusually strong evidence of retaliatory animus, and it would allow a factfinder to reasonably conclude that Boyette went way beyond legitimate discipline and that he was actually motivated by retaliatory animus. Moore v. City of Philadelphia, 461 F.3d 331, 346 (3d Cir. 2006). The district court erred in granting IP summary judgment under McDonnell Douglas because a reasonable jury could answer the ultimate question... whether [IP s termination of Smith] was motivated by retaliatory intent in favor of Smith. Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1119 (8th Cir. 2006). 16

24 Standard of Review The Court reviews the grant of summary judgment de novo. Griffith v. City of Des Moines, 387 F.3d 733, 734 (8th Cir.2004). Summary judgment is proper only when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue as to any material fact and establishes that the moving party is entitled to a judgment as a matter of law. Hesse v. Avis Rent A Car Sys., Inc., 394 F.3d 624, 629 (8th Cir. 2005). The Court must deny summary judgment where a reasonable jury could find in favor of the non-moving party. Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1120 (8th Cir. 2006). 17

25 Argument Title VII of the Civil Rights Act of 1964 prohibits employers from taking adverse actions against employees in retaliation for employee reports of harassment or discrimination. 1 See Burlington N. & Santa Fe Ry. v. White, 126 S. Ct. 2405, 2410 (2006); Green v. Franklin Nat l Bank of Minneapolis, 459 F.3d 903, (8th Cir. 2006). As this Court has recognized, [a] claim for retaliation is not based upon [prohibited] discrimination, but instead upon an employer's actions taken to punish an employee who makes a claim of discrimination. Haas v. Kelly Servs. Inc., 409 F.3d 1030, 1036 (8th Cir. 2005). To establish a claim of retaliation under Title VII, a plaintiff must demonstrate that 1) he engaged in protected conduct; 2) a reasonable employee 1 The anti-retaliation provision of Title VII of the Civil Rights Act of 1964, Section 704(a) provides: It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment... because he has opposed any practice made an unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title. 42 U.S.C. 2000e-3(a) (2006). Smith's retaliation claim is timely under 42 U.S.C. 2000e-5(e)(1) (2006), which provides that "charges... shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred." IP terminated Smith's employment on January 6, App. 11, 22. He filed an EEOC complaint fortyseven days later, on February 22, Id. at 30. Smith may rely on events that occurred more than 180 days before the termination of his employment as background evidence to support his timely claim. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). 18

26 would have found the challenged action materially adverse; and, 3) the materially adverse action was causally linked to the protected conduct. Carrington v. City of Des Moines, 481 F.3d 1046, 1050 (8th Cir. 2007); see Higgins v. Gonzales, 481 F.3d 578, 589 (8th Cir. 2007) (explaining this restatement of the elements of a Title VII retaliation claim as a response to the Supreme Court s Burlington Northern decision in 2006). A plaintiff may support the elements of a retaliation claim in two ways: by presenting direct evidence of retaliation under the mixed-motives method of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), or by presenting indirect evidence of retaliatory intent under the three-stage, burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, (1973). Luciano v. Monfort, Inc., 259 F.3d 906, (8th Cir. 2001) (direct evidence analysis and indirect evidence analysis of a Title VII retaliation claim); see Twymon v. Wells Fargo & Co., 462 F.3d 925, (8th Cir. 2006) (direct evidence analysis and indirect evidence analysis of a Title VII discrimination claim); Cronquist v. City of Minneapolis, 237 F.3d 920, 924 (8th Cir. 2001) (sex discrimination and retaliation); Kneibert v. Thomson Newspapers, Michigan, Inc., 129 F.3d 444, (8th Cir. 1997) (direct evidence analysis and circumstantial evidence analysis of age discrimination and retaliation claims). This case does not present any issue about the first two elements of Lee Smith s Title VII retaliation claim. Smith s complaint to International Paper (IP) 19

