                   United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 03-1812
                                 ___________

Otha Wheeler                          *
                                      *
            Appellant,                *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * Western District of Missouri.
Aventis Pharmaceuticals,              *
                                      *
            Appellee.                 *
                                 ___________

                            Submitted: November 19, 2003

                                Filed: March 15, 2004
                                 ___________

Before MELLOY, RICHARD S. ARNOLD, and SMITH, Circuit Judges.
                           ___________

SMITH, Circuit Judge.

      Otha Wheeler, a former employee of Aventis Pharmaceuticals ("Aventis"), was
terminated by the company. Wheeler sued the company claiming that she had been
discriminated against because of her gender and race. Aventis responded that
Wheeler's violations of company policy justified the termination and moved for
summary judgment. The district court1 granted Aventis's summary-judgment motion2
and dismissed Wheeler's claims. Wheeler appeals the denial of her race-
discrimination claim. We affirm.

                                       I. Facts
       Wheeler worked for Aventis for approximately thirteen years. During the
course of her employment, she had two notable adverse dealings with one of her co-
workers, Linda Driver. First, during a peer-review session,3 Wheeler made
unfavorable comments about Driver's job performance. Wheeler also stated–to
Driver–that Driver was not well liked by fellow employees. According to Wheeler,
in retaliation for these statements, Driver threatened to report to management that
Wheeler frequently grabbed male co-workers' genitalia.

       Subsequently, Driver lodged a complaint with Wheeler's supervisor, Peggy
Lewis, that Wheeler–on various occasions–grabbed the crotch area of her male co-
workers. Peggy Lewis met with an Aventis human-resources specialist, John Lewis
(no relation), about Driver's allegation of inappropriate touching. John Lewis
instructed Peggy Lewis to immediately begin conducting an investigation. John Lewis
also instructed Peggy Lewis to interview only those people directly involved with
Driver's allegations.4 Peggy Lewis interviewed approximately ten employees who

      1
        The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
      2
        Based on these same facts, Wheeler also claimed that Aventis discriminated
against her based on her gender. This claim was also dismissed by the district court
on Aventis's motion for summary judgment. Wheeler does not appeal this claim.
      3
        In peer-review sessions, two to four co-workers critique the performance of
a fellow co-worker to assist in employee evaluation.
      4
       Driver's complaint was the first report to management of any employees
engaging in similar behavior.

                                        -2-
reportedly witnessed–or experienced–Wheeler's alleged grabbing. Peggy Lewis also
interviewed employees whose names were given to her by previously-interviewed
employees during the course of the investigation. However, Peggy Lewis did not re-
interview Driver after her initial complaint about Wheeler's behavior.

      During the investigation, several male employees disclosed to Peggy Lewis that
Wheeler had fondled them while they were working. Several of the men noted that
they made concerted efforts to avoid Wheeler in order to protect themselves from the
unwanted touching. Several other interviewees revealed that they witnessed Wheeler
groping–or attempting to grope–various male employees. After Peggy Lewis
completed the interviews, she again met with John Lewis to report her findings. After
confirming Peggy Lewis's findings, John Lewis met with Wheeler to discuss the
accusations made against her. John Lewis explained to Wheeler that several of her co-
workers had stated that, on numerous occasions, she had touched her male co-
workers' genitalia.

      In response, Wheeler denied the specific allegations, but admitted that she–and
her co-workers–engaged in various types of "horseplay," which included discussing
each others' sex lives and sex toys during "dirty hour,"5 placing "kick me" signs on
co-workers' backs, squirting alcohol or other liquids at each other, and placing rubber
snakes or spiders on the assembly line. Based upon its investigation, Aventis placed
Wheeler on paid leave.

       John Lewis then consulted with his supervisors about the appropriate course
of action. Cheryl Flood, the Director of Associate Relations, made the decision to




      5
       Apparently, the workers in this department developed a tradition of frequently
engaging in puerile and lewd behavior during a certain portion of the work day and
coined the curious epithet "dirty hour" to describe the tradition.

                                         -3-
terminate Wheeler's employment. According to Aventis, Wheeler was terminated
because she violated the company's sexual-harassment policy, which states:

      The Company will not tolerate any form of harassment against
      associates, by its executives, managers, co-workers. . . . [S]exual
      harassment also includes . . . repeated offenses, excessive flirtations,
      advances or propositions, obscene or sexually oriented language or
      gestures . . . and offensive physical contact such as grabbing, patting,
      pinching or brushing against another's body. It refers to behavior which
      is not welcome, which is personally intimidating, hostile or offensive,
      which debilitates morale, and/or shall therefore interfere with their work
      effectiveness.

After Wheeler's termination, the remaining employees in the department were
verbally warned that no more horseplay would be tolerated.

