                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-1980
                                   ___________

Tsegaye Takele,                         *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
The Mayo Clinic,                        *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: May 13, 2009
                                Filed: August 17, 2009 (corrected August 24, 2009)
                                 ___________

Before LOKEN, Chief Judge, BYE, Circuit Judge, and MILLER, District Judge.1
                              ___________

MILLER, District Judge.

       Tsegaye Takele, a black male and citizen of Ethiopia, sued his employer, the
Mayo Clinic (“Mayo”), for discrimination on the basis of race and national origin in
violation of Title VII, 42 U.S.C. § 2000e, and 42 U.S.C. § 1981, retaliation, and
defamation. The district court2 granted summary judgment in favor of Mayo on all


      1
        The Honorable Brian Stacy Miller, United States District Judge for the Eastern
District of Arkansas, sitting by designation.
      2
      The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota.
claims. Takele appeals the court’s grant of summary judgment on the discrimination
and retaliation claims. We affirm.

                                           I.

        In November 2002, Takele, who has his Ph.D. in physics, applied for admission
to the Medical Physics Residency Program (“Residency Program”) at Mayo. The
application identified him as a black male and citizen of Ethiopia. After his interview,
Edwin McCollough, Ph.D., Michael Herman, Ph.D., Robert Kline, Ph.D., and Jon
Kruse, Ph.D., decided to admit Takele into the Residency Program. The admission
letter, dated April 16, 2002, stated, “Continuation and completion of the program are
dependent upon satisfactory progress in education, performance of all duties, and
compliance with Mayo Graduate School of Medicine policies.” Mayo policy stated
that “[a] grade of ‘C’ or lower results in immediate evaluation of a resident’s
progress,” and “[c]ontinued unsatisfactory performance will likely result in probation
and/or termination.”

        On July 2, 2003, Takele began his first rotation in Dosimetric Systems, one of
eight separate major rotations to be completed in the course of the two-year Residency
Program. The meeting minutes of the Medical Physics Executive Committee (the
“Executive Committee”) and rotation reviews from September and October 2003
demonstrate that Takele had difficulty understanding basic concepts. Indeed, he
earned a “C” in the first quarter of his residency, which was reported on December 9,
2003. On January 20, 2004, Takele earned a “B” for the second quarter, as he had
“demonstrated real improvement in effort and understanding.” The Executive
Committee minutes of February 18, 2004, as well as the evaluations performed by
various dosimetrists throughout March 2004, show that Takele was having
comprehension problems.




                                          -2-
      Takele was placed on probation by Drs. Herman, Kline, Kruse, and Brinkmann
on May 3, 2004, after earning his second “C.” The probation letter states that nine
months into the two-year Residency Program, Takele’s “first rotation is not fully
signed off.” Takele, however, disputes this statement. Although Takele received
some favorable performance evaluations from May through July 2004, serious
performance deficiencies are documented.

        In June 2004, Takele requested a meeting with an ombudsperson. The
ombudsperson’s notes, dated June 18, 2004, state that Takele felt he was treated
“differently.” The notes also document that Takele was concerned that “another guy
left the program that was international.” It is also noted, however, that Takele was not
sure why the individual left the program. The notes further indicate that although
Takele did not state that “he felt discriminated against in any specific way,” he did
state that he felt “personally discriminated against.” Another set of notes, dated
August 3, 2004, labeled “PM Call,” provide that Takele stated, “I don’t know if it’s
racial or what.”

        On August 3, 2004, Drs. Herman, Kline, Kruse, and Brinkmann unanimously
recommended that Takele be terminated or given the option to resign from the
Residency Program. In support of this recommendation, they stated that Takele was
unable to work independently and would “be a hazard to human life if he stay[ed] in
this field.” Takele appealed to the Dean, Roger L. Nelson, who appointed an appeal
review committee. Takele testified before the review committee that the true reasons
for expulsion were his superior physics and mathematics background and the faculty’s
embarrassment at being unable to answer his questions. The appeal review committee
unanimously voted to deny the appeal.