27 Company s Human Resources Managers about Boyette s harassment, is, as the district court implicitly recognized, protected conduct. App Termination of Smith s employment is materially adverse. See Carrington, 481 F.3d at The issues on this appeal go to the third element of Smith s retaliation claim: (1) whether the district court erred in ignoring Boyette s threat to get Smith as direct evidence of retaliation under the mixed-motives method of Price Waterhouse, and (2) whether the district court erred in ignoring this threat as evidence of both causation and pretext under the three-stage burden-shifting framework of McDonnell Douglas. The district court erred in granting summary judgment for IP because it ignored Smith s testimony that his supervisor George Boyette made a retaliatory threat. Boyette threatened to get Smith immediately after Smith acknowledged when confronted by Boyette that he had complained to IP s Human Resource Managers about Boyette s harassment. App. 43. Boyette s threat is direct evidence of retaliation under the mixed-motives method of Price Waterhouse, and IP is not entitled to summary judgment because the employer cannot meet its burden of showing as a matter of law that it would have disciplined and terminated Smith in the absence of Boyette s retaliatory animus. See Carrington, 481 F.3d at Even if the district court were correct in analyzing Smith s retaliation claim under the McDonnell Douglas framework, it erred in granting IP s summary 20

28 judgment motion. Smith s testimony about Boyette s threat creates a genuine issue of material fact... that retaliation was a determinative not merely a motivating factor in IP s decision to terminate Smith s employment. Id. I. Boyette s Threat to Get Smith Is Direct Evidence of Retaliation Under the Mixed-Motives Method of Price Waterhouse Boyette s threat to get Smith for making a complaint to IP s Human Resources Managers shows a retaliatory motive on its face. It is direct evidence of retaliation because Boyette was directly involved in the decisions to discipline and to terminate Smith and his threat may be viewed as directly reflecting [a retaliatory motive] sufficient to permit the factfinder to infer that [retaliation] was more likely than not a motivating factor in the employer s decision. Cronquist, 237 F.3d at 925 (internal quotation marks and citation omitted). The district court erred in ignoring Smith s testimony that Boyette threatened to get him for complaining about Boyette s behavior (App. 43) and, in turn, in failing to address this direct evidence of retaliation under the mixed-motives method of Price Waterhouse. Smith, a pro se plaintiff, raised the mixed-motives method in his response to IP s motion for summary judgment. 2 App. 86 ( The U.S. Supreme Court recently 2 This Court can properly consider Smith s argument that the district court erred in failing to analyze his retaliation claim under the mixed-motives method of Price Waterhouse because he raised it below. Cf. Cronquist v. City of Minneapolis, 237 F.3d 920, (8th Cir. 2001) (addressing direct evidence argument on the 21

29 held that a plaintiff in a mixed motive discrimination case does not have to present direct evidence of discrimination to get a jury. Desert Palace, Inc. v. Costa. No ). Smith did not have to label his case correctly as either a pretext case or a mixed-motives case from the beginning in the District Court, and it is well-settled that the district court had a duty [a]t some point in the proceedings... [to] decide whether a particular case involves mixed motives. Price Waterhouse, 490 U.S. at 247 n.12; see id. at 278 (O Connor, J., concurring) ( Once all the evidence has been received, the court should determine whether the McDonnell Douglas or Price Waterhouse framework properly applies to the evidence before it [and] [i]f the plaintiff has failed to satisfy the Price Waterhouse threshold, the case should be decided under the principles enunciated in McDonnell Douglas.... ); Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 448 (8th Cir. 1993) ( [w]hether a case is a pretext case or a mixed-motives case is a question for the court once all the evidence has been received ); Beshears v. Asbill, 930 F.2d 1348, 1353 (8th Cir. 1991) (same). It is equally well-settled that a district court should apply the McDonnell Douglas burden-shifting framework only merits after stating that it was not properly before the court on appeal because the plaintiff never argued to the District Court that her case was governed by the Price Waterhouse standard, failed to cite either Price Waterhouse or McDonnell Douglas in her opposition to summary judgment, presented no argument in support of any particular legal standard, and failed to raise the mixed-motive theory in her complaint, in her statement of the case, during oral argument on the summary judgment motion, or in any written or oral submission to the District Court. ). 22