       Approximately one year after this warning issued, another worker in Wheeler's
former department informed Aventis that a fellow employee, Joe Don Harrell, had
acted contrary to its policy. Specifically, Harrell had–at some point in the
past–smeared grease on a female co-worker's buttocks, and grabbed the breasts of two
of his female co-workers. In response to this information, Peggy Lewis advised John
Lewis of the allegations regarding Harrell. Aventis began an investigation into
Harrell's behavior that followed the same course as the Wheeler investigation. After
substantiating the claim against Harrell, Aventis terminated his employment for
inappropriate touching in violation of its sexual-harassment policy.

      Also, approximately one year after Wheeler's termination, an allegation was
made that Toni Conrad, a white female in Wheeler's department, would expose her
breasts to others upon request. Aventis reprimanded Conrad but did not subject her
to any other disciplinary action for the alleged exposure. According to Wheeler,
Aventis's delayed handling of the allegations against Harrell and Conrad reflect its


                                         -4-
unwillingness to investigate the "horseplay" claim against her in a non-discriminatory
manner.

                                    II. Discussion
        Our de novo review of summary judgments is well established. A moving party
is entitled to summary judgment only if the pleadings, discovery, and affidavits show
that there is no genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c). To avoid summary judgment, the
nonmoving party must make a sufficient showing on every essential element of her
case on which she bears the burden of proof. Osbourn v. E.F. Hutton & Co., Inc., 853
F.2d 616, 618 (8th Cir. 1988). However, in employment discrimination cases, because
intent is inevitably the central issue, we apply the standard with caution. Gill v.
Reorganized School Dist. R-6, Festus, Mo., 32 F.3d 376, 377 (8th Cir. 1994).

      Because Wheeler adduced no direct or circumstantial evidence of
discrimination, her discrimination claim is subject to the burden-shifting method of
proof first described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05
(1973). Under this method, Wheeler must first establish a prima-facie case of racial
discrimination, and if Aventis offers a legitimate, nondiscriminatory explanation for
Wheeler's discharge, then Wheeler must show that Aventis's explanation is merely a
pretext for racial discrimination. Id.

                                            A.
       Wheeler's first task is to establish the minimal requirements for a prima-facie
case of race discrimination. To make a prima-facie showing of discrimination,
Wheeler must prove 1) that she is a member of a protected group; 2) that she was
meeting the legitimate expectations of her employer; 3) that she suffered an adverse
employment action; and 4) that circumstances exist which give rise to an inference
of discrimination. Williams v. Ford Motor Co., 14 F.3d 1305, 1308 (8th Cir. 1994).
There is no dispute as to the first three elements. Thus, if Wheeler can show

                                          -5-
circumstances that give rise to an inference of discrimination, she has satisfied the
first stage of the McDonnell Douglas analysis.

       Wheeler can establish the remaining element by producing facts that similarly-
situated employees, who are not black, were treated differently. We then consider, for
purposes of evaluating Wheeler's prima-facie case, "whether the employees are
involved in or accused of the same or similar conduct and are disciplined in different
ways." Id. at 1309. Here, Wheeler was accused of–and ultimately terminated
for–inappropriately touching male employees' sex organs. Wheeler acknowledged
that some touching took place but took issue with its characterization. She contended
that the conduct was not unwelcome and should not be classified as anything but
"horseplay"or having been done in jest. She argued that other employees often
engaged in such "horseplay" at work and received little–or no–resulting discipline.

        The test to determine if one is "similarly situated" varies at each stage of a
McDonnell Douglas analysis. At the prima-facie stage it is "not onerous," however
at the third stage (proving pretext) it is "rigorous." Ford Motor Co., 14 F.3d at 1308.
Considering the low threshold at the prima-facie stage, we hold Wheeler established
each requisite element of her prima-facie case. The undisputed facts showed that
several employees engaged in "horseplay" that was–at least arguably–comparable to
Wheeler's alleged actions, and Aventis imposed different sanctions.

                                          B.
       In turn, Aventis responded to Wheeler's prima-facie case of discrimination with
what it contended was a legitimate, nondiscriminatory explanation–that Wheeler was
terminated based on her violation of its sexual-harassment policy. The investigating
supervisors believed that Wheeler had physically grabbed–and attempted to grab–her
male co-workers' genitalia on numerous occasions. We agree that an employee's
termination for violation of a sexual-harassment policy could be a legitimate, non-
racially discriminatory basis.

                                         -6-
                                         C.
       Thus, the inquiry now moves to the question of pretext–whether Wheeler
produced sufficient evidence that the proffered reason was not the true reason for
Aventis's decision to terminate. Wheeler attempted to show pretext with evidence of
inconsistent disciplinary action for (in her view) comparable conduct of other
employees, evidence of racial animus, a "grossly inadequate investigation" into her
allegation of "horseplay," missing documents, and conflicting stories. Thus, the sole
issue in this disparate treatment race-discrimination claim is whether any of this
evidence creates a genuine issue of material fact in support of her claim that Aventis's
stated reason for terminating her was not true and that Aventis intentionally
discriminated against her because of her race in violation of Title VII of the Civil
Rights Act and the Missouri Human Rights Act.

