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Roeben v. BG Excelsior L.P.: EMPLOYMENT - no showing of pretext for age discrimination; insufficent evidence to infer discrimination

United States Court of Appeals
No. 08-1260
Richard Roeben, *
Plaintiff/Appellant, *
v. **
BG Excelsior Limited Partnership, *
doing business as Peabody Little Rock, *
Defendant/Appellee. *
______________________ Appeal from the United States
District Court for the
BG Excelsior Limited Partnership, * Eastern District of Arkansas.
Counter Claimant/ *
Appellee, *
v. **
Richard Roeben, *
Counter Defendant/ *
Appellant. *
Richard Roeben, *
Third Party Plaintiff/ *
Appellant, **
v. *
1The Honorable J. Leon Holmes, Chief Judge, United States District Court for
the Eastern District of Arkansas.
Tim Sneed, Kerry Snellgrove, *
Third Party Defendants/ *
Appellees. *
Submitted: September 22, 2008
Filed: November 6, 2008
Before LOKEN, Chief Judge, WOLLMAN, and SMITH, Circuit Judges.
WOLLMAN, Circuit Judge.
Richard Roeben filed suit against his former employer, BG Excelsior Limited
Partnership d/b/a The Peabody Little Rock (Peabody), for age discrimination under
the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621-34. The
district court1 granted the Peabodys motion for summary judgment, and Roeben
appeals. Because the evidence does not support an inference that the Peabody
terminated Roeben as a result of his age, we affirm.
In March 2002, the Peabody Hotel in Little Rock, Arkansas, hired Roeben as
its director of purchasing. Roeben was sixty-seven years old at the time. The position
required Roeben to negotiate with vendors for a variety of hotel suppliesincluding
bed linens, bathroom amenities, food and beverage items, cleaning materials, and
other equipment needed for the daily operation of the Peabody. Roeben also handled
incoming shipments and accessed an off-site warehouse where inventory was stored.
The parties agree that Roeben performed his job well for several years.
On January 12, 2006, a Peabody secretary received a phone call from a woman
who identified herself as Brenda Tutor. Tutor explained that she was affiliated with
AKB Property Preservation and stated that the company had removed property from
Roebens residence after he was evicted from his home. According to Tutor, her
company had come across items that appeared to be Peabody property.
John Curry, the Peabodys director of security, later contacted the owner of
AKB Property Preservation, Norma Wilcox, who told Curry that her company had
discovered numerous unopened boxes of commercially packed washcloths and towels;
several vacuum packed steaks; assorted toiletries and cleaning chemicals; and a large
number of Peabody rubber ducks. Wilcox also informed Curry that the nonperishable
property had been moved to a storage facility, and she agreed to give Curry
access to the facility so that he could conduct his own inspection.
On January 15, 2006, Curry and another Peabody employee traveled to the
storage facility and examined the readily accessible property. Curry drafted a report
summarizing the investigation:
Upon looking over the items we found 6 bottles of hotel logo bathroom
amenities and numerous [washcloths] and hand towels that are the same
brand and had the same appearance as that being used by the hotel and
one vacuum cleaner which is the same brand used by the hotel. We ask
[sic] Ms. Wilcox what other items would be easily seen that would have
Peabody logos on them, to which she advised that somewhere in one of
the storage sheds was a bag of Peabody yellow ducks, a couple of cases
of Peabody logo bathroom amenities and numerous bath mats, towels
and [washcloths] . . . . Ms. Wilcox went on to state that she threw
numerous vacuum packed steaks away and other items with the Peabody
logo on them due to they were perishables and cannot be stored in a
storage shed according to law.
Curry presented his report to the general manager, Gregg Herning, and the human
resources director, Allan McCaslin. With the support of McCaslin and Roebens
direct supervisor, Terry Ozanich, Herning decided to terminate Roebens employment.
McCaslin met with Roeben on January 17, 2006, and informed him that he was
being terminated for unauthorized possession of hotel property. McCaslin explained
the sequence of events that led to the decision. Roeben vehemently denied that he had
stolen anything from the hotel. He did admit, however, that he had received samples
of some itemssuch as toiletries and steaksfrom vendors without reporting the
gifts, as was required under Peabody policy.
On November 13, 2006, Roeben filed an age discrimination lawsuit in Arkansas
state court, which the Peabody removed to federal court. The Peabody counterclaimed
for conversion, and Roeben amended his complaint to add claims of defamation
against several Peabody employees. The district court granted summary judgment to
the Peabody on Roebens age discrimination claim and dismissed the remaining state
law claims without prejudice.
A district courts grant of summary judgment is reviewed de novo. Zhuang v.
