                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-1556
                        ___________________________

                                   Michael Young

                       lllllllllllllllllllll Plaintiff - Appellant

                                           v.

                             Builders Steel Company

                      lllllllllllllllllllll Defendant - Appellee
                                     ____________

                     Appeal from United States District Court
                 for the Western District of Missouri - St. Joseph
                                 ____________

                          Submitted: February 12, 2014
                              Filed: June 9, 2014
                                ____________

Before RILEY, Chief Judge, LOKEN and BYE, Circuit Judges.
                              ____________

BYE, Circuit Judge.

      Michael Young brought this employment discrimination case claiming race
discrimination and retaliation against his former employer Builders Steel Company
("Builders Steel"). The district court1 granted summary judgment to Builders Steel
on both claims. Young now appeals. We affirm.

                                          I

      Young, an African-American male, was employed with Builders Steel for
twenty-six years. Builders Steel is a structural steel fabricator and constructor
operating in Kansas City, Missouri. Until major lay-offs in 2011, Builders Steel
employed about twenty-three people in its Kansas City shop. From 2009 until his
employment ended in May of 2011, Young was the only African-American employee
of Builders Steel.

       Young was a member of Local Union No. 520 of the International Association
of Bridge, Structural, Ornamental and Reinforcing Iron Workers ("the Union"). Some
other, but not all, employees at Builders Steel were members of the Union. The
Union and Builders Steel executed contracts every three years; those contracts
governed the working conditions of the union-members and the relationship between
the Union and Builders Steel. Two such agreements are relevant to this appeal, the
2005 Union Agreement and the 2008 Union Agreement ("the Union Agreements").
The 2005 and 2008 Union Agreements are similar in all relevant aspects. The Union
Agreements divided the shop employees into separate job classifications and assigned
each job classification a "Wage Group." The Union Agreements state:

      Each of the Company's employees shall be classified in accordance
      within the hereinafter mentioned classification which covers the class of
      work in which he is employed by the Company . . . [E]ach employee
      shall be paid within the wage range, if applicable to the classification,



      1
       The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.

                                        -2-
      but not less than the minimum hourly wage rate set forth . . . for the
      classification in which such employee is included or classified.

Aplt. Add. at 23, 41. Before being laid-off, Young was in Wage Group 3. Pursuant
to the Union Agreements, Wage Group 3 contains three different job classifications:
Welder A, Burner A, and Maintenance/Machine Operator A.

       The Union Agreements contain provisions providing seniority status to
long-serving workers. The Union Agreements provide "in all cases of increase or
decrease in forces, the following factors will be taken into consideration: (1) length
of continuous service, (2) ability, and (3) experience. Ability and experience being
equal, preference shall be given the employee with the greatest length of continuous
service." Aplt. Add. at 29-30, 47-48.

       Young began working for Builders Steel in 1985 as a "Helper" in the
production department, which is commonly referred to as "the shop." In November
1992, Young was promoted to the position of "Layerout/Fitter Welder A," which was
assigned to Wage Group 1A. In January 2007, Young requested to "bid down" to the
position of Burner A, which he claims was done on the request of Builders Steel.
"Bidding down" refers to an employee requesting a transfer to a lower-classified job
position. Burner A was assigned to Wage Group 3 in the Union Agreements. Young
was transferred down to Burner A and his rate of pay was reduced from $17.58 per
hour to $16.47 per hour. At the time of his "bid down," Young was not a certified
welder, and was therefore not qualified to be a Welder A, but there is no certification
or machine qualification needed to be qualified as a Burner A. Young claims
Builders Steel promised Young a pay-raise back to his original hourly rate before
Young bid down. Young did not receive any pay-raise after bidding down.

      A round of layoffs ensued in October 2009, because of a decreased demand for
business, but those layoffs did not impact Young.


                                         -3-
       Young has filed a number of complaints about Builders Steel asserting race
discrimination claims regarding the bidding down process and Builders Steel's
subsequent failure to increase Young's wage. On March 2, 2009, Young filed a
Charge of Discrimination with the Missouri Commission on Human Rights
("MCHR") and the Equal Employment Opportunity Commission ("EEOC"). Young
filed a second Charge of Discrimination on October 14, 2009. On March 15, 2010,
Young filed a lawsuit against Builders Steel in the Circuit Court of Jackson County,
Missouri. On September 13, 2010, Young filed a grievance with Builders Steel again
asserting many of the same allegations filed in state court.

       On May 27, 2011, Builders Steel laid off twelve employees in the shop,
including Young, due to the decline in available work. Young was the most senior
person laid off and was the only employee classified as Burner A to be laid off. The
parties contest how many employees were retained after the May 27, 2011, layoffs.
According to Builders Steel, employees with the most skills were retained and Young
was qualified only to be a Burner A, but not a Welder A or a Maintenance/Machine
Operator A (the other Wage Group 3 jobs). However, Builders Steel claims any
person classified as Welder A or Maintenance/Machine Operator A is necessarily
qualified to perform the job duties of, and could be qualified as, a Burner A.