       Addressing Wheeler's initial claim of pretext–discriminatory discipline–it must
be repeated that the burden for establishing "similarly situated" at the pretext stage
is rigorous. For discriminatory discipline claims, employees are similarly situated
only when they are involved in or accused of the same offense and are disciplined in
different ways. Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994).
First, Wheeler argues that her termination for grabbing co-workers' genitalia was
merely a pretext for discrimination because Conrad, a white employee, was not
disciplined for a similar incident (exposing her breasts). While instances of disparate
treatment can support a claim of pretext, Wheeler must prove that she and Conrad
were similarly situated in all relevant respects. Lanear v. Safeway Grocery, 843 F.2d
298, 301 (8th Cir. 1988). "'Employees are similarly situated when they are involved
in or accused of the same offense and are disciplined in different ways.'" Harvey, 38
F.3d at 972 (quoting Boner v. Board of Comm'rs, 674 F.2d 693, 697 (8th Cir. 1982))
(emphasis added).

      We find that Conrad and Wheeler were not similarly situated because their
offenses differed substantially. Although they were both involved in sexual

                                          -7-
"horseplay," their alleged actions involved differing levels of misconduct towards
others. Taking the facts in the light most favorable to Wheeler, during their alleged
"horseplay" Conrad exposed her breasts on request, while Wheeler grabbed male co-
workers' private area in a way that–according to the men interviewed–was offensive.
Sexually-offensive conduct that involves physical contact is not the same as offensive
comments, gestures, or lewd displays. Aventis was not obligated to treat the two
behaviors as substantially similar because they involved objectively different conduct.
Ward v. Procter & Gamble Paper Products Co., 111 F.3d 558, 560–61 (8th Cir.
1997). The record reflects that the only other employee accused of touching co-
workers' genitalia received the same discipline as Wheeler–termination.

       Next, Wheeler attempts to show pretext by presenting evidence that two of her
co-workers expressed racial animus by stating that women and blacks at Aventis were
"untouchable." The implication of the comment was that the declarants reflected bias
in their belief that blacks received preferential treatment from the company. However,
these comments were not made by decision makers and–because Wheeler is not
alleging a racially-hostile work environment–are thus irrelevant. Aucutt v. Six Flags
Over Mid-America, Inc., 85 F.3d 1311, 1315–16 (8th Cir. 1996).

       Wheeler next claims that Aventis inadequately investigated her complaints
about inappropriate behavior on the assembly line. Specifically, she notes that no
black employees were interviewed in the course of the investigation into her conduct,
and that had Aventis been more diligent it would have uncovered Harrell's breast-
touching conduct a year sooner. To the contrary, Peggy Lewis claimed that she only
conducted interviews that she considered relevant and explained that she limited her
interviews to possible victims or witnesses to the alleged touching, and others as
names were revealed to her. Wheeler attempts to discredit Peggy Lewis's rationale by
noting that her accuser was not interviewed.




                                         -8-
       Wheeler's argument misses the point. Peggy Lewis's limited investigation was
based upon a valid business judgment. We, therefore, are not permitted to review the
logic behind the decision. Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8th
Cir. 1995). Also, even if Aventis had been faster or more complete in questioning its
employees (thereby perhaps discovering Harrell's touching episode), it nonetheless
does not follow that Wheeler was discriminated against on account of her race. At
best, it proves that Aventis was derelict in expeditiously discovering sexual
harassment in its workplace.

       Finally, Wheeler argues that the fact that there was conflicting testimony
regarding the grabbing episode (and the fact that Aventis failed to produce any of her
peer reviews) might lead a jury to conclude that the touching never occurred. The
district court assessed these arguments and found that none of the evidence cited by
Wheeler produced a material-disputed fact.6 We agree. Such allegations, even if true,
do nothing to establish that the reason stated by Aventis for the discharge was
pretextual. Our inquiry is not whether Aventis's decision was correct or wise but only
"whether [the reported incident] was the real reason for [Wheeler's] termination and
not a pretext for [race] discrimination." Gill, 32 F.3d at 379.

                                    III. Conclusion
       Wheeler failed to establish that Aventis's proffered reason was pretextual.
Wheeler's proof did not put in dispute Aventis's evidence that there was a factual
basis for the several reports that Wheeler grabbed male co-workers' genitalia and that
Aventis believed that the reported conduct–which violated its published sexual-
harassment policy–was a proper basis for its decision to discharge Wheeler. Wheeler
has not shown that she was treated differently than any other similarly-situated

      6
        The district court found that Aventis typed the contents of the hand-written
peer reviews and discarded the original handwritten notes. Aventis supplied Wheeler
with the typed version of the peer reviews. Wheeler made no issue of the discovery
process.

                                         -9-
Aventis employee. Consequently, we affirm the district court's order granting
summary judgment to Aventis.
                    ______________________________




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