30 in the absence of direct evidence of retaliation. See, e.g., Carrington, 481 F.3d at 1050; Thomas v. Corwin, No , 2007 WL , at *10 (8th Cir. Apr. 3, 2007); Thompson v. Bi-State Dev. Agency, 463 F.3d 821, 826 (8th Cir. 2006); Twymon, 462 F.3d at 936. The district court erred in applying McDonnell Douglas to Smith s retaliation claim because Smith s testimony about Boyette s threat satisfies this Court s requirement that the plaintiff at the summary judgment stage must present direct evidence of retaliation. See, e.g., Thomas, 2007 WL at *10 (analyzing Title VII and ADA retaliation claims under McDonnell Douglas because the plaintiff presented no direct evidence of retaliation ); Stallings v. Hussmann Corp., 447 F.3d 1041, 1051 (8th Cir. 2006) (finding that the FMLA plaintiff failed to present direct evidence of retaliation sufficient to avoid McDonnell Douglas analysis). Because Smith produced direct evidence of retaliation, the burden shifts to IP, under the mixed-motives method of Price Waterhouse, to show by a preponderance of evidence that it would have disciplined and terminated Smith even in the absence of this retaliatory motive. See Carrington, 481 F.3d at 1046, 1052; Price Waterhouse, 490 U.S at Although this Court has not yet had any occasion to address the employer s burden on a motion for summary judgment to establish that it would make the same decision in the absence of a retaliatory motive, other courts have held that, if 23

31 the plaintiff establishes direct evidence of an impermissible motive, the employer must show as a matter of law that it would have made the same decision absent a discriminatory or retaliatory purpose. See Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409 (5th Cir. 2003); Stone v. City of Indianapolis Pub. Util. Div., 281 F.3d 640 (7th Cir. 2002). IP cannot make this showing because its evidence of legitimate reasons to discipline and terminate Smith is not enough to disprove that an improper criterion (retaliation) was a factor in these decisions. IP s evidence creates an issue for trial: whether it would have disciplined and terminated Smith even if he had not complained to IP s Human Resource Managers about Boyette. A. Smith Presented Direct Evidence of Retaliation A mixed-motives case arises when an employment decision [is] the product of a mixture of legitimate and illegitimate motives. Radabaugh, 997 F.2d at 448 (quoting Price Waterhouse, 490 U.S. at 247). When a plaintiff presents direct evidence of an illegitimate motive like retaliation, the claim is analyzed under the mixed-motives method of Price Waterhouse. 3 Luciano, The 1991 Amendments to the Civil Rights Act of 1964 superseded Price Waterhouse in part with respect to mixed-motives discrimination claims, but these Amendments did not change the analysis of mixed-motives retaliation claims under Price Waterhouse. See Carrington, 481 F.3d at 1052; Norbeck v. Basic Elec. Power Coop., 215 F.3d 848, 852 (8th Cir. 2000). As this Court has explained, in dual or mixed-motives discrimination claims, [t]he Civil Rights Act of 1991 amended Title VII to permit an award of attorneys fees when an unlawful employment practice is established... even though other factors also motivated the practice, but this amendment does not permit an award of 24

32 F.3d at 909; see Cronquist, 237 F.3d at 925 (sex discrimination and retaliation); Kneibert, 129 F.3d at , 455 n.8 (age discrimination and retaliation). Direct evidence is evidence of conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged [retaliatory] attitude... sufficient to permit the factfinder to infer that that attitude was more likely than not a motivating factor in the employer s decision. Cronquist, 237 F.3d at 925 (internal quotation marks and citations omitted). Direct evidence does not include stray remarks in the work place, statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process. Luciano, 259 F.3d at 909 (citation omitted). If a plaintiff produces direct evidence that an illegitimate criterion... played a motivating part in [the] employment decision... the burden shifts to the employer to demonstrate by the preponderance of the evidence that it would have made the same decision in the absence of the impermissible motive. Carrington, 481 F.3d at 1052 (quoting Cronquist, 237 F.3d at 924 (citing Price Waterhouse, 490 U.S. at 258)) (internal quotation marks omitted). Smith produced direct evidence of retaliation. Boyette was involved in the decision-making process and Boyette s threat to get Smith directly reflects a attorneys fees to plaintiffs in dual motive retaliation cases. Garner v. Mo. Dept. of Mental Health, 439 F.3d 958, 961 (8th Cir. 2006) (quoting 42 U.S.C. 2000e- 2(m)). 25