      Later, two workers who had been laid off were called back to work, each of
whom had less seniority than Young, but Young was not called back. Those two
workers had higher job classifications than Young. One was a "Group Lead" and
"Machine Operator A" and the other was a "Material Handler." Young does not claim
he was qualified to perform any of these jobs.

       On February 29, 2012, Young commenced this lawsuit in the United States
District Court for the Western District of Missouri, alleging discrimination and




                                        -4-
retaliation in violation of 42 U.S.C. § 1981. Builders Steel moved for summary
judgment on both of Young's claims, which the district court granted. Young now
appeals.

       On appeal, Young argues the district court improperly granted summary
judgment because genuine issues of material fact exist and the district court
erroneously weighed the evidence and failed to view the evidence in the light most
favorable to Young. Young specifically appeals two issues: (1) whether Young
presented sufficient evidence to establish a prima facie case of race discrimination;
and (2) whether Young presented sufficient evidence to establish a prima facia case
of retaliation for opposing race discrimination.

                                          II

       "We review a district court's decision to grant a motion for summary judgment
de novo, applying the same standards for summary judgment as the district court."
Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 514 (8th Cir. 2011).
Summary judgment is appropriate "if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(a). In considering summary judgment motions, the burden
of demonstrating there are no genuine issues of material fact rests on the moving
party, and we review the evidence and the inferences which reasonably may be drawn
from the evidence in the light most favorable to the nonmoving party. Davis v.
Jefferson Hosp. Ass'n, 685 F.3d 675, 680 (8th Cir. 2012). The non-moving party
must substantiate his allegations by "sufficient probative evidence [that] would permit
a finding in [his] favor on more than mere speculation, conjecture, or fantasy." Mann
v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007) (quotation and citation omitted).
"Where the record taken as a whole could not lead a rational trier of fact to find for
the nonmoving party, there is no genuine issue for trial." Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc).

                                         -5-
                                           A

        To survive a motion for summary judgment on the race discrimination claim,
Young must either "present admissible evidence directly indicating unlawful
discrimination," or alternatively, Young could create "an inference of unlawful
discrimination under the burden-shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973)." Humphries v. Pulaski Cnty. Special
Sch. Dist., 580 F.3d 688, 692 (8th Cir. 2009) (internal quotation marks and citations
omitted). "To prove intentional discrimination through direct proof, a plaintiff must
establish '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 employer's decision.'" Gibson v. Am.
Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012) (quoting Putman v. Unity Health
Sys., 348 F.3d 732, 735 (8th Cir. 2003)). Because Young did not present direct
evidence of race discrimination, we analyze his claim under the McDonnell Douglas
burden-shifting framework. See Barber v. C1 Truck Driver Training, LLC, 656 F.3d
782, 792 (8th Cir. 2011).

       Under the McDonnell Douglas framework, a presumption of discrimination is
created when the plaintiff meets his burden of establishing a prima facie case of
employment discrimination. Davis, 685 F.3d at 681. To establish a prima facie case
for race discrimination, "a plaintiff must show (1) he is a member of a protected class,
(2) he met his employer's legitimate expectations, (3) he suffered an adverse
employment action, and (4) the circumstances give rise to an inference of
discrimination (for example, similarly situated employees outside the protected class
were treated differently)." Gibson, 670 F.3d at 853-54 (internal quotation omitted).
Once a plaintiff successfully establishes a prima facie case, the burden then shifts to
the employer to articulate a legitimate, non-discriminatory reason for the adverse
employment action. Davis, 685 F.3d at 681. If the employer meets its burden, the



                                          -6-
presumption of discrimination disappears, and plaintiff is required to prove the
proffered justification is merely a pretext for discrimination. Id.

       The parties do not contest Young is a member of a protected class, he met
Builders Steel's legitimate expectation, and he suffered an adverse employment
action. The parties do contest whether Young has established circumstances giving
rise to an inference of discrimination. Although evidence of pretext is normally
considered at the last step of the McDonnell Douglas analysis, pretext can also satisfy
the inference-of-discrimination element of the prima-facie case. Lake v. Yellow
Transp., Inc., 596 F.3d 871, 874 (8th Cir. 2010). At the inference-of-discrimination
stage, "[a] plaintiff may show pretext, among other ways, by showing that an
employer (1) failed to follow its own policies, (2) treated similarly-situated employees
in a disparate manner, or (3) shifted its explanation of the employment decision." Id.
Young argues he can show an inference of discrimination in three ways: (1) by
showing similarly situated persons were treated more favorably; (2) by showing
Builders Steel failed to follow its own policy; and (3) by showing Builder Steel's
explanation is unworthy of credence.

