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EMPLOYMENT LAW: Plaintiff failed to make prima facie case of gender discrimination

1 The Honorable Ronald E. Longstaff, United States District Judge for the
Western District of Iowa.
United States Court of Appeals
No. 06-2812
Victoria Shaffer, **
Plaintiff-Appellant, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
John E. Potter, Postmaster *
General of the United States, *
Defendant-Appellee. *
Submitted: April 9, 2007
Filed: August 22, 2007
Before MURPHY, BRIGHT, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
Victoria L. Shaffer sued John E. Potter, Postmaster General of the United
States, for gender discrimination in violation of 42 U.S.C. 2000e-16. The district
court1 granted summary judgment to the Postmaster General. Shaffer appeals.
Having jurisdiction under 28 U.S.C. 1291, this court affirms.
2 Both briefs identify the it as Burnhams cancelling their vacation together.
Shaffer was a letter carrier for the United States Postal Service. In the summer
of 1999, she and Keith E. Burnham, another letter carrier, began a romantic
relationship. On March 4, 2000, Shaffer complained to Postal Inspector Troy Raper,
reporting that Burnhams wife and son were in the employee parking lot, which had
a No Trespassing sign. Once Raper learned of the romantic relationship, he did not
investigate further, treating the incident as a private matter. He did tell Shaffer if she
chose to have an affair with Keith Burnham and that upset Keith Burnhams wife,
allowing her personal problems to come into the workplace, could potentially have an
impact on her job in the future and she needed to stop that. Raper did not talk with
Burnham about the incident.
On June 29, 2001 over a year later Burnham called the Postal Inspection
Service while on his route, reporting that Shaffer had threatened him. He stated:
After a 1 year relationship things got ugly today on my
route. Vicky [Shaffer] parked behind my truck at 4th and
Clark. When I got out of my truck and turned around, she
grabbed my shirt, kissed me, and said, why did you do
it?[2] I replied, I dont know. She said, I dont
understand. I said, I dont either, and turned around and
walked away. She got in her car and left. A few minutes
later she pulled up to the curb, rolled down the window and
said, Next time Ill put a bullet in your head. She left and
shortly after left a message on my voice mail. She said, If
I ever stop crying long enough to come back, you better run
like a mother f _ _ _ er! I then called the inspectors.
Inspector Raper responded to the call, came to the scene, and interviewed Burnham.
Other than responding and interviewing Burnham, Raper did not further investigate
the scene or search for a gun.
3 A month later, Raper learned the partial re-recording had been deleted; by then
Burnham had deleted the original message.
Burnham wrote and signed a statement that day. Raper and another inspector,
listened to the voicemail message, transcribed it, and concluded it confirmed
Burnhams recitation. Raper tried to re-record the message onto his office telephone,
but copied only part of it.3
The next day, Raper interviewed Shaffer. She denied threatening Burnham.
She said that after confronting him, she told him never to see her again. She then
called and according to her, left this message: I cant stop crying, why do you always
run away mother f _ _ _ er.
After consulting with a county attorney, Raper swore out a criminal complaint,
obtained a court warrant, and arrested Shaffer on June 30. On July 2, Shaffer was
placed on unpaid leave pending an investigation. Shaffers supervisor interviewed
Burnham and her, and reviewed Rapers reports as well as reports and statements
given to the union. The supervisor determined that Burnham was more credible. On
August 1, the supervisor terminated Shaffer for improper conduct. The termination
was upheld after a union-invoked arbitration. (After the decision to terminate Shaffer
and after arraignment, the criminal charges were dropped at Burnhams request.)
Shaffer filed a complaint with the EEOC alleging that her arrest, suspension,
and discharge were unlawful employment discrimination. The administrative law
judge found no unlawful discrimination. Shaffer appeals the district courts summary
judgment, claiming that Rapers statements and conduct during the investigation are
evidence of illegal employment discrimination, resulting in the suspension and
This court reviews a grant of summary judgment de novo, and affirms if the
evidence viewed in the light most favorable to the non-moving party demonstrates no
genuine issue of material fact, and the moving party is entitled to judgment as a matter
of law. Baucom v. Holiday Cos., Inc. 428 F.3d 764, 766 (8th Cir. 2005). To avoid
summary judgment, Shaffer must make a showing sufficient to establish the
existence of an element essential to her case, on which she bears the burden of proof
at trial. Id. In this case, she must present evidence sufficient for a reasonable fact
finder to infer that the employers decision was motivated by discriminatory animus.
Fair v. Norris, 480 F.3d 865, 869 (8th Cir. 2007). Shaffer may establish unlawful
employment discrimination by either direct or indirect evidence. See Kratzer v.
Rockwell Collins, Inc., 398 F.3d 1040, 1045 (8th Cir. 2005).
Shaffer contends the district court erred in granting summary judgment because
she presented direct evidence of discrimination. Direct evidence is evidence that
establishes a specific link between the [alleged] discriminatory animus and the
challenged decision, sufficient to support a finding by a reasonable fact finder that an
illegitimate criterion actually motivated the employment decision. Schierhoff v.
GlaxoSmithKline Consumer Healthcare, L.P., 444 F.3d 961, 965 (8th Cir. 2006),
quoting Thomas v. First Natl Bank of Wynne, 111 F.3d 64, 66 (8th Cir. 1997);
Tymon v. Wells Fargo & Co., 462 F.3d 925, 933 (8th Cir 2006). Direct evidence
includes evidence of conduct or statements by persons involved in the
decisionmaking process that may be viewed as directly reflecting the alleged
discriminatory attitude, where it is sufficient to support an inference that
discriminatory attitude more likely than not was a motivating factor. Id. at 966.