33 retaliatory attitude sufficient to permit the factfinder to infer that that attitude was more likely tha[n] not a motivating factor in IP s decision. Luciano, 259 F.3d at 909 (citation omitted). Because Smith produced direct evidence of retaliatory motive, IP has to demonstrate by a preponderance of the evidence that it would have reached the same decision about Smith s discipline and termination even in the absence of the illegitimate factor. See Cronquist, 237 F.3d at 924 (citing Price Waterhouse, 290 U.S. at 258). Proof that the same decision would have been justified is not the same as proving that the same decision would have been made absent the impermissible motive, and there is no showing on the summary judgment record that IP had a legitimate reason, standing alone, [that] would have induced it to make the same decision. Price Waterhouse, 490 U.S. at Boyette Was Involved in the Decision-Making Process Boyette was involved in the decisionmaking process. Cronquist, 237 F.3d at 925 (citations omitted). Boyette was Smith s supervisor, and he had extensive supervisory and decision-making authority over Smith. Doc. # 34 at 5 (IP s Statement of Undisputed Material Facts); see App. 89, 94, 108. Boyette, in his capacity as Smith s supervisor, imposed each of the four disciplinary sanctions that led to the termination of Smith s employment. App. 15, 18, 19, In the month following Smith s complaint about Boyette to IP s Human Resources Managers, Boyette invoked the first step of the four-step disciplinary process 26

34 required to terminate Smith. Id. at 15. In the next year, Boyette formally disciplined Smith three more times with the result that Smith s employment was terminated on January 6, Id. at Boyette, in short, was directly involved in the decision-making process. Cf. Kneibert, 129 F.3d at 453 (newspaper editor was not a decisionmaker because he possessed neither supervisory nor decisionmaking authority for the newspaper, and his opinion of the plaintiff s work performance was only one of many factors in the publisher s decision to terminate plaintiff); Luciano, 259 F.3d at 909 (no evidence of retaliation by a decisionmaker ). 2. A Factfinder Could Infer that Retaliation Was More Likely than Not a Motivating Factor in Disciplining and Terminating Smith Boyette s threat to get Smith may be viewed as directly reflecting the alleged [retaliatory] attitude... sufficient to permit the factfinder to infer that that attitude was more likely than not a motivating factor in the employer s decision to discipline and terminate Smith. Cronquist, 237 F.3d at 925 (citations omitted). A reasonable jury could readily find that Boyette retaliated against Smith because he made a lawful complaint about Boyette s harassment and that Boyette then used IP s disciplinary process as a smokescreen to carry out his retaliatory intent. Smith worked at IP for twenty-six months before he complained about Boyette s harassment; he was not subject to any disciplinary action in this twenty- 27