      Takele filed his original complaint on April 21, 2006, an amended complaint
on May 22, 2006, and a second amended complaint on November 13, 2006, alleging
discrimination on the basis of race and national origin in violation of Title VII and 42

                                          -3-
U.S.C. § 1981, retaliation, and defamation. Mayo moved for summary judgment, and
the district court granted the motion. The court found that Takele presented no direct
evidence of discrimination and failed to establish his prima facie case of
discrimination because he did not establish that he was qualified to continue in
Mayo’s Residency Program, and he failed to demonstrate that Christopher Hagness,
a white male in the Residency Program, was similarly situated. The district court also
found that Mayo offered a legitimate, non-discriminatory reason, specifically Takele’s
performance deficiencies and the faculty’s concerns for patient safety, for its actions,
and Takele failed to show pretext. As to Takele’s retaliation claim, the district court
found that Takele failed to establish a prima facie case because there was no evidence
that his dismissal was connected to his complaint to the ombudsperson, and even if
he had established a prima facie case, he provided no evidence that Mayo’s reasons
for dismissing him were pretext for retaliation. Finally, the district court dismissed
Takele’s defamation claim because he could not demonstrate that the allegedly
defamatory statements were objectively false statements of fact. Takele appeals the
district court’s grant of summary judgment on his discrimination and retaliation
claims.

                                          II.

       “Summary judgment is appropriate when there are no genuine issues of material
fact, and the moving party is entitled to judgment as a matter of law.” Bearden v. Int’l
Paper Co., 529 F.3d 828, 831 (8th Cir. 2008). “We review the district court’s grant
of summary judgment de novo and view the evidence in the light most favorable to
the nonmoving party.” Id. We apply the same analysis to claims of discrimination
and retaliation under Title VII and 42 U.S.C. § 1981. Fields v. Shelter Mut. Ins. Co.,
520 F.3d 859, 864 n.3 (8th Cir. 2008); Kim v. Nash Finch Co., 123 F.3d 1046, 1060
(8th Cir. 1997).




                                          -4-
                                           III.

       The district court’s order granting summary judgment as to Takele’s
discrimination claims, based on race and national origin, is affirmed. The district
court was correct in determining that Takele failed to show direct evidence of
discrimination. “An employee may establish unlawful employment discrimination
through direct or indirect evidence.” Bearden v. Int’l Paper Co., 529 F.3d at 831.
Takele argues that an e-mail dated August 11, 2004, sent by a Mayo staff member to
members of the faculty is direct evidence of discrimination. The e-mail set forth the
status of Takele’s visa in relation to the appeal process, as well as the possibility that
Takele would raise the issue of discrimination. The court agrees with the district
court’s assessment that the e-mail does not constitute direct evidence of
discrimination. As noted by the district court, although the e-mail mentions Takele’s
immigration status, it does not reflect a discriminatory attitude, was not sent by a
decision-maker, and was sent after the initial decision to dismiss Takele.

       Because there is no direct evidence of discrimination, we apply the framework
provided by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973). To make a prima facie Title VII discrimination case, Takele
must show that he (1) is within the protected class, (2) was qualified to perform the
job, (3) suffered an adverse employment action, and (4) has facts that give rise to an
inference of discrimination. McGinnis v. Union Pac. R.R., 496 F.3d 868, 874 (8th
Cir. 2007). If Takele can establish a prima facie case, the burden of production shifts
to Mayo to articulate a legitimate, non-discriminatory reason for its action. Qamhiyah
v. Iowa State Univ. of Sci. and Tech., 566 F.3d 733, 745 (8th Cir. 2009). If Mayo
makes such a showing, Takele must then demonstrate by a preponderance of the
evidence that the stated non-discriminatory rationale was a mere pretext for
discrimination. Id.