       Young first argues similarly-situated persons were treated more favorably. For
such a claim, Young must show the employees were "similarly situated in all relevant
respects." Chappel v. Bilco Co., 675 F.3d 1110, 1119 (8th Cir. 2012); see also Riser
v. Target Corp., 458 F.3d 817, 822 (8th Cir. 2006) (determining the plaintiff's co-
workers were not similarly situated because, among other things, the co-workers had
different job duties and job positions). Even though other employees were in Wage
Group 3, there were no other employees who were classified as Burner A. The Wage
Groups were a form of union negotiation and organization to systemize pay, but were
not necessarily linked to similar jobs. Members of Wage Group 3 performed different
jobs and required different types of certifications and different knowledge to perform
those jobs. Young cannot show he was similarly situated "in all relevant respects"



                                          -7-
to any of the other Wage Group 3 employees because he cannot show he could
perform their jobs. See Chappel, 675 F.3d at 1119.

       Young next argues Builders Steel failed to follow its own policy, yet Young
has failed to show Builders Steel did, in fact, deviate from stated policy. The Union
Agreements did not require layoffs to happen by seniority, but rather indicated when,
out of two otherwise identical employees in aptitude and skill, one needed to be laid-
off, the one with less seniority would be the one to suffer the layoff. Builders Steel
did not breach the Union Agreements or any other policy in laying off Young and
keeping less-senior but more skilled and versatile workers.

       Finally, Young argues Builders Steel proffered false explanations and lists four
untruths he believes Builders Steel propagated: (1) Young was not promised a pay
raise after his voluntary demotion; (2) the October 2009 layoff was based on job
classification and not just seniority; (3) the May 2011 layoff was based on job
classification to enable most efficient continued operations; and (4) two employees
called back to work in October 2011, worked in job classifications higher than
Young. Regarding whether Young was promised a raise after his voluntary demotion,
even if a question of fact remains on this issue, it is insufficient to create an inference
of discrimination because the demotion was voluntary and occurred years before the
layoff. Additionally, Young cannot show any casual connection or pretext regarding
the failure to increase his pay. See Davenport v. Riverview Gardens Sch. Dist., 30
F.3d 940, 945 (8th Cir. 1994) (affirming summary judgment on race discrimination
claims where "plaintiff presented no such evidence other than his own
unsubstantiated allegations in deposition[,]" and concluding that "[i]n light of
plaintiff's failure to adduce any independent evidence to substantiate his disparate
treatment claim, we agree with the district court that there is no genuine issue of fact
on the issue of pretext . . . .") (internal citation omitted). Young's additional claims
fail because the claims are based on the flawed argument that all jobs in Wage Group



                                           -8-
3 were the same; however, the evidence, even in the light most favorable to Young,
shows all Wage Group 3 jobs are not the same.

      Young is therefore unable to show a prima facie case of discrimination because
he has failed to show circumstances which would give rise to an inference of
discrimination. Because Young has failed to show a prima facie case of
discrimination, we need not engage in the McDonnell Douglas burden-shifting
analysis to affirm the grant of summary judgment to defendants.

                                          B

       To survive a motion for summary judgment on a retaliation claim, Young must
show a prima facie case of retaliation. To establish a prima facie case of retaliation,
a plaintiff must show "that (1) [he] engaged in statutorily protected activity; (2) an
adverse employment action was taken against him . . . ; and (3) a causal connection
exists between the two events." Gacek v. Owens & Minor Distrib., Inc., 666 F.3d
1142, 1146 (8th Cir. 2012) (quotation and citation omitted). If a plaintiff can
establish a prima facie retaliation case, the defendant must provide a legitimate,
nondiscriminatory reason for its decision. Davis, 685 F.3d at 684. If the defendant
does so, the burden then shifts back to the plaintiff to show that the proffered reason
was merely a pretext for discrimination. Id.

       Young established he engaged in a statutorily protected activity by filing
administrative charges and lawsuits against Builders Steel. Young also established
adverse employment action was taken against him when Young was laid off in May
2011. See Gacek, 666 F.3d at 1146. However, Young has failed to demonstrate the
protected conduct had a casual connection to the adverse actions taken against him.
Young again argues three pieces of evidence would allow a jury to infer retaliation,
(1) evidence similarly situated employees were more favorably treated; (2) evidence
Builders Steel failed to follow its own policies; and (3) evidence Builders Steel's

                                         -9-
proffered explanations are unworthy of belief. For the same reasons these arguments
fail to show discrimination, they also fail to show retaliation. See supra, at 7-8.
Young has failed to show direct or inferential evidence Builders Steel engaged in
retaliation and we affirm the grant of summary judgment to defendants on Young's
retaliation claim.

                                        III

      Accordingly, we affirm the judgment.
                     ______________________________




                                       -10-