35 six month period. App. 24, 99. After Smith complained about Boyette s harassment at an October 2001 meeting with IP s Human Resource Managers, Boyette confronted Smith. Id. at 43. Boyette asked Smith if he had reported him for harassment. Id. When Smith confirmed that he had made such a report, Boyette threatened: I m going to get you. Id. Boyette then followed through on his threat; he formally disciplined Smith four times with the result that Smith s employment was terminated. Boyette s threat carried out through IP s four-step disciplinary process is direct evidence that retaliation was more likely than not a motivating factor in Smith s termination. Cronquist, 237 F.3d at 925 (citations omitted). This case is one of the rare cases in which there is direct evidence of an employer s allegedly retaliatory intent. Fabela, 329 F.3d at 415. Although an employer usually refrains from expressly stating that an impermissible criterion influenced his decision to expose the plaintiff to an adverse employment action, id., Boyette s threat is an express statement of his intention to use an impermissible criterion (Smith s complaint about Boyette to IP s Human Resources Managers) to get back at Smith. See Kneibert, 129 F.3d at 452 (direct evidence includes employer remarks). Boyette s threat executed through IP s four-step disciplinary process directly reflect[s] [a retaliatory] attitude... sufficient to permit the factfinder to infer that that attitude was more likely than not a motivating factor in 28

36 IP s decision to terminate Smith. Cronquist, 237 F.3d at 925 (citation omitted); see also Fabela, 329 F.3d at 415 ( In a Title VII context, direct evidence includes any statement or document which shows on its face that an improper criterion served as a basis not necessarily the sole basis, but a basis for the adverse employment action. ) (emphasis in original). Smith satisfied this Court s requirement that a former employee must present direct evidence of retaliation: he set forth specific facts showing that Boyette was a decisionmaker and that retaliation was a motivating factor in the termination of his employment. Fed. R. Civ. P. 56(e); see Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir. 1999) (en banc) ( [t]o trigger Price Waterhouse analysis... a plaintiff must.... present, at a minimum, some direct evidence of discriminatory motive. ). This direct evidence of retaliation is sufficient to avoid the McDonnell Douglas framework and to shift the burden to IP under Price Waterhouse to prove as a matter of law that it would have arrived at the same decision to discipline and terminate Smith in the absence of the improper retaliatory motive. 4 4 In analyzing Title VII discrimination cases under the Price Waterhouse mixedmotives method, this Court has frequently stated that a plaintiff can survive an employer s motion for summary judgment by producing direct evidence of discrimination and implicitly suggested that an employer s reasons for an employment decision should not be addressed at the summary judgment stage. Arraleh v. County of Ramsey, 461 F.3d 967, 974 (8th Cir. 2006), cert. denied, 2007 WL (April 23, 2007); Russell v. City of Kansas City, Missouri, 414 F.3d 29

37 B. IP Cannot Meet Its Burden of Showing It Would Have Terminated Smith in the Absence of a Retaliatory Motive This Court has not yet had any occasion to address the employer s burden on a motion for summary judgment to establish that it would make same decision in absence of a retaliatory motive because there are apparently no cases finding that a plaintiff has established direct evidence of retaliation. 5 Nonetheless, application of traditional summary judgment principles as illustrated by a recent decision of the Fifth Circuit, Fabela 329 F.3d at demonstrates that IP is not entitled to summary judgment. 863, 866 (8th Cir. 2005); Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004); see Kneibert, 129 F.3d at 453 (holding that direct evidence of age discrimination defeats an employer s summary judgment motion and creates a genuine issue for trial); see also Gagnon v. Sprint Corp., 284 F.3d 839, (8th Cir. 2002) (reversing order granting judgment as a matter of law and holding that there was sufficient direct evidence of discrimination to go to a jury for a determination about the employer s reason for an employment decision). This Court, however, has held that, on motions for summary judgment, Title VII retaliation claims should not be analyzed under the same test as Title VII discrimination claims, see Carrington, 481 F.3d at 1052; Norbeck, 215 F.3d at The practice in other circuits, see infra pages 30 to 33, is to address the employer s reasons in determining whether the employer is entitled to summary judgment. 5 In one unpublished per curiam opinion, this Court held that that even if the plaintiff had presented direct evidence of retaliation, the employer would have made the same decision regardless of any desire to retaliate. See Nyameke v. Curators of Univ. of Missouri-Rolla, 221 F.3d 1343 (Table), 2000 WL , at *2 (8th Cir. 2000). The Court, however, did not elaborate the employer s burden on a motion for summary judgment to establish that it would have made the same decision in the absence of a retaliatory motive. See id. 30