As direct evidence, Shaffer points to: (1) Rapers initial statement to her that
work-related incidents stemming from an affair could impact her employment, (2)
Rapers comments during the investigation: If you hadnt been fooling around with
a married man none of this would have happened and You know Vicky, if you had
just stayed away from Keith none of this would have happened, (3) Rapers conduct
in investigating and obtaining an arrest warrant despite Burnhams desire not to
prosecute, and (4) Rapers failure to successfully record and retain the voice message.
According to Shaffer, Rapers acts prove he had no intention of enforcing the law
when arresting her. Shaffer believes that the evidence demonstrates Rapers intent to
punish her for being a woman involved with a married man.
Viewed favorably to Shaffer, the evidence is not sufficient to support a finding
that gender discrimination was a motivating factor in her arrest. See Griffith v. City
of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004). It was Shaffer who initiated the
contact with Raper by reporting Burnhams family in the parking lot. It was
Burnham, not Raper, who reported the death threat initiating the investigation.
Although Shaffer disputes that Raper had probable cause to obtain an arrest warrant,
the county attorney advised Raper he had probable cause, and a magistrate judge
signed the warrant. Assuming that the arrest could be an adverse employment action,
and also that a postal inspector could be a decisionmaker as to an arrest, the
prosecutors opinion and the judges approval break a specific link between Rapers
actions and the arrest.
As for the suspension and termination, it is undisputed that the supervisor, not
Raper, suspended and terminated Shaffer. Direct evidence does not include
statements by Raper, a nondecisionmaker. See id. Beyond alleging that her
suspension and termination were discriminatory because her supervisor did not
personally interview Raper, Shaffer presents no evidence that her supervisor was
motivated by gender bias. Skeletal allegations unsupported with specific facts or
evidence, are insufficient to create a genuine issue of fact so as to preclude summary
judgment. Thomas v. Corwin, 483 F.3d 516, 530 (8th Cir. 2007). Although Shaffer
disputes her supervisors conclusion, she cites no specific facts or evidence that show
the supervisor terminated her for any reason other than threatening to kill a coworker.
As Shaffer lacks evidence that clearly points to the presence of an illegal motive,
the district court did not err in finding that Shaffer failed to produce direct evidence
of gender discrimination. See Griffith, 387 F.3d at 736.
As for indirect evidence, Shaffer may establish a prima face case of
discrimination under the burden-shifting framework of McDonnel Douglas Corp. v.
Green, 411 U.S. 792 (1973). Shaffer must show (1) she was a member of a protected
class, (2) she was qualified for her job, (3) she suffered an adverse employment action,
and (4) there are facts that give rise to an inference of gender discrimination. Holland
v. Sams Club, 487 F.3d 641, 644-45 (8th Cir. 2007); Rodgers v. U.S. Bank, 417 F.3d
845, 850 (8th Cir. 2005). The district court found viewing the evidence most
favorably to Shaffer, and even labeling the arrest as a triggering factor in the decision
to terminate Shaffer was unable to show that her arrest or termination occurred
under circumstances that allow the court to infer unlawful discrimination.
Shaffer reiterates, as indirect evidence, Rapers statements and comments, and
his conduct of the investigation and failure to maintain the voicemail message. The
district court found that Rapers initial statement was a warning not to bring her
personal problems into the workplace, and did not evidence illegal discrimination.
Shaffer argues that the district court erred in not considering this statement in context
with Rapers failure to confront Burnham about the affair or to investigate the
trespass. Shaffers repeated assertion that Raper threatened her job at the No
Trespassing interview in March 2000 is unreasonable given that Raper did nothing
against her until Burnham called her in June 2001. The district court found that the
evidence did not establish a discriminatory motive. This court agrees.
Shaffer also asserts that Raper lied to get the arrest warrant because he did not
have a complete copy of the voicemail message and knew that Burnham did not want
Shaffer arrested. Although Burnham equivocated on pursuing the case, he initiated
the investigation by contacting the Postal Inspection Service and filing a statement
against Shaffer. The record is devoid of evidence that Raper failed to successfully
4 Shaffers supervisor who is not Burnhams supervisor consistently spells
his name Burham.
record the message or further investigate in order to punish Shaffer because she was
female. The district court did not err in rejecting unreasonable inferences that would
require speculation. Tymon, 462 F.3d at 934.
Shaffer presents no evidence that the supervisor illegally suspended or
terminated her. Shaffers supervisor interviewed both Shaffer and Burnham. The
supervisor found Burnham more credible. The supervisor concluded that Shaffers
suspension/dismissal was due to the fact that Ms. Shaffer had made threat agains[t]
Mr. Burham and had Mr. Burham made the same threat he would have been the one
getting dismissed.4 Shaffer presents no evidence showing a discriminatory intent by
her supervisor.
Shaffers touchstone allegation is that she was treated differently than a
similarly situated male, Burnham. One way to meet the fourth element of the prima
facie burden, is to show that Shaffer and a similarly situated male were involved in
or accused of the same or similar conduct and were disciplined in different ways.
See Turner v. Gonzales, 421 F.3d 688, 695 (8th Cir. 2005). Shaffer claims that after
her termination, Burnham called and left repeated messages on her voicemail, but was
not terminated. However, Shaffer never alleges that these messages were threatening,
let alone life-threatening. Shaffer fails to present evidence of a similarly situated male
who was not terminated for threatening to kill a co-worker. See Clark v. Runyon,
218 F.3d 915, 918 (8th Cir. 2000).
The judgment of the district court is affirmed.


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