                                           -5-
       We agree with the district court’s conclusion that Takele failed to establish the
fourth prong of the prima facie case. A plaintiff may establish the fourth prong by
producing facts that similarly situated employees, not in the protected class, were
treated differently. Wheeler v. Aventis Pharm., 360 F.3d 853, 857 (8th Cir. 2004).
Takele argues that he was similarly situated to Dr. Christopher Hagness, a white male
in the Residency Program, but was treated less favorably. The grade reports of Dr.
Hagness, however, demonstrate that he was successfully progressing through the
program; that he never received below a “B”; and that any faculty concerns were not
related to basic fundamentals, were far less severe than the concerns with Takele, and
were resolved over time. Additionally, Takele admits that he had no knowledge about
the schedule, faculty interaction, or training of Dr. Hagness. The court agrees with the
district court’s finding that Takele failed to establish that Dr. Hagness was similarly
situated. No reasonable jury could find that the two men were similarly situated in all
relevant respects. Jones v. Frank, 973 F.2d 673, 677 (8th Cir. 1992).

       Moreover, the district court would be affirmed even if Takele could establish
his prima facie case, because Mayo has articulated a legitimate, non-discriminatory
reason for terminating Takele from the Residency Program, and Takele failed to point
to any evidence supporting a finding of pretext. As noted by the district court, three
of the four people who made the decision to admit Takele into the Residency Program
made the decision to terminate him. See Calvin v. Yellow Freight Sys., Inc., 218 F.3d
904, 906-07 (8th Cir. 2000) (“The courts have held that it is unlikely that a person
would hire a minority and then . . . decide to fire that same person based on [] the
minority status.”).

       Takele argues that there were discriminatory attitudes toward him and, as proof,
points to Drs. Herman and Kline comparing his successful completion of a treatment
plan to a thousand monkeys getting together to write the Bible. He also states that on
a number of occasions, laughing and joking between Drs. Herman, Kruse, and
Hagness would abruptly stop when he approached. He further states that, on one

                                          -6-
occasion, he heard reference being made to foreigners and someone Ethiopian. These
statements, however, do not demonstrate pretext or create a reasonable inference of
discrimination, as the comments do not suggest discriminatory animus without
resorting to speculation.

       Further, during the appeals process, Takele never asserted that Mayo
discriminated against him on the basis of race or national origin. Rather, he stated that
“[t]he true reason they want to expel me from the program is because I am well
prepared to the field, ambitious, hard working (on the average 12 to 16 hours a day),
equipped with superior physics and mathematics back ground (much better than any
one of them), and unable to properly answer some of my questions (which they
perceived as an embarrassment and a challenge) – I strongly believe this is the ulterior
motive behind all this circus.” Takele’s Equal Employment Opportunity Commission
submission echoes this sentiment.

                                          IV.

       The district court’s order granting summary judgment as to Takele’s retaliation
claim is affirmed. To make out a prima facie retaliation case, Takele must show that
he: (1) engaged in protected activity; (2) suffered an adverse employment action; and
(3) a causal connection between the protected activity and the adverse employment
action. Box v. Principi, 442 F.3d 692, 696 (8th Cir. 2006). If Mayo articulates a
legitimate, non-retaliatory reason for the termination, Takele must show pretext.
Macias Soto v. Core-Mark Int’l, Inc., 521 F.3d 837, 841 (8th Cir. 2008).

       Takele argues that he was terminated because he complained of discrimination
to the ombudsperson. Even if Takele complained of discrimination to the
ombudsperson prior to his termination, which has not been shown, Takele failed to
establish a causal connection between his complaint and his termination. The record
demonstrates that Mayo’s concerns with Takele’s performance began long before

                                          -7-
Takele met with the ombudsperson, and that he had been on probation for
approximately one month before the meeting. The record also demonstrates that only
Dr. Herman was aware that Takele was meeting with the ombudsperson, but that he
had no reason to suspect that Takele had complained of discrimination. Furthermore,
as discussed above, Mayo articulated a legitimate, non-retaliatory reason for the
termination, and Takele failed to establish pretext.

      The judgment of the district court is affirmed.
                     ______________________________




                                        -8-