Datacard Corp., 414 F.3d 849, 854 (8th Cir. 2005). Summary judgment is proper
when, viewing the record in the light most favorable to the non-moving party, there
is no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law. Id. To survive summary judgment, a plaintiff must substantiate his
allegations with enough probative evidence to support a finding in his favor. See
Haas v. Kelly Services, Inc., 409 F.3d 1030, 1034 (8th Cir. 2005).
Under the familiar ADEA burden-shifting framework, a plaintiff can establish
a prima facie case of age discrimination if he can show that (1) he was at least forty
years old; (2) he was terminated; (3) he was meeting his employers reasonable
expectations at the time of his termination; and (4) he was replaced by someone
substantially younger. See Mayer v. Nextel West Corp., 318 F.3d 803, 806-07 (8th
Cir. 2003) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)).
Once a plaintiff has established a prima facie case, the burden shifts to his employer
to provide a legitimate, nondiscriminatory reason for the termination. Id. at 807. If
the employer provides a sufficient justification, the burden returns to the plaintiff to
prove that the employers proffered reason was a pretext and that the true motivation
was discriminatory animus. Id. at 807-08.
For the purpose of summary judgment, the Peabody concedes that Roeben can
establish all of the elements of a prima facie case. The Peabody maintains, however,
that Roeben was terminated because the Peabody believed that he had unauthorized
possession of hotel property. The undisputed evidence supports the sincerity of that
belief, and Roeben has not established any question of material fact regarding the
sequence of events that led to his termination.
Roeben presents no evidence to dispute that the hotel received a phone call
raising suspicion about his possession of Peabody property. Nor does he dispute that
the Peabody conducted an investigation that culminated in the report drafted by John
Curry. Instead, Roeben attacks the sufficiency of the investigation, arguing that the
Peabodys proffered reason for his termination was a pretext because the Peabody
failed to provide conclusive evidence that he stole hotel property. This assertion is
insufficient. Even if Roeben could show that the Peabodys investigation was poorly
conducted or that its decision was impetuous, that alone would not allow him to
survive summary judgment. See Hanebrink v. Brown Shoe Co., 110 F.3d 644, 646
(8th Cir. 1997) ([W]e emphasize that employers are free to make their own business
decisions, even inefficient ones, so long as they do not discriminate unlawfully.).
2Roebens argument is further belied by the fact that Ozanich participated in the
decision to hire Roeben in 2002, when Roeben was sixty-seven years old.
3The record reflects that a number of younger employees were also terminated
for such relatively minor offenses (absenteeism, tardiness, straying from the work
area, etc.) during Roebens tenure at the Peabody.
Assuming, arguendo, that Roeben could raise doubts about the sincerity of the
Peabodys belief regarding his unauthorized possession of hotel property, his claim
would still fail because of the paucity of evidence supporting an inference of age
discrimination. [T]he showing of pretext necessary to survive summary judgment
requires more than merely discrediting an employers asserted reasoning for
terminating an employee. Johnson v. AT&T Corp., 422 F.3d 756, 763 (8th Cir.
2005). A plaintiff must also demonstrate that the circumstances permit a reasonable
inference of discriminatory animus. Id. Roeben bases his claim of age
discrimination on two arguments. First, he asserts that Ozanich, his supervisor, told
him on two occasions that he was too old to lift boxes. Second, he contends that the
Peabody had a pattern of discriminating against older employees.
The comments by Ozanich are simply insufficient to establish a fair inference
of age-related animus. Moreover, as Roeben acknowledges, the ultimate decision
maker was the hotel general manager, not Ozanich.2 Roebens contention that the
Peabody had a pattern of age discrimination is similarly lacking in support. The
record reveals that the Peabody fired two younger employees at roughly the same time
for similar offenses: a twenty-three-year-old valet was terminated for validating his
own parking, and a twenty-year-old associate in housekeeping was discharged for
taking two beers from the hotel bar. Faced with this unfavorable evidence, Roeben
asks us to compare misconduct that is significantly different in kind and degree.
Roeben claims, for example, that the Peabody discriminated against him because it
failed to terminate employees who slept on the job, left their work area, or watched
television on company time.3 But these infractions did not involve serious breaches
of trust; and as the Peabody notes, the nature of Roebens responsibilities required a
special emphasis on probity and discretion. The comparisons are therefore unavailing,
and the district court thus properly granted summary judgment to the Peabody.
After the district court granted summary judgment, it dismissed Roebens
remaining state law claims without prejudice. Roeben argues that the district court
should have remanded his claims to state court. A district court has discretion to
remand or dismiss a plaintiffs state law claims when the federal character of a case
has been eliminated. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350-51
(1988); Johnson v. City of Shorewood, 360 F.3d 810, 819 (8th Cir. 2004). The district
court did not abuse its discretion when it dismissed without prejudice Roebens
remaining claims.
The judgment is affirmed